Bargaining unit work not contracted out

The transit utility normally used drivers to perform ad hoc ridership counts. The union grieved when it contracted out a system-wide survey. The arbitrator found that the earlier work was not significant enough to meet the threshold.

When a municipal employer engaged a consulting company to track transit ridership, the union grieved.

In the summer of 2011, a municipal employer undertook a comprehensive review of its entire transit system. The city said it wanted to rebalance the supply and demand for transit and reduce the system’s environmental impact.

On Oct. 17, 2011, the city notified all its Transit Operators that field surveyors would be riding the buses for a two-week period to count the numbers of passengers getting on and off the buses at all the designated stops.

The union grieved.

The union opposed the employer’s plan to engage an outside contractor to conduct traffic counts.

The union argued that the collective agreement contained clear proscriptions against the contracting out of bargaining unit work. Traffic counts were bargaining unit work, the union said.

Transit Operators often conducted traffic counts in the course of their work.

Typically, when new factories opened, or when the city was determining whether or not to lay out a new bus route, or on special days like Canada Day, bus drivers would be asked to keep track of the number of passengers who got on or off at a particular stop or stops.

Sometimes a driver would jot the passenger numbers on a clipboard. Other times, the driver would radio in the numbers.

The employer had never assigned a second operator to ride and make the counts.

Contract premium

In addition, the collective agreement spelled out a 50¢ per hour premium for drivers when they were conducting traffic counts.

Traffic counts were bargaining unit work and the collective agreement prevented the employer from contracting out that work, the union said.

The employer argued that the traffic counts conducted by drivers were incidental and occasional. The counts were not conducted with enough regularity to qualify as bargaining unit work.

As well, the cursory and partial counts occasionally conducted by drivers of a handful of stops were not on a comparable scale with the comprehensive review being conducted by the contractor, which was checking every stop on every route.

There was no evidence that the integrity of the bargaining unit was in any way affected by the work of the surveyors, the employer said.

The Arbitrator agreed.

The collective agreement did prevent the employer from contracting out bargaining unit work. The question at issue was whether or not the proposed survey work could be considered to be the same work that was normally carried out by bargaining unit members.

Frequency, volume, regularity

The work was not the same, the Arbitrator said.

Citing the test formulated by Arbitrator Luborsky in Re Central York Fire Service, the Arbitrator said it was necessary to assess “whether the work in question was done by bargaining unit members with sufficient frequency, volume or regularity over a reasonable period of time, including whether the work was done on a consistent or constant basis and if its removal or transfer would undermine the integrity of the bargaining unit.”

In this case, the traffic counts in question were only part of a comprehensive review of the transit system. The passengers were not only being counted, they were also being asked to participate in a survey.

The customary work of Transit Operators is managing all the tasks associated with driving a bus, the Arbitrator said. There was no attempt to contract out that work.

The Arbitrator acknowledged that Transit Operators had conducted traffic counts and that a premium was paid for that work in accord with the collective agreement. However, traffic counts did not form part of the normal, daily work of Transit Operators.

“The scope of the counting performed by the [surveyors] is significantly different from the traffic counts conducted by the Transit Operators. The Transit Operators have only conducted partial counts for up to five stops, infrequently, for very different purposes and under limited circumstances. Therefore, I do not find that the traffic counts performed by the [surveyors] is bargaining unit work that is customarily carried out by bargaining unit members.”

The grievance was dismissed.

Reference: The Corporation of the City of Brantford and Amalgamated Transit Union. Diane Brownlee — Sole Arbitrator. Beverley Burns for the Union. Robert J. Atkinson for the Employer. July 6, 2012. 15 pp.

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