HomeMy WebLinkAbout1986-0199.Marles.88-07-04IN TBE MATTER OF AN ARBITRATIOU
Under
THE CROWN RMPLOTEES COLLECTIVE BARGAINING ACT
Befdre
THE GRIEVANCE SETTLEMENT BOARD
OPSEU (Marles)
-and-
The ~Crown in the Right~of Ontario (Min. of Transportation and Communication)
Grievor
Employer
Before: J. -Forbes-Roberts Vice-Chairman
H. Roberts Member
L. Robbins Member
For the Grievor:
For the Emolover:
P. Luckaslewicz Counsel Gowling and Henderson Barristers. and Solicitors
K.B. Cribbie Staff Relations Advisor Staff Relations Office Ministry of Transportion
Hearing: December 15. 1987
The Facts
This case involves a dispute over the amount of travel
time that the grievor should be allowed pursuant to Article
23.: of the collective agreement.. Article 23.1 states:
Employees shall be credited with all time
spent in travelling outside of working hours
when authorised by the ministry.
The Employer had a preliminary objection to this Board's
jurisidiction to hear the case. it was the Employer's position
that the grievance had not been filed in a timely fashion
pursuant to Article 27 of the collective agreement. However,
Employer' s counsel agreed to argue his preliminary objection
along with the merits and the matter thus proceeded.
The grievor normally performed construction work at the
Baldwin Ministry of Transportation and Communication ("M.T.C.")
yard. In the winter of 1385, he was reassigned to maintenance
work at the arechin yard. This involved travelling
approximately thirty-two (32) miles each way on a daily basis.
He worked the "grave yard" shift, from lO:OO p.m. to E:CC a.m.
and the period of reassignment was from November 17, i365 to
December 24, 1965 when he was laid of'f.
There is no dispute that over the course of this
reassignment, the grievor was entitled to a travel time
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allowance. Rather, as earlier indicated, the dispute hinges on
the amount of time which should be allowed. The grievor claims
the round trip took two (2) hours, or one (1) hour each way.
The Employer contends that the round trip took one hour and
forty minutes, or fifty (50) minutes each way.
The grievor was required to submit a Living Expense
Eligibility and Authorization Report (the "Expense Report").
Because of the hours of his shift, virtually his only contact
with Management was by telephone, or by notes left for him.
Just such a note, dated November 23, 1955 (but not receiiied
until December 3, 1965) was left for the grievor regarding his
Expense Report. The note was from Mr. Frank Gollinger, an Area
Patrol Supervisor, Maintenance Division. It documented a minor
defect in the manner in which the Expense Report had been
filled out. More importantly, with respect to the applied for
travel time allowance, it states:
Also 60 minutes is a little high, about 50
minutes would be closer.
(emphasis added)
.The grievor responded by a note dated December 3,
That note stated in part:
1ss5.
3
I drive both ways - to and from work - all
In night time boars (darkness) mostly
with snowing a slippery conditions. One ho.ur
(60 minutes) is not high at all, some
runs even take longer for safety. I have
consulted with our union and I am leavinq
travellin q eliqibilitv report as is. Fur-
ther hold aas will be dealt (sic) with
throuqh grievances proceedinqs.
(emphasis added)
This correspondence will become important later vis a vis the
Employer's preliminary objection.
True to his word, the grievor left his Expense Report as
it was. Be maintained his claim for two (2) hours of travel
time per day.
The Maintenance Supervisor, Mr. 3urt Thompson, received
the grievor's Expense Report and he instructed Mr. Gollinger to
check the grievor's claim by driving the route himself. Mr.
Gollinger did so commencing at approximately 3:00 a.m. or:
November 27, 1.936. It was W-. Theompson's evidence that he
first saw the grievor' s Expense Report on.aploroximately
December 3. 1985. Given the date of Gollinger's "test" run,
this is obviously impossible.
Mr . Gollinger testified that he covered the distance of
30.6 miles in 38 minutes. The road conditions were "slushy."
Though he testified that he estimated that the trip would
"usually" take half an hour, he then added twelve (12) minutes
to his actual time in recognition of the fact that. the grievor
travelled in darkness. The end resillt was an estimate of fifty
4
(50) minutes each way, or one (1) hour and fort-y (40) minutes
for a round trip.
The Employer also sought to rely on the evidence of
another bargaining ilnit member transferred from Baldwin to
3reckin in approximately November of 1985. ' ThlS individual
'testified that while he had measured the distance between the
two yards, he had only estimated the travel time. Ris evidence
on that issae is therefore of no assistance. What is of
assistance is his agreement with the suggestions that at 6~00
a.m. there is heavy truck traffic on the roilte, that the route
is hilly, and that a fully loaded truck cannot do the 90 'k.p.h.
speed limit going up.hil:.
Mr. Go:;inger reported the results of his "test run" to
Mr. Thompson, who then changed the grievor's Expense Report to
reflect his information. It was undiquted that the grievor
never saw the Expense Report after it was eo altered.
There is however a dls_sute as to whether or not the
grievor was notified in December of the Employer’s rejection of
his expense claim. This proves very Important to the
Employer's preliminary objection regarding the timeliness of
the grievance.
P-ursuant to Mr. Thompson's decision, Mr. Go;Linger
unquestionably had relayed to the grievor the above-mentioned
note dated No-vember 29, i38.5. However, Thompson testified that
in addition, the grievor was immediately notified ;hrOt.@-:
internal mail by the District Office. The grievor claims to
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have received nothing beyond Gollinger's note.
Every two weeks, the grievor was required to submit a
Resource Utlilization Sheet, a document wh-ich basica::y stated
his hours workedand his travel time claim. On each of these
sheets, the grievor's travel time claim has been redilced from,
two (2) hours to one' (1) hour and fourty (40) minutes.
However, it was the grievor's uncontradicted evidence that
these altered documents were not returned to him until "a
couple of days" before he filed his grievance.
In reply evidence, the Union called Mr. Srian Gould. At
the relevant time, he was the President of the Local to which
the grievor belonged. Mr.~&&t&fi& that in late November
or earl-y December of 1985, the grievor telephoned him regarding
two (2) matters, one (1) of which was the November 23th note
from Mr. Gollinger. The grievor read him the note. Gould
advised the grievor to "tell them it' takes an hour." X0
grievance was filed because "nothing had happened yet." I n
other words, Mr. Gollinger's note was viewed as a proposal as
opposed to a fait accomnli. Then in early February 19S6, the
grievor came toMr. Gould with a package containing the
returned Resoiirce STtlization Record Sheets indicating the cut
in claimed travel time.
According Tao Mr. Goii;d, be himself raised the time:iness
issue with the grievor. He queried him as to why he had waited
so long to raise the matter. The grievor responded "3ecause 1
didn't know. They Just gave them to me."
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DECISION
We will deal first with the Employer's objection to the
arbitrability of the grievance.
Employer counsel argued that pursuant to Article 27.2.2,
the grievance was not filed in a timely fashion. The events
giving rise to the grievance occ.urred during the period
November i7 to December 24, 1335. The actual grievance was not
filed until February 4, 1986. Clearly, this proscribes the
time limits set out in Article 27.2.2 of the collective
agreement. 3ecause the time limits are mandatory and not
merely directory, this Board lacks the jurisdiction to
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entertain the grievance.
There is ample law to support the proposition thai the
time limitations are mandatory. However, the "clock" didn't
start to run iintil an individual knew or ou izt to have knocjz of
the events sparking the grievance.
When did the instant grievor know, or ought to have !;nown
that his travel time claim was rejected?
Based on the evidence, there are only three (3) methods by
which he might have acquired this information: (1)
Gollinger's November 29th note, (2) internal mail f r om the
District Cffice, or (3) by the retiirned Resource Ctitlization
Record Sheets. We will deal with these in reverse order.
:t was the grievor's uncontradicted and corroborated
evidence that he did not receive his altered Resource
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Utlization Record Sheets until a few days prior to the filing
of his grievance. Therefore, this source of knowledge could
not have been available to the grievor in Noveinber or December
of 1985.
