IN THE MATTER OF AN ARBITRATION

BETWEEN:

CITY OF OTTAWA
("the Employer")

,A,ND:

ATU, LOCAL279
("the Union")

IN THE MATTER OF:

STATED QUESTIONS RE: SCHEDULING WORK

SOLE ARBITRATOR:

Kevin M. Burkett

APPEARANCES FOR EMPLOYER:

Charles Hofley - Counsel

Siobhan O'Brien

APPEARANCES FOR UNION:

David Jewitt - Counsel

Alison Longmore
 I have before me a number of stated questions arising from the scheduling of
operators subsequent to the issuance of an interest arbitration award (dated October 9,

2009 and January 7, 2010) following a lengthy strike between the parties. These

questions are attached as Appendix "A" to this award. There is no dispute with respect

to my jurisdiction to hear and determine these matters.

It is imperative to understand that, prior to the strike, employees had configured

their own work (since 1989) based on longstanding scheduling rules that, for the most

part, were not found in the collective agreement. In bargaining for the current
agreement the Employer sought major changes to these scheduling rules, including the

right to configure the work. The Union resisted these changes. Hence the lengthy

strike that was not ended until the issues in dispute, including the scheduling issues,

had been referred to the Keller interest arbitration board. As noted, the Kelier board

handed down its main award on October 9,20A9 and a supplementary award dealing

with residual scheduling issues on January 7,20L0. It is important to record that the

Keller board remained seized.

In the normal course, an interest board of arbitration remains seized until the

parties enter into a formal collective agreement, at which point it becomes functus and

any dispute as to the meaning or application of the collective agreement is submitted

to rights arbitration. These parties have not as yet entered into a formal collective

agreement. However, the document has been prepared for signature, such that any

objection to my jurisdiction on this basis (of which there was none) would have been
technical. However, what sets this matter apart is the fact that, over time and going

forward, the scheduling rules, for the most part, do not form part of the collective

agreement. In the result, I am being asked to award upon the language of the Keller

awards read within the context of the positions taken by the parties before that board

and the submissions made by the parties to that board in support of their respective

positions.

in this regard, an overarching question arises. Did the Keller board, in awarding

in favour of the Employer, intend to, in effect, erase the longstanding scheduling rules

(that existed outside the collective agreement) such that the scheduling parameters

going forward would be as set out in the Employer's position tabled at arbitration or,

as the Union submits, did the Keller board decide that even though henceforth the

Employer, not individual employees, would configure the work, it would do so in

conformance with the long accepted scheduling rules?

The answer to this question should in large part resolve the first stated question

that has been submitted to me. Whereas I could provide the parties with an answer

based on my reading of the Keller awards in light of the submissions of the parties to

that board, I am at a loss to understand why the Keller board has not been asked this

question. The Keller board, which remained seized, knows with absolute certainty

whether or not it intended to, in effect, wipe the slate clean and proceed with a
scheduling regime based upon the Employer's proposal that was tabled before it.

Furthermore, the better labour relations result is to have the question answered in the
forum where, whatever answer is given, that answer must be accepted by both parties

as the right answer, i.e. the answer intended by the board constituted to resolve the

scheduling dispute that precipitated the strike.

Having regard to the foregoing, I have decided to adjourn these proceedings in

order to allow the parties to appear before the Keller board for the purpose of having

this overarching question answered. Because the parties will be returning to the

bargaining table in one month's time, I would expect the Keller board to schedule a

hearing on an expedited basis.

Although stated questions #2 and #3 were dealt with by the Keller board in its

supplementary award, the same considerations apply. In regard to stated question #2,

there is an underlying question as to whether the Keller board was of the view that it

was dealing with an Employer proposal or a Union proposal and a further question,

given the fact that for the most part the scheduling rules have been outside the

collective agreement, as to what the Keller board meant when it stipulated that "no

collective agreement language change is required for mixed odd work." Again, it is

the Keller board that continues to be seized and knows with absolute certainty the

answer to these questions.

In regard to stated question #3, there is an underlying question, given the

existence of separate operator spareboard rules and procedures that form part of the

collective agreement, as to whether the Keller board intended to restrict spares to 72-
hour spreads. Again, it is the Keller board that knows with absolute certainty the

answer to this question.

Accordingly, for the reasons advanced in respect of stated question #1, I also

decline to answer stated questions #2 and #3. I do so in order to afford the parties the

opportunity to have the underlying questions that they raise put to the Keller board

and to thereby have these questions answered in the forum where, whatever answer is

given, that answer must be accepted by both parties as the right answer. I do so in the

expectation that whatever answers are given will resolve the issues that have

prompted the stated questions before me.

However, I remain seized in the event that there are any residual 'rights'

questions and any questions concerning remedy.

Dated this 25th day of Novemb er 20lA in the City of Toronto.

,(ta;^ gt,,kfr
K-evn BuRrErr
 Appendix "A"

ATU, Local 279 v City of Ottawa

Stated Questions Re: Transportation Scheduling Grievance

Does the Scheduling system awarded by the Keller Interest Awards on October 9,
2009 and January 7,20L4 allow the Employer:

1. To make changes from the pre-Keller regime to Day Runs and Relief Runs,
specifically:

a. Require Day (Straight) runs to extend beyond 2A:59?

b. Create Day and Relief (Straight) runs from Monday to Friday that
exceed 9:29 (9 hours and 29 minutes)?

c. Create Day and Relief (Straight) runs on Saturday that exceed 8.5 hours?

d. Create a Day (Straight) Work that requires an Operator to switch buses

(i.e. to create Day Work comprised of more than 1 Run on 1 bus)?

e. Create a Relief (Straight) Work that requires an Operator to switch buses

(i.e. to create Relief Work comprised of more than 1, Run on 1- bus)?

?" To make changes from the pre-Keller regime to Mixed Odd Work, specifically:

a. Create Mixed Odd Work that exceeds 8.5 hours?

b. Require Mixed Odd Work to extend beyond 20:59?

3" To schedule Spares to work a spread up to L2.5 hours?