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HomeMy WebLinkAboutMcCoy 96-05-07 IN THE MATTER OF AN ARBITRATION BETWEEN ONTARIO COUNCIL OF REGENTS FOR COLLEGES OF APPLIED ARTS AND TECHNOLOGY (FANSHAWE COLLEGE) Employer - AND - ONTARIO PUBLIC SERVICE EMPLOYEES UNION Union AND IN THE MATTER OF A GROUP GRIEVANCE INVOLVING MS. KlM McCOY AND MS. ALICE MILLIGAN Grievors BEFORE: Prof. C. Gordon Simmons, Chairperson Mr. A1 Merritt, Employer Nominee Mr. John McManus, Union Nominee APPEARANCES ON BEHALF OF THE EMPLOYER: Mr. Barry Brown, Counsel And Others APPEARANCES ON BEHALF OF THE UNION: Ms. Mary Anne Kuntz, RN, MSW, Grievance Officer A hearing into this matter was held in London, Ontario on March 19, 1996. The parties submitted an Agreed Statement of Facts which reads (Exhibit 2) as follows: AGREED STATEMENT OF FACTS between Fanshawe College -and- THE ONTARIO PUBLIC SERVICE UNION Re: Group Grievance dated November 18,1994 re Mileage Allowance 1) Both A. Milligan and K. McCoy have been ECE workers at Fanshawe's Early Childhood Education Division since April 1990. 2) Both worked at the Robarts location in London until its closure July 31, 1994. 3) The nine employees affected by the closure, and the Union, signed an agreement (attached) dated June 23, 1994, outlining the assignments agreed upon for the interim period between the closure of Robarts and the opening of the new 7-Up Daycare Centre in London. 4) The Union and the College were, at the relevant time, parties to a No- Layoff Agreement. 5) Both grievors supplied full time in London until the week of August 29, 1994 when they were assigned to work for one week at the St. Thomas Daycare location. 6) They were then assigned to work in London for the week of September 6, 1994. 7) From September 12, 1994 until the opening of the new 7-Up Daycare in early January 1995, both grievors were assigned to work on a regular basis at the St. Thomas location which is less than 40 Km. from either the College's main Cmnpus or Robarts' site. 8) For Alice Milligan, this involved 30 Km. daily in addition to miles she would normally drive to her London location from her home in Strathroy. 9) For Kim McCoy, this involved 60 Km. d~ly in addition to miles she would have normally driven to the London location. 10) By way of a memo to Gita Anderson (attached) dated November 2, 1994, Ms. McCoy, Ms. Milligan and Ms. Lee, requested reimbursement for mileage incurred to the end of October 1994. 11) Ms. Anderson's reply was dated November 8, 1994 (attached). 12) By way of memoranda dated October 6, November 2 and November 4, 1994, Ms. Anderson had advised her staff and p~ents of the projected completion date for the new centre. 13) The new centre actually opened Janu~y 2, 1995. 140 The grievors filed a group grievance November 18, 1994 seeking payment of mileage pursuant to Article 8.3.1 retroactive to their assignment to the St. Thomas cmnpus. 15) The College replied December 19, 1994. The Agreement referred to in paragraph 3) reads as follows (Exhibit 6): Memo to: Gita, Carmela, Helen Wendy From: Robarts Staff Date: June 23, 1994 It has been agreed that the following positions have been accepted: Jennifer Gilbert: Main Todds -Mon. June 27, 1994 - until such a time that there are enough children to warrant a seventh staff member at the new 7-Up Campus. Deborah Hogg: Main Todds - July 18, 1994 until such time that there are enough children to warrant a fifth staff member at the new 7- Up Campus. Lisa Quinn: Presch. 1, Main until such a time that there are enough children to warrant an eighth staff member at the new 7-Up Campus. Kim McCoy: Fulbtime supply - July 22, 1994 until August 22, in London, or with existing Robarts tweenies at Main Cmnpus. After August 22, 1994, I mn willing to supply in any Fanshawe Centre, on a day-to-day basis to warrant full-time work, until such a time that there are enough children to warrant one staff member at the new 7-Up Campus. Alice Milligan: Full-time supply - in London until August 22, 1994 or with existing Robarts Toddlers at Main Cmnpus on a temporary basis until such a time that there are enough children to warrant a second staff member at the new 7-Up cmnpus. Until this time, willing to work in any Fanshawe Centre on a day-to- day basis to warrant full-time work. Susan Czyphyha: Full-time supply - July 22, 1994 in London, until September 12, 1994, until such a time that there are enough children to warrant a third staff member at the new 7-Up Campus. After September 12, I am willing to work on a day to day basis in any Fanshawe Centre to warrant full-time work. Wendy Lee: St. Thomas - July 4, 1994 until such a time that there are enough children to warrant a fourth staff member at the new 7- Up Campus. Fiona Harrison: Main Toddlers - June 20, 1994 until such a time that there are enough children at the new 7-Up Campus to warrant a sixth staff member. Caroline Liddle: JPII - June 20, 1994 - until such a time that there are enough children at the new 7-Up Campus to warrant a ninth staff member. In the event that staff are not needed to supply on any given day in any one of the child care centres (London and St. Thomas), the College may assign alternate duties, i.e. packing clerical kitchen re-organizing storage and work rooms sewing/mending... Ms. Lee eventually withdrew her grievance but Ms. McCoy's and Ms. Milligan's grievances came forward for resolution. On November 18, 1994 (Exhibit 3) the grievors claimed that the Employer had violated Article 8.3 basically claiming that they were assigned away from their normal work location and should be given mileage for this change. Article 8.3.1 reads as follows (Exhibit 1): 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; - for distances driven over four thousand (4,000) kilometres and up to ten thousand seven hundred (10,700) kilometres at the rate of twenty-six and one-half (26.5) cents per km for the part thereof in Northern Ontario and twenty-six (26) cents per km for the part thereof in Southern Ontario; - for distances driven over ten thousand seven hundred (10,700) kilometres and up to twenty-four thousand (24,000) kilometres at the rate of twenty-two and one-half (22.5) cents per km for the part thereof in Northern Ontario and at the rate of twenty-two (22) cents per km for the part thereof in Southern Ontario; - for distances driven over twenty-four thousand (24,000) kilometres at the rate of nineteen (19) cents per km for the part thereof in Northern Ontario and at the rate of eighteen (18) cents per km for the part thereof in Southern Ontario. When the grievance was filed the Employer responded as follows (Exhibit 4): I have reviewed the circumstances surrounding your reassignments to the St. Thomas Child Care Centre. As I understand it, the attached agreement was discussed with you and it was signed by all affected staff as well as Local 109 representatives. I believe any concerns regarding mileage costs should have been brought forward at the time of this agreement. In any event, the closing of the Robarts Centre resulted in a change to your normal work location. Your normal work location is currently at the St. Thomas Centre and therefore, kilometrage allowance does not apply. Gaff Rozell Acting Director, Human Resources When this response was not accepted by the Union, the Employer responded again (Exhibit 5) as follows: I have now had an opportunity to speak with Ingrid Hobbs and have obtained information that I was not aware of in the meeting I held with you on January Mst. I understand that Ingrid and the Child Care managers met with Louise Watt and Susan Czyphyha on your behalf to discuss possible reassignments. It was agreed at that meeting that Louise and Susan would meet with the Robarts staff and come up with a plan, taking into account seniority and preferences (ie. if a staff member wished to voluntarily be assigned to St. Thomas, it would not be necessary to assign the staff member with the least seniority at Robarts to this assignment). The result of these discussions took the form of a memo dated June 23, 1994 which was signed by all of the affected staff at Robarts, including yourselves. It was clearly the College's understanding that the reassignments only involved the staff affected by the Robarts closing and not staff members at other Fanshawe Child Care Centres who may have had lesser seniority. In any event, even if these reassignments had been layoffs in accordance with Article 15 of the Collective Agreement, the College would have had the right to reassign those employees in the affected positions to a position within forty (40) kilometres of the location at which the employee is normally assigned. In fact, it is the College's obligation to find alternate work (ie. vacancies, conversion of part-time, displacement of non-bargaining unit employees) prior to implementing the bumping procedure. I do not believe it is the College's obligation to pay a kilometrage allowance for a reassignment within a forty (40) kilometre distance. Therefore, I cannot support the payment of mileage to the St. Thomas Child Care Centre. However, I am prepared to offer assistance in the form of reimbursement for parking as well as assistance to Wendy Lee in reinstating her parking space. H. Rundle Vice-President, Academic The Union has not accepted the Employer's response and claims that the two grievors are entitled to mileage allowances based on Article 8.3.1 in the Collective Agreement. It is agreed between the parties that during the social contract there were to be no layoffs. The Employer therefore had to find alternative employment for the grievers while the "Rebarts facility" was being remedied to accommodate future students. This happened in January, 1995 where the students were accommodated in "7-Up" facilities nearby where the Rebarts facility had existed in the past. This accommodation was expected to occur in November, 1994 but due to a number of delays it was not ready to accommodate these students until January, 1995. The issue before us is whether or not the Employer was obligated under Article 8.3.1 to pay mileage allowance to the two grievers to travel to St. Thomas during the period of time that the Rebarts Centre was shut down. The Employer takes the position that it was not so obligated and the Union takes the position that the Employer is obligated to pay such allowances. In support of the respective positions of the parties, the Board was provided with several decisions which we will now review. In support of the Union's position we were referred to an unreported decision of Mr. O.B. Shime, chair, Seneca College and Ontario Public Service Employees Union dated August 12, 1986. In this case, the griever claimed that he ought to have been paid a kilemetrage (mileage) allowance for travelling to the college's King Campus which he alleged was on an assigned duty away from his accustomed work location at the college's Newnham Campus. He had been employed as a counsellor at Newnham Campus since 1969 and in September, 1985 he was transferred to the King Campus. He was requested to perform counselling duties at King Campus from the end of March, 1985 until June, 1985 for two days per week. He agreed to that request. He was told that the two month assignment was temporary but towards the end of June, 1985 he was told that as of September, 1985 he was to be transferred to the King Campus on a permanent basis. The issue in that case was whether the King Campus was the griever's "accustomed work location". The college argued that the griever had two accustomed work locations during the period from March, 1985 to June, 1985 whereas the union submitted that there could only be one accustomed work location under the terms of Article 25.01 in the then prevailing collective agreement. The Board ruled in that case that the assignment for March until June was a temporary assignment and the griever retained all of the incidents of his original or more permanent base at Newnham Campus and while he had an office at the King Campus it was a mere convenience in the circumstances and did not alter his accustomed work place. The grievance was allowed. The Employer takes two positions. One involves the timeliness of the grievance. The reassignment to St. Thomas occurred in late June, 1994 and the grievance was not filed until November 18, 1994. As soon as the grievance was raised the Employer objected to the jurisdiction of this board of arbitration dealing with the matter on its merits in its response dated December 19, 1994 (Exhibit 4). The Employer stated that any concerns regarding mileage costs should have been brought forward at the time of the agreement that had been entered into in June, 1994. However, the Board does not regard this comment by the Employer as raising an objection to the jurisdiction of the Board in dealing with this matter. It is true that the Employer raises the matter of concerns regarding mileage costs and that they should have been brought forward at the time of this agreement but the Employer does not specifically state that the matter is unarbitrable. Therefore, the Board does not accept the Employer's submission that this matter is unarbitrable due to the late filing of the grievance and we will proceed to the next step in this matter. Turning to the merits. The Employer submits several decisions in support of its position that the grievance ought to be dismissed. The Employer referred the Board to Article 8.3.1 - Kilemetrage Allowance reproduced above. Counsel for the Employer posed the question what was the griever's normal work location for the period between September and December, 19947 It was Counsel's submission that the article provides for entitlement to allowances where the griever uses his/her vehicle away from one's normal location. But Counsel went on to point out that the Rebarts location was closed during this period and it was this location where the grievers were routinely assigned. However, due to the closure of the Rebarts location the grievers were assigned to St. Thomas. There was no other site operating at the time and therefore St. Thomas became their normal work site location. In support of its position, the Employer referred the Board to Georgian College of Applied Arts and Technology and Ontario Public Service Employees Union, an unreported decision of Chair Kevin M. Burkett dated August 1, 1980 wherein the issue of mileage was raised. At pages 6 and 7, Arbitrator Burkett made the following comments: 8. There is nothing in the instant agreement to cause the Board to interpret the words 'accustomed work location' as other than an employee's 'usual' work location (see Webster's New Collegiate Dictionary, (1975) G & C. Merriam Co. and Black's Law Dictionary, Fourth Edition); usual in the sense that the employee is headquartered in the location and works in or out of that location. Furthermore, the College is entitled to transfer employees between work locations for bona fide reasons and may do so on a temporary or permanent basis without restriction under the collective agreement. It follows, therefore, and is not in dispute by the union, that an employee's accustomed or usual work location may be changed from time to time. When an employee is transferred to a new work location and is required to work at that location on a regular ongoing basis, it can hardly be found as a factual matter that the employee's former place of work remains his 'accustomed work place.' In our view the permanent transfer of an employee from one work location to another, results in a change in the employee's 'accustomed work location' as of the date of the transfer. 9. Prior to June 5, 1978, the griever was headquartered and worked in Barrie, so that prior to June 5, 1978 her 'accustomed work location' was Barrie. Effective June 5, 1978, however, the griever was transferred to Midland. She was assigned to teach in Midland and has performed all of her assignments in Midland since. We are satisfied on the evidence that her reassignment was of a permanent nature and made for bona fide reasons with the result that from June 5, 1978 her 'accustomed work location' became Midland. Having determined that her 'accustomed work location' has been Midland since June 5, 1978, can she claim mileage under article 21.01 for daily travel between Barrie and Midland since June 5, 19787 The answer is No. While the collective agreement in that case referred to "accustomed work location" and where the instant collective agreement states "normal work location" we see no difference in substance in the wording of the collective agreement. In that particular situation the grievance was dismissed. Similarly, in Seneca College and Ontario Public Service Employees Union, an unreported decision of Chair J.W. Samuels dated April 15, 1985, there was a temporary transfer for a period of one academic term and then the grievor returned to his previous location. The issue in that situation was what was the griever's accustomed or usual or normal work location. In referring to the above Burkett decision, the Samuels board had the following comments to make at pages 2 and 3: While the Burkett Board speaks of a 'permanent transfer' in the last sentence, it is clear from the passage as a whole that, in the Board's view, any transfer for a substantial period of time would cause the employee's 'accustomed work location' to change. The critical question is whether the employee is 'required to work at that location on a regular ongoing basis'. In Georgian College the grievor had been 'permanently' transferred, and the Board simply referred to the actual case before them in the last sentence quoted. In our view, when a teaching master is assigned exclusively to a cmnpus for an entire term, that campus becomes his 'accustomed work location' for that term. In following the Georgian College and Seneca College decisions, supra, it is this Board's respectful opinion that the Employer had a right to assign the grievers to the St. Thomas Child Care Centre when the Rebarts Centre closed. This became the grievers' normal work location and we agree with the Employer's position that, in these circumstances, the kilemetrage allowance under Article 8.3 was not applicable. The grievance therefore must be and is hereby dismissed. Dated at Kingston, Ontario, this 7th day of May, 1996. C. Gordon Simmons Chairperson "Allen Merritt' I cencur/d'zsent Allen Merritt Employer Nominee "John McManus" I cencur/dissent John McManus Union Nominee