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HomeMy WebLinkAbout1986-1491.Sabatini et al.88-03-15Between Before 1491186, 1492i86, 1493186, 1494106, 1495186 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD OPSEU (D. Sabatini, D. McNeilage, M. Dziedzic, T. Hilts and M. Evans) Grievor And The Crown in Right of Ontario (Ministry of Transportation & Communications) Employer For the Grievers For the Employer Hearing R.L. Verity, Q.C. Vice-Chairman G. Nabi Member D. Montrose Member A. Ryder, Q.C. COUl-lSel Gowling & Henderson Barristers & Solicitors K.B. Cribbie Senior Staff Relations Officer Ministry of Transportation & Communications January 7, 1988 DECISION In this matter five Ministry Survey Technicians filed identical grievances in late November and December, 1986 which al improper denial of overtime payment while travelling on Ministry leged business during,the period August 6, 1985 to July 31, 1986 inclusive. The grievors work as survey crews at various assigned locations. It is common ground that travel to and from a job site is an integral part of the job. All grievors claim entitlement to overtime while driving private motor vehicles,in the transportation of employees and eqyipment to a central meeting point or to the job site, outside : regular working hours. These grievances are said to arise from the G.S.6 Decision dated June 11, 1985 of Vice-Chairman Samuels in OPSEU (Alan Clements) and' Ministry of Transportation and Communications 370/84. The Employer raised the preliminary objection that the grievances were not filed in a timely fashion and were therefore inarbitrable under the combined effect of Articles 27.2.2, 27.13 and 27.16. Indeed, the merit of the claims as opposed to the timeliness argument, was not in dispute. -3 - The Clements case focused on the issue as to whether or not time spent in a Ministry vehicle outside regular working hours was "travelling time" (Article 23) or "overtime" (Article 13). Clements, a Soils Technician, was entrusted with a Ministry vehicle for the season and was required to transport employees and equipmen.t to and from work sites. At p. 3 of the Decision, the Vice-Chairman made the following jurisprudential observations: I . ..The distinction between 'travelling time' and 'overtime' has always rested on whether or not the employee was 'working' at the time. Article 23.1 does not provide for credit for all travelling time, but only for,such time speF'outside of working hours'. And 'working hours' include the regular hours of work plus 'overtime'. The jurisprudence indicates that 'work' involves continuing responsibility towards the employer. If an employee has continuing responsibility during a journey, then the time is characterised as 'overfime', and not 'travelling time'. It has been established since Marcotte, 54/78, that where an employee is the driver of a Ministry, vehicle, and responsible for that vehicle, the driver is entitled to 'overtime' for travel outside regular working hoursI" At p. 4 of the Decision, Vice-Chairman Samuels notes: "When the employee is the ,passenger in the vehicle, the matter is less certain." p------- -4 - After reviewing certain G.S.B. cases, the Vice-Chairman concluded at p. 5: ” . . . it would seem ~that it is less likely that a passenger would be entitled to overtime pay for a journey made out of regular hours, than it is for the driver. However ANWYLL (406/83) demonstrates that if travel is an inherent and substantial part of the employee's job (in AFLL, the grievor was on the road virtually on a daily basis and spent one-third of his regular working hours travelling), and where the grievor uses parts and equipment which are carried in the vehicle and for which he has a measure of responsibility, then even a passenger may be entitled to overtime pay." In the result, Mr. Clements was awarded "overtime" based on his responsibility for the Ministry vehicle, its' contents and crew. The Clements Decision did. attract the attention of both the Union and the Ministry. On August 6, 1985, Local 510 President, Robert Field, met with Zen Byblow, Head, Central Region Surveys and Plans. The purpose of the meeting was to review the entitlements outlined in the Clements Decision as they applied to local bargaining unit members, on the basis of similarity of operation. There is no dispute that both men agree that the Clements Decision applied to employees required to drive Ministry vehicles outside regular working hours. Similarly, it is common ground that Byblow told Field that senior Ministry personnel would formulate a policy on the basis of the Clements Decision. In addition, it was -5 - agreed that records be kept of the time Survey Technicians spend operating Ministry vehicles outside of normal