HomeMy WebLinkAboutUnion 96-04-20 IN THE MATTER OF AN ARBITRATION
BETVVEEN:
ONTARIO PUBLIC SERVICE EMPLOYEES UNION
(FOR SUPPORT STAFF EMPLOYEES)
(the "Union")
- AND -
SHERIDAN COLLEGE
(the "College")
AND IN THE MATTER OF UNION GRIEVANCE #95A287 (SUPPORT)
BOARD OF ARBITRATION Robert D. Howe, Chair
Michael Sullivan, Union Nominee
Jacqueline G. Campbell, College
Nominee
APPEARANCES
For the Union Mary Anne Kuntz, Grievance Officer
Jay Jackson
For the College Larry G. Culver, Counsel
Damien V. Borelli
Rosalie Spargo
Susan Bawden
Cliff Coburn
Dennis Montini
A hearing in the above matter was held in Oakville, Ontario
on September 27, 1995, and February 23, 1996.
AWARD
The Union grievance this Board of Arbitration has been called upon to
determine in these proceedings alleges that the College is in violation of Article 8.3 of
the Collective Agreement, the material portion of which provides as follows:
8.3 Kilometrage Allowance
An employee authorized to use his/her car on approved College business including
travelling to assigned duties away from his/her normal work location shall be paid
kilometrage allowance in accordance with the following:
8.3.1 General Conditions
- for the first four thousand (4,000)
kilometres driven at the rate of thirty and
one-half (30.5) cents per km for the part
thereof in Northern Ontario and thirty (30)
cents per km for the part in Southern
Ontario;
The College has eight campuses (one of which was in the process of
being closed at the time of these proceedings). Most of the employees in the support
staff bargaining unit are permanently assigned to work at one of those campuses. It is
common ground between the parties that those employees are not entitled to be paid
kilometrage allowance for driving from home to their permanently assigned campus and
back. However, at least one support staff employee has been permanently assigned to
work at two campuses, spending certain days of the week at one campus and other
days of the week at the other campus. While the Union does not challenge the validity
of such an assignment, it does contend that an employee can only have one "normal
work location" for purposes of Article 8.3. Thus, it is the Union's contention that such an
employee is entitled to receive kilometrage allowance for driving from home to the
second campus and back. The College, on the other hand, submits that such
employee's "normal work location" is the first campus on the days of the week that he or
she is permanently assigned to work at that campus, and that his or her "normal work
location" is the other campus on the days of the week that he or she is permanently
assigned to work at it.
The other issue in dispute between the parties is exemplified by
employees who are permitted by the College to drive directly from home to a location
other than their permanent work location, such as an employee who drives from home
to an all-day meeting with a client at the client's premises and then back home again
without going to his or her permanent work location. It is the Union's position that such
an employee is entitled to receive kilometrage allowance for the total distance actually
driven between his or her home and the client location. The College, on the other hand,
contends that the distance from the employee's home to his or her normal work location
and back should be deducted from the total distance actually driven by the employee in
determining the kilometrage allowance to which the employee is entitled under Article
8.3. (For ease of reference, the distance from the employee's home to his or her normal
work location and back will be referred to in this award as the "deemed kilometrage", in
that the College's approach effectively deems to employee to have driven that distance
regardless of whether that actually occurred or not.)
It is also the College's position that the grievance should be dismissed on
the basis of estoppel. However, it is clear from the totality of the evidence that no
estoppel arises in the circumstances of this case. The job related travel and expense
claims practices and procedures which include the practices challenged by the Union in
the instant proceedings were developed by Cliff Coburn, the Director of the College's
Training and Development Department. The Union official with whom Mr. Coburn had
the most communication regarding those practices and procedures was Union steward
Bill Mathison. It is clear from the totality of the evidence that the College, through Mr.
Coburn, was aware at all material times that the Union, through Mr. Mathison, disagreed
with various aspects of those practices and procedures, including the deduction
described in the preceding paragraph of this award.
In support of the Union's position that Article 8.3 does not contemplate
more than one "normal work location", Ms. Kuntz referred the Board to a number of
other provisions of the Collective Agreement, including Articles 1.1, 3.1, 4, 6.1.4,
8.1.4.1, 12.8, 13.4.1, 15.4.4.2, 17.1, 17.3.5, and 17.4. It is evident from a number of
those provisions that the Collective Agreement contemplates that for a variety of
purposes, each employee will have a single campus location to which he or she is
normally assigned. For example, Article 15.4.4.2, which pertains to layoffs and
reassignments, refers in that context to "the location at which the employee is normally
assigned". Similarly, Article 17.3.5 provides for emergency work assignments which
necessitate employees performing work "at another campus, which is not the
employee's regularly assigned workplace". Moreover, Article 4 requires the College to
prepare and send to the Union once every four months a copy of the seniority list
showing, among other things, the employee's "home campus" (and the seniority list
introduced into evidence as an exhibit in these proceedings demonstrates that the
College has complied with that requirement). Article 4 also enables the Union once
every four months to obtain, upon request, a written list of various part-time employees,
showing, among other things, the "regular work location" of each such employee.
Although there is some variation in the terminology contained in those
provisions, it is evident from each of them that the Collective Agreement contemplates
that, for at least certain purposes, each employee will have a single campus location to
which he or she is normally assigned. Although it is not impossible to construe Article
8.3 in the manner advocated by Mr. Culver in his able submissions on behalf of the
College, it appears to us that, when considered in the context of Collective Agreement
as a whole, the phrase "normal work location" was more likely intended to refer to a
single campus location, analogous to what is referred to as the employee's "home
campus" in the aforementioned seniority provision.
We are further of the view that Article 8.3 does not permit the College to
require employees to deduct the aforementioned deemed kilometrage in calculating the
kilometrage for which they are entitled to receive kilometrage allowance. In this regard,
we are not persuaded that, as submitted by Mr. Culver on behalf of the College, Article
8.3 is silent on the matter of how to calculate the kilometrage for which employees are
to be paid kilometrage allowance, and that the Collective Agreement's management
functions clause (Article 3.1) empowers the College to require employees to deduct that
deemed kilometrage.
Article 8.3 stipulates that kilometrage allowance (in the amounts specified
in Article 8.3.1) shall be paid to an employee "authorized to use her/her car on approved
College business". Thus, an employee is entitled to be paid the kilometrage allowance
set forth in that article if he or she satisfies the following requirements:
(1) the employee uses his/her car;
is on approved College business.
In the example set forth above to describe the second issue in dispute
between the parties, all three of those conditions are clearly satisfied. The employee is
permitted by the College to use his/her car to drive directly from home to a location
other than his/her permanent work location in order to carry out approved College
business, and to return home directly from that other location without going to his or her
permanent work location. Having fulfilled each of the conditions specified in Article 8.3,
the employee is entitled to be paid the kilometrage for which that Article provides (i.e.,
the kilometrage actually driven), and the employer cannot legitimately derogate from the
employee's rights under that provision by requiring the employee to deduct the
aforementioned deemed kilometrage.
For the foregoing reasons, the grievance is allowed and the relief
requested by the Union is hereby granted,
i.e., a declaration that the aforementioned two aspects of the Colleges practices and
procedures for job related travel and expense claims are violative of Article 8.3 of the
Collective Agreement and must be brought into conformity with that provision in respect
of future claims by employees for kilometrage allowance.
DATED at Burlington, Ontario this 20th day of April, 1996.
Robert D. Howe
Chair
I concur.
"Michael Sullivan"
Union Nominee
I dissent in part.
"Jacqueline Campbell"
Employer Nominee