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HomeMy WebLinkAbout1987-1878.Berlinghoff and Eaton.88-07-20‘If ONTARIO EMPLOY& LEtA cc?umAwE CROW” EMPLOYEES DEL’ONT*RIO GRIEVANCE CPMMISSION DE SETTLEMENT REGLEMENT BOARD DES GRIEFS IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD Between: Before: OPSEU (Berlinghoff and Eaton) and The Crown in Right of Ontario (Ministry of Transportation) A. Barrett Vice Chairman P. Klym Member W. Lobraico Member For the Grievers: P. Chapman Counsel .* Gowling & Henderson Barristers and Solicitors For the Employer: K. Cribbie Staff Relations Advisor Human Resources Branch Ministry of Transportation Hearing; March 1~0, 1988 Employer / e ;_' Both grievors are headquartered in the small town of Porquis Junction in Northern Ontario. Both grievors had filed an earlier grievance concerning meal allowances and were advised by Management and~their Union Representative that the step two grievance meeting would be held in Timmins on August 3&t, 1987. Timmins is about 40 to 45 miles from Porquis Junction. Because of~differences arising out of the earlier grievance, Mr. Eaton attempted to find out in advance whether he would be paid travel and meal expenses to attend the grievance meeting. His i Union Representative said that she had spoken with someone in Personnel who had advjsed that he would be paid his expenses. The grievor 'then checked with Mr. Webber, the head of District Administration Services, and was told by him that the Collective. Agreement did not require payment of these travelling and meal expenses. Before leaving for the meeting the grievor asked his supervisor if"he could take a Ministry vehicle but he was told none was available and he would have to take his own car. Upon arrival the grievors and their Union Representative, Mr. Storey, asked the management team in attendance if they were going to be paid their expenses for the attendance. The answer was no. Mr. Storey then took the position that he and the grl:evors would not participate in the grievance meeting. He then gave the management team some time to see if they wished to re-assess their position. Several hours later the management'answer was still "no", so the grievors and their Union Representative left and refused to participate in the meeting. Management then c proceeded to hold,the meeting on its own and denied the grievance at step two. And so this new grievance arises. At issue is Article 27 of the Collective Agreement entitled Grievance Procedure. ,The relevant clauses are reproduced below: 27.3.2 27.3.3 27.4 27.5 27.6.1 "STAGE TWO If the grievance 'is not resolved under Stage One, the employee may submit the grievance to the Deputy Minister or hi.s designeee within seven (7) days of the date that he received the decision under Stage One. In the event that no~decision in writing is received in accordance with the specified time limits in Stage One, the grievor may submit the grievance to the Deputy Minister or his designee within seven (7) days of the date that the supervisor was required to give his decision in writing in accordance with Stage One. The Deputy Minister or his designee shall hold a meetinq with the employee within fifteen (15) days of the receipt of the grievance and shall give the grievor his decision in writing within seven (7) days of the meeting. If the grievor is not satisfied with the decision.of the Deputy Minister or his designee or if he does not receive the decision within the specified time the grievor may apply to.the Grievance Settlement Board.for a hearing of the grievance within fifteen (15) days of the date he received the decision or within fifteen (15) days of the specified time limit for.receiving the decision. The employee, at his option, may be accompanied and represented by an employee representative at each stage of the grievance procedure. An employee who is a grievor or..complainant and who makes application fora hearing before ,the Grievance. Settlement Board or the PublicService Labour Relations Tribunal shall be allowed leave-of-absence with no loss of pay and with no loss of credits, if required to be in attendance by the Board or Tribunal. : . c 27.6.2 An employee who has a grievance and is required to attend meetings at Stage One and Two of the Grievance Procedure shall be given time off with no loss of pay and with no :loss of credits to attend such meetings. 27.6.3 This section shall also~apply to the Union Steward who is authorized to represent the grievor." (Underlining ours) Other relevant provisions of the Collective Agreement are Article 22 relating to Mileage Rates and Article 17 relating to Meal Allowances. The relevant portions are set out below: "ARTICLE 22 - MILEAGE RATES EXPRESSED IN KILOMETRES 22.1 If an employee is required to use his own automobile on the Employer's business the following rates shall be paid effective April 1, 1985: Kilometres Driven Southern Ontario Northern Ontario - 4,000 lh,JOl : '001 - 10,700 24,000 km 27.5 c/km 28.0 c/km - km km 22.0 18.0 c/km c/km 22.5 18.5 c/km c/km over 24,000 km 15.5 c/km 16.0 c/km "ARTICLE 17 -' MEAL ALLOWANCE 17.2.1 Cost of meals may be allowed only: 17.2.2 If during a normal meal period the employee is travelling on government business other. than; (a) (b) (cl on patrol duties, except as provided under sub-section 17.2.3, or within twenty-four (24) kilometres of his assigned headquarters, or- within the metropolitanarea in which he is normally working: i *.’ c 17.2.3 If an employee on patrol duties is reimbursed for overnight accommodation required for the trip; 17.2.4 If, in an unusual'non-recurring situation, the department head authorises such payment;" The Union argues that pursuant to Article 27.3.3 the designee of the Deputy Minister "shall hold a meeting with the employee"; the employer selects the place of the meeting to suit its own convenience; the meeting is an aspect of the "employer's business"; and therefore the grievors were required to use their own automobile on the employer's business and should be paid mileage for having done so. Similarly the employeesshould be reimbursed for lunch on the day in question because again they were travelling on government business and were further than 24 kilometres from theirassigned headquarters. Union Counsel says that ArtiCle 27.6.2 specifying that a grievor shall be entitled to attend a Stage TWO grievance meeting "with no loss of pay and with no loss of credits" should be read to mean that all expenses for such attendances are to be borne by the employer. The Union says that it is the business of the employer to process grievances and although a grievor has no positive duty to attend grievance meetings pursuant to the Collective:Agreement, his failure to attend would result in his grievance being deemed to have been' withdrawn pursuant to Article 27.12. - i . . 'The employer argues that the wording of Article 27.6.2 is clear and unambiguous. The grievor is to suffer no loss of pay or credits such as sick leave, or vacation credits;and~ that is the end of it. If the parties had intended to include travel expenses as part of a grievor's entitlement they could have said so. The absence of any mention of these expenses in Article 27 should be conclusive against the Union's argument. The purpose of the clause is to facilitate the grievor's attendance at a meeting without what could be in some cases a prohibitive loss of pay, but not to fully subsidize the grievor for attendance expenses. In any event, argues the employer, even if.we find some'ambiguity in the clause and decide that mileage expenses should be covered; in this particular case they should not be paid because'the grievors failed to participate in the meeting and thus defeated the very purpose for which it was set up. In accordance with the "work now - grieve later" rule, the grievers should have participated in the meeting and then filed the instant~grievance. In support of its interpretation the employer points out that grievors are not paid to attend grievance meeting,s on their days off nor are they paid overtime if meetings run on beyond the regular work day. In essence the argument of the employer appe,ars to be that Article 27.6.2 operates negatively to prevent certain losses to an employee while attending to his own grievance, and not positively like Articles 17 and 22 requiring additional payments '. for employees required to travel on the employer's business. i ,' -6- . .' The Union sought to produce evidence of past practice as an "aid to interpretation" of Article 27.6.2. This evidence consisted of the grievor testifying that he had attended two earlier step two grievance meetings; one in 1985 and one many years before that; and oneach occasion he was given a Ministry vehicle to attend the meeting. Two isolated incidents do not a past practice make. The Union also~relied on a G.S.B. award No.0332/85 (Union Grievance) wherein the Board looked at past bargaining history to determine whether or not the Collective Agreement intended that people under summons to attend hearings of the Grievance Settlement Board were entitled to be paid for the time absent from work by the employer as if he or she were on duty. After a lengthy review of the bargaining history concerning this issue, the Board found that language in the Collective Agreement requiring the employer to pay employees for time off to respond to a "subpoena as a witne'ss' was sufficient to cover the situation of an employee responding to a "summons to a witness" before any court board or tribunal that has the power to summons. But we are dealing with a separate issue here .and the evidence of past bargaining history in that award is of no assistance to us. The very issue of time off without loss of pay for grievors attending step two meetings is addressed .in Article 27.6.2. The real issue we must determine ,is whether . attendance at a step two grievance meeting is "the employers business" so as to bring it within the ambit of Article 22 .and Article 17. We have no doubt that it is part of the employer's business to process grievances. It is also part of an employees business to file grievances and to attend to the grievance procedure on his. own behalf. Effective'grievance handling is in the best interests of both the employer and employee. An appropriate grievance procedure is the main underpinning ' of any collective agreement because it is to the mutual benefit of the parties to facilitate ~the proper handling of grievances. Traditionally both have shared, at least to some extent, the cost of handling grievances so that neither is inclined to abuse the process. Generally speaking grievance meetings are held during regular business hours because that is when all of the participants are readily available. The management team is paid to attend these meetings because that is~ part of their regular duties. Similarly, grievors are not docked pay to attend these meetings in regular working hours because the loss of pay could well be prohibitive to some employees with legitimate grievances. It is the presumed legitimacy of the grievance procedure which brings into beidg clauses such as Article 27.6.2 to prevent salary loss to the participants in a grievance meeting. However we do not find that Article 21.6.2 is an all encompassing clause requiring that the employee is to bear no expense whatsoever to participate in the grievance procedure. We find that Article 27 was intended by the parties to cover the entire procedure for the handling of grievances and the financing of same and we should not look outside that clause to Articles 17 land 22 to find additional recompense' for employees.engaged in the grievance procedure. Article 27.6.2 is quite clear in specifying that employees shall suffer no loss of pay or credits to-attend grievance meetings but,framed negatively as the clause is, we can find no intention or wording that would impose a positive onus'on the employer.to pay expenses as well. While grievance handling is part of the employer; business, it is by no means the main business of the employer. Grievance handling is the joint business of the employer and the employee and in our view the cost-sharing involved in that has been fully and completely set out in Article 27. Accordingly the grievances are dismissed. DATED at Toronto this 20th day of July, 1988. ABBEBARRETT Vi~e-Chairman I dissent (Dissent attached) P. KLYMi Member .- .* ice - Member DISSENT I find that I must respectfully dissent with the panel Chairperson's decision in this case. Contrary to the position taken by the employer's counsel at the hearing, there can be no doubt .that the mandatory Stage Two grievance meetings under, Article 27.3.3 are part of f'government businessn or ,"the employer's business." Administering the Collective Agreement to which the government is a party is at least as essential business as any other contract to which the government is a party. Indeed the Chairperson has correctly stated that it is part of the employer's business to handle grievances. Having made the finding that these Stage Two meetings are "government business" and "the employer's .business" itfollows that travelling expenses for .meals under Article 17.2.2 and automobile expenses under Article. 22.1 should' be paid unless these are specifically excluded in some other part of th,e Collective Agreement. In my opinion, Article 27.6.2 does not exclude the payment of these travelling expenses. Article '27 is not an all- incIusive article covering all matters that arise during the .course of grievance handling.~ Were it to contain words such as 8qNotwithstanding any other articles in this Collective Agreement, etc." or any other over-ride provisions, then perhaps one could conclude that it covers the entire.procedure for handling grievances. But Article 27 contains no such over-ride provisions. Therefore, it should be interpreted as covering only the specific issues spelled.out in its contents. Article 27.6.2 concerns the i&sue of payment for time off ,. for grievances and the associated credits that go with this paid time. It does nat, by its~ silence, exclude or deny payment of travelling expenses. In fact the wording of Article 27.6.1 and 27.6.2 indicates that there is more to Article 27.6.2' than simply .preventing salary loss and credits as the Chairpersonls decision rules. Article 27.6.2,.which covers attendance at the Grievance Settlement Board and the public Service. Labour Relations Tribunal, provides for "leave of absence 'with no loss of pay and no' loss of credits." Article 27.6.1, which covers attendance ate Stage One and Stage Two grievance meetings, provides for "time off with .no loss of pay and with no loss of credits.* Both articles provide for .preventing salary loss and loss of credits. If they are meant to provide exactly the same coverage, then why have the.parties not used the same wording,' particularly in articles so closely related? The reason would appear to be that “leave of absence with pay" and *time off. * with pay" are not the same. TO assist in determining the significance of this distinction in the wording, some insights can be gained from . re'ferring to GSB award No. 0332/85 (Union Grievance). On pages 3 and 4 of this award, Chairman Swan lays out then background of ,the initial negotiations regarding the payment for atizendance at GSB hearings and mandatory grievance meetings. He quotes B letter from the Chairman of the Civil Service Commission to the Deputy Ministers, dated August 16, 1973. The following parts are relevant here: "The grievor shall be granted time-off duty, without loss of pay or attendance credits, to attend a hearing of his grievance by the public Service.Grievance Board or the Classification Rating, Committee.” . . . "Any mandatory hearing relative to a grievance, that requires the grievor, his representative or witness to be absent from the normal place of employment shall not entail any loss of.pay or accumulation of credits. Such absence shall be treated as if the grievor, his represen- tative or witness were uy.", (emphasis added) Of further assistance in interpreting this wording distinctionis the testimony of the employer's (witness Mr. Brian Webber, who is. the head of the District Administration Services in Cochrane. He stated that employees who have to travel to .Cochrane for job interviews are entitled to payment for .these travelling expenses. These job interviews are covered under Micle 4.'4. I note that the wording in 4.4 is the same as in 27.6.2 - "shall be granted time off with no loss of Dav and with no loss of . credits to attend the interview." It appears that the logical explanation for the choice of the words "time off with pay W in, Article 27.6.2.is, that they are to be treated as if the grievor were "on ~duty" as differentiated from a "leave of absence with pay" which is "off duty." If a grievor is considered "on duty' while attending a mandatory Stage Two grievance meeting during his regular working hours, it is inconsistent with Article, 17 and 22 to deny entitlement to travel expenses when 'no specific ,'. prohibition to payment exists elsewhere in the Collective Agreement. I would further submit that if the same wording in Article 4.4 does not override the provisions of Articles 17 and 22,' neither can it in Article 27.6.2. Le~aving aside the legal arguments regarding the interpretation of the Collective Agreement. language, there is good reason and logic in the Union's position on this matter. The early stages of the grievance procedure are extremely critical to the resolution of labour relations problems. It is essential that all involved persons, particularly the grievor, be given an opportunity to attend and participate in attempts of resolving and settlings any dispute. There should be no roadblocks and obstacles to facilitating the attendance of a grievor at, a meeting tying to resolve his or her grievance. If the Stage Two meeting took place always at the grievor's headquarters, problems such as in this case would not - 2 - l . 7 arise. However, it is understandable that management personnel who are responsible for attempting to resolve grievances often find it to their convenience to set up a meeting at a central '. location which is not the grievor's headquarters. This saves them travel time and expenses going to remote locations and is usually more efficient for them by allowing them to hear several grievances from different locations all in the same day. But why should a meeting held at a central location, which is for the convenience of the employer's representatives, place an undue burden on the grievor? If the employer refuses to provide transportation or travel expenses, which it would have provided to its own representatives to travel to the grievor's headquarters, then. unnecessary obstacles are created in facilitating the grievor's attendance. Such. obstacles are not in the spirit of adjusting complaints and grievances as quickly or possible and, in some situations, could make it impossible for the grievor to exercise hiss or her contractual right to. attend a Stage Two grievance meeting. I do not believe the intent of the Agreement is to allow a ,frustration to the grievor's right to attend these mandatory meetings. I. I would find in this case that the grievors are entitled to payment of travel expenses to attend the Stage Two grievance meeting in Timmins.