working hours pending a Ministry policy decision. The issue for determination is the scope of the agreement reached on August 6, 1985 between Messrs. Field and Byblow. Mr. Field testified that there was "a verbal agreement" on that occasion to withhold all claims relating to overtime entitlement pending release of the Ministry policy. On the other hand, Mr. Byblow testified that there was no such agreement except for those employees required to operate Ministry vehicles outside of regular working hours. In fact, Mr. Byblow testified that on August 6 there was no discussion as to the use of private vehicles, for the simple reason that the Clements Decision contained no such reference. In his testimony, Robert Field could not recall if there was any discussion on the use of personal vehicles. Both parties did agree that passenger entitlement to overtime had been mentioned in the discussions. Following that meeting, the fol lowing correspondence was exchanged: "8. Byblow, 40, Surveys & Plans August 19, 1985 Dufferin St., Downsview This is to confirm our conversation of August 6, 1985, during which it was agreed that Survey Technicians would, via sheets supplied to Party Chiefs, keep an on-going record of hours spent operating M.T.C. vehicles outside normal working hours. This agreement is pursuant to the Grievance Settlement Board decision regarding grievance 370/84 (Alan Clements) and is rendered 'without prejudice' on the part of OPSEU Local 510 members, with respect to their entitlements under same. It was also understood that the Ministry is currently forming a policy regarding said decision and will inform field staff of that policy as soon as possible. Please reply confirming the above agreement before August 22, 1985. 'Robert A. Field' R. Field President, OPSEU Local 510" TO: Mr. Robert A. Field Date: 85 08 23 President O.P.S.E.U. Local 510 In response to your memo of August 19, 1985 this is to confirm our August 6, 1985 meeting in which we agreed to maintain a record of the time that survey technicians spend operating M.T.C. vehicles outside of normal working hours pending a ministry policy decision pursuant to Grievance Settlement Board Award #370/84. In the meantime, compensation for such travel will be based on current travel time policy. Yours truly '2. J. Byblow' z. -J. Byblow Head, Surveys and Plans Central Region 3501 dufferin Street ZJG:ms C.C. P. D. Billings J. Henderson M. Carbert M. Furanna" -7- Subsequently on August 22, 1985, Survey Technician James Orr put 'the Ministry on notice that he intended to claim overtime for time spent outside working hours as a passenger in a Ministry owned vehicle. The Ministry responded on August 27, 1985 with the following letter: "This is to acknowledge receipt of your memo to ~Mr. B. Maloney dated 85 08 22 in which you state your intention to claim overtime for time spent riding in a Ministry owned vehicle outside normal working hours as per G.S.B. Award #370/84 (Clements). As you are aware, the Ministry is in the process of determining a policy in accordance with the award and until then we appreciate your willingness to withhold any claims without prejudice to your position." On July 17, 1986, the Ministry i.ssued Policy Directive B-119 effective August 1, 1986 as follows: TO: Ass.istant Deputy Ministers, Executive Directors, Regional Directors, Directors, District Engineers, Regional Managers, Office Managers SUBJECT: Time Credits While Travelling ALTERNATIVE INDEX LISTINGS: - Travel Time Credits - Overtime for Travelling REFERENCE: - Collective Agreement Articles 13 & 23 - Travelling and Living Expense Accounts Manual - Grievance Settlement Board Decision #370/84 - Ministry Directive Administration Finance B-66 "Payment for Overtime, Compensating Leave, Travel Time and Holidays". PURPOSE: To clarify Ministry policy regarding the rate of compensation for time spent travelling on Ministry business outside of working hours. -8 - POLICY: NOTES: Employees who are authorised to travel outside of working hours on Ministry business will be compensated with travel time credits, at their basic hourly rate. Employees who are authorised to perform work on behalf of the Ministry while travelling outside their regular working period will be compensated at the overtime rate. 1. This policy does not apply to management employees in Schedule 6. 2. Bargainings unit employees in Schedule 6 classifications are eligible to be compensated with travel time credits in accordance with,this policy. However, they are not eligible to be compensated for 'overtime on a normal working day and, if they are required to work on a day off, they are entitled to equivalent time off. DEFINITION: "Travel on Ministry business" includes travel between an employee's residence or headquarters and his destination, when the employee travels to perform work at a location other than his headquarters. Travel on Ministry business also"includes travel for such purposes as attending training courses, conferences and seminars. Travel on Ministry'business does not include: (a) travel between an employee's residence and his headquarters, or (b) travel during any period when an employee is on paid or unpaid leave-of-absence. APPLICATION: Travel time will .be calculated based on the distance from the employee's headquarters to his destination. However, if the employee's residence is closer to the destination than is his headquarters, and if he travels directly between his residence and destination without reporting to headquarters, the employee shall be allowed compensation only for the distance between his residence and destination. In some situations an employee travelling on Ministry business outside his regular working period will be compensated at an overtime rate, according to the following guidelines. -9 - 1. 2. 3. If an employee, while travelling outside his regular working period, is authorised to and does carry out work on behalf of the Ministry, the employee is entitled to be compensated at the overtime rate (except as provided in Note 2 on page 1). If the travel-related activity of the employee is an inherent part of the employee's job duties, the travel amounts to an authorised period of work in addition to his regular working period, and the employee is entitled to compensation at the overtime rate (except as provided in Note 2 on page 1). However, if the travel-related activity of the employee is not an inherent part of the employee's job duties and if the employee is essentially free of-b duty responsibility, he shall be compensated at his basic hourly rate. In each case when these guidelines are being applied, the particular circumstances must be considered. However, generally: (a) If an employee is assigned to operate a vehicle outside his regular working period . 1) for the purpose of getting the vehicle to a site where it is required,. or ii) for the purpose of transporting field emdovees. or (iii) for the purpose of transporting such field equipment as - picks and augers - transit - highway warning signs he is considered to be carrying out work on behalf of the Ministry, and the overtime rate applies. (b) If an employee, with Ministry authorization, drives a vehicle outside of working hours for the purpose of travelling to or from his work location, he is essentially free of job duty responsibility (except as otherwise provided in this Directive), and the basic hourly rate applies. (d) (@I (f) Then parties discussed this Directive at an .Employer-Employee If. an employee, with Ministry authorisation, travels outside of working hours in a vehicle driven by another employee, he is essentially free of. job duty responsibility (except as otherwise provided in this Directive), and the basic hourly rate applies. If an employee usually travels to various work locations during his regular working period (shift), travel is an inherent part of his duties, and the overtime rate applies to such travel outside the regular working period. If an employee usually works at particular locations for full shifts, travelis not an inherent part of his job duties, and the basic hourly rate applies. If an employee, with Ministry ‘authorisation, travels outside of working hours for the purpose of attending a training course, conference or seminar, then that travel is not an inherent part of his job duties and he is essentially free of job duty responsibility. Therefore, the basic hourly rate applies. Relations Committee meeting on August 18, 1986. Management made it clear that the Directive had no retroactive effect. However, Management acknowledged that because of the local agreement entered into on August 6, 1985, employees required to drive Ministry vehicles would be paid retroactively to that date (on the basis of documented claims). According to Mr. Byblow, the Union inquired whether or not Directive B-119 would apply to private vehicles. Management replied - 11 - that it would apply but would have no retroactive effect prior to August 1, 1986. Subsequently, on October 24, 1986, Local Union President I Robert Field submitted two claims for retroactive overtime entitlement on behalf of the grievors, Mark Evans and Dan Sabatini. Mr. Field's letter read, in part, as follows: "These claims are in response to GSB Award #370/84 (Clements) and Ministry Directive B-119. Members of Local 510 had agreed to withold their claims, without prejudice, until Ministry policy was formulated. This policy was explained in Directive B-119, which was issued almost one year from the initial agreement (Aug. 06/85) to hold claims in abeyance." 1 On October 31, 1986, the Ministry reply rejected the Evans I I and Sabatini claims on the basis of the following rationale: "This is to acknowledge receipt of your submission on behalf of Mark Evans and Danny Sabatini claiming overtime payment retroactive to August 6, 1985 for travelling in private vehicles outside. normal working hours with respect to G.S.B. Award #370-84 and Ministry Directive B-119. Your submission has been investigated and concluded as follows. The overtime provisions for operating M.T.C. vehicles outside normal working hours have been applied in accordance with G.S.B. Award #370-84, including retroactivity to August 6, 1985 in accordance with the local agreement within Central Region Surveys and Plans. The overtime provisions for travelling outside normal working hours in private vehicles was not addressed in G.S.B. Award #370-84, but rather instituted by Ministry Directive B-119 with an effective date of August 1, 1986. In response to - 12 - an inquiry on this matter at the August 18, 1986 E.E.R.C. Meeting, Management confirmed that the Local agreement referred specifically to the operators of M.T.C. Vehicles (per Clement grievance) and that retroactivity would not apply to operators of private vehicles. Therefore the Evans and Sabatini claims and any other claims that you noted may be forthcoming, which pre-date the effective date of the directive, are not appropriate and will not be processed for payment..." The present grievances arise from the Employer's denial of retroactive benefits for employees using private motor vehicles outside normal working hours. The thrust of the Union's argument was that the agreement of August 6, 1985 included the suspension of all claims pending issuance of Ministry Policy. In particular, Mr. Ryder contended that the Employer's disposition of~the Orr compla to withhold claims. I nt established the agreqment ~ With respect, the Board cannot agree. On the evidence adduced, we must,conclude that these grievances are indeed untimely. The Board is not persuaded that the Local agreement entered into on August 6, 1985 contained any reference to withholding claims, except for claims by employees required to operate Ministry vehicles outside regular working hours. In fact, the evidence established that no discussion whatsoever regarding the use of private vehi cles outside - 13 - normal working hours until the Union raised the issue on August 18, 1986. Admittedly, Mr. Byblow did waive the filing of a grievance on August 27, 1985 for James Orr, for time spent riding in a Ministry vehicle. However, we are satisfied that matter is a-separate consideration entirely. Indeed, the Board was advised that Mr. Orr filed no grievance following the issuance of Directive B-119. Mr. Field's evidence was vague in his attempt to recall the details of the August 6, 1985 meeting. Mr.'Byblow was clear and concise in his testimony. In our opinion, Mr. Byblow's recollection 'of the scope of the agreement is the more probable account of what transpired. We are satisfied that the exchange of letters between Messrs. Field and Byblow on August 19 and August 23 constituted the entire local agreement. Mr. Field may well have intended to withhold the filing of other claims for overtime entitlement. Simply stated, he did not succeed in getting that message across to Mr. Byblow. Accordingly, we find that there was no such agreement to withhold other claims pending issuance of the Ministry policy. The time limits contained in Article 27 of the Collective Agreement entitled "Grievance Procedure" are mandatory and not directory. See, for example, OPSEU (A. Nieuwold, et al.) and Ministry of Transportation and Commmunications, 0499/85, 1466/85, 0102/86, 1465/85, 1466/85 and 0103/85 (Brunner). r- - 14 - The following Articles effectively dispose of these grievances: 27.2.2 If any complaint or difference is not satisfactorily settled by the supervisor within seven (7) days of the discussion, it may be processed within an additional ten (10) days in the following manner: STAGE ONE..... STAGE Two..... 27.13 Where a grievance is not processed within the time allowed or has not been processed by the employee or the Union within the time prescribed it shall be deemed to have been withdrawn. 27.16 The Grievance Settlement Board shall have no jurisdiction to alter, change, amend or enlarge any provision of the Collective Agreement. In the result, these grievances cannot succeed. The Board upholds the Employer's preliminary objection and makes the finding that these grievances are inarbitrable. DATED at TORONTO Ontario, this 15thDAY of MARCH A.D., 1988. R.' L. VERITY, Q.C. - VICE-CHAIRMAN G. NAB1 - MEMBER D. MONTROSE 1 MEMBER