Mr. Thompson testified that the grievor "would have been
notified" by internal mail of Management's decision to reject
his claim. Mr. Thompson was not responsible for sending such
correspondence, nor could he indicate that he had directed that
it be sent. He was testifying as to the normal procedure, as
he knew it.
Apparently, the grievor did not receive this
correspondence. Given the fact that upon receipt of Mr.
Gollinger's note, he promptly contacted his Local's President,
it does not make sense to assume that he wo.uld have ignored
"official" correspondence from District Office.
This leaves us with Mr. Gollinger's November 29th note.
The narrow issue becomes this: the corresoondence was worded
in such a way that the grievor knew or ought to have 'known that
his claimed travel time was being cut. In examining this
issue, we must also consider the grievor's written response to
the note.
We reiterate the relevant portion of Mr. Gol;inger's wte:
Y
Also 50 minutes is a little high, about
50 minutes would be closer. (emphasis added)
%
We find that this could easily be construed as negotiating
language. Its watered down wording does not readily present
itself as proposing a "take it or fight it" stance.
The grievor's response dated December 3, 1986, can very
easily be construed to state "g you try that, I';: fight." :Xe
contacted his Local Fresident and was specifically to:d,
rightly or wrongly, not to grieve because "nothing had happened
yet.". Following his "threat" to Management, the grievor
received no further correspondence regarding his Expense ZeDort
as submitted.
We find that it is reasonable to assume tlhat the grievor
was unaware of the expenses cut until receiving his returned
Resource 'Jtlization Record Sheets in February of 1306. The
grievance was thus arbitrable and this Board has jurisdiction
to hear it5 merits.
We turn then to the merits.
The grievor was unshaken in his evidence that for the most
part, it took two (2; hours to make the round trip from his
home to the Brechin yard. Ee testified that sometimes it took
longer but very rarely took less time. Iie had measil:*-ed ar:d
timed the trip. It was andlspiited that the grievor travelled
to work prior to 1O:OO p.m. and travelled home after S:DG a.m..
The Employer relied upon the evidence of Mr. Go:;i:>ger.
ae , on one occasion, timed the trip one way. yl:e "test riiri'.'I
was conducted at 3:00 a.m., a time when the grievor was rarely,
3
if ever returning from Work. No effort was made to drive the
route in dar'kness, thereby simulating the conditions under
which the grievor would travel.
Mr. Gollinger did indicate that in his calculations, he
had added twelve (12) minutes to his actual time to account for
"night time driving." There was however, no explanation as to
how he arrived at the figure twelve (12) minutes.
In short, the Employer's calculation of actual travel time
was based on a "test run" conducted at a time of day when the
grievor did not travel, in a type of vehicle that the grievor did
not drive, and artificially altered by an arbitrarily added
twelve (12) minutes.
We find that the Union has discharged the onus of proving
that on a balance of probabilities, it took the grievor two (2)
hours to make the trip from his home to the Brechin yard.
The Bmployer had one final argument. We reiterate the
language of Article 23.1:
Employees shall be credited with all time
spent in travelling outside of working hours
when authorized by the Ministry.
(emphasis added)
Employer counsel argued that unless a given period of :& is
authorised by the Ministry, it need not 'be paid. iA other
words, the Erinistry's authosization does not attach to
guaranteed pa-yment for travel outside of working hours, but
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rather to the exact period of travel time being claimed.
We reject this interpretation. Surely, the Ministry
cannot authorize travel outside of working hours, and then
choose to authorize payment for only some portion of the time
consumed in travelling. We find that the authorization
attaches to the right to be paid for travelling outside working
hours. While the Ministry is free to challenge the claimed
time, following a determination of that issue, it is required
to pay for the fu:l period of travel.
The grievance hereby succeeds. The Employer is directed
to compensate the grievor in the amount of twenty (23) minutes
straight time pay per day for all regularly scheduled days
worked at the Brechin yard between November 16 and December 24,
1385. The Board will remain seized in the unlikely event that
the parties are unable to ar rive at an agreement 0 2
compensation.
Dated at Toronto this 4th day of July , 13aa.
D.J. Forbes-Roberts, Vice Chairman
;-- /’ ..~._ ;: ‘. I <:
L. Rabbii,, , MeinoL
Ii. Roberts, Member