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HomeMy WebLinkAbout1999-0840.Group Grievance.03-01-14 Decision Crown Employees Commission de ~~ Grievance Settlement reglement des griefs Board des employes de la Couronne ~-,... Suite 600 Bureau 600 Ontario 180 Dundas Sl. West 180 rue Dundas Ouest Toronto Ontario M5G 1Z8 Toronto (Ontario) M5G 1Z8 Tel. (416) 326-1388 Tel. (416) 326-1388 Fax (416) 326-1396 Telec. (416) 326-1396 GSB# 0840/99 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN ProfessIOnal EngIneers & ArchItects of the Ontano PublIc ServIce (Group Gnevance) Grievor - and - The Crown In RIght of Ontano (Mimstry of TransportatIOn) Employer BEFORE FelIcIty D Bnggs Vice-Chair FOR THE UNION Larry RobbIns Umon ConsultIng ServIces FOR THE EMPLOYER Kelly Burke Semor Counsel Management Board Secretanat HEARING June 20 2002, and October 10 2002 2 DECISION On November 6, 1998 the partIes arnved at a memorandum of agreement regardmg the Issue of tune credIts wIllIe travelhng beyond the normal hours of work. WhIle the partIes were able to agree that "ehgible employees" were entItled to travel credIts they recogmzed that there mIght be future dIfferences about ehgibIhty It was stated at paragraph 5 Employees retam theIr nght to gneve to detennme ehgibIhty, e g whether travel IS an mherent part of theIr posItIOn If successful, the gnevor shall be ehgible for the settlement m paragraph 3 The gnevor shall contmue to record claims untIl the gnevance IS resolved. As antIcIpated, after the sIgnmg of the memorandum of agreement a number of gnevances were filed regardmg the Issue of ehgibIhty for travel credIts A heanng was held to adjudIcate tlllS matter and rather than have hterally dozens of gnevors attend to proffer eVIdence, the partIes agreed that I would hear four specIfic fact sItuatIOns and Issue a nllmg The partIes understood that It was likely that the dIsparate fact sItuatIOns mIght bnng about dIfferent results It was hoped that I would Issue a decIsIOn that would provIde gUIdance to the partIes and allow them to resolve the remammg outstandmg Issues On Apnl 18, 2001 I Issued the decIsIOn and, as antIcIpated, the partIes were able to resolve all remammg outstandmg gnevances but one At the first heanng one of the four fact sItuatIOns I heard was that of Ms Lynda Boyd, Geotechmcal Engmeer, SoIls I heard both Vlva voce eVIdence from Ms Boyd m addItIon to the agreed facts submItted by the partIes For Ms Boyd, one of the agreed facts was 3 Part of her Job responsibIhtIes reqUIres that she observe and rem am vIgIlant of pavement condItIons dunng any road tnp On the longer sIte VISIt tnps, she would tYPIcally VISIt a number of sItes on one tnp In my decIsIOn I found, at page 27 In my VIew, for the most part, travel IS not an mherent part of the work. The travel merely got the gnevors to theIr work. Accordmg to the eVIdence travel IS not a core duty It IS a means of transportmg the gnevors to and from a worksIte where they perform theIr work. Travel IS an mherent part of the work (and therefore not subJect to travel credIts) If there IS an actual component of work bemg performed at the same tune SpecIfically, regardmg Ms Boyd, I said at page 29 Ms Boyd IS somewhat dIfferent She IS a geotechnIcal engmeer wIth clearly specIfied responsibIhtIes Accordmg to her eVIdence, Ms Boyd IS responsible for pavement mspectIOns for a large sectIOn of the northern regIOn She was also responsible for mOnItonng pavement condItIons dunng her travels m her desIgnated area even when that IS not the pnmary purpose of her Journey such as when she IS travelmg to meetmgs held m Toronto That mOnItonng and responsibIhty IS, m my VIew, performmg work She was actually dIschargmg specIfic and certam dutIes as an employee willie travehng Therefore, when she IS travehng outsIde her nonnal hours by car she would only be entItled to travel credIts when she IS travehng outsIde her own desIgnated area or at nIght when she cannot see the road to dIscharge that responsIbIhty Her claim IS allowed to that extent It was not dIfficult to understand why the partIes were unable to resolve Mr Derek Daneff's gnevance He IS a ProJect SoIls Engmeer m the geotechnIcal sectIOn m Northwestern Ontano He was classIfied at a PBE6 level untIl May 31,1999 when he was upgraded to a PBE7 It was the UnIon's posItIOn that Mr Daneff does not mOnItor the condItIon of the pavement on a regular basIs when he travels m the same faslllon as Ms Boyd and therefore he 4 should be ehgible for travel credIts The Employer suggested that Mr Daneff's dutIes and responsIbIhtIes are vIrtually IdentIcal to Ms Boyd and therefore IllS claim should be denIed. It IS not my mtentIOn to reVIew the eVIdence m extensIve detail I heard eVIdence from Mr Daneff, IllS superVIsor lam Galloway and Cathanne Shaw, Manager of Human Resources for the FmancIaI Control and IT sectIOns of the Northwest regIOn Mr Daneff travels approxImately 14,000 kIlometers per year usually m a MmIstry car He IS tYPIcally out of the office an average of 55 days per year Mr Daneff testIfied that he does not mOnItor the condItIon of the pavement as he travels the roads He said that the maJonty of IllS work IS sIte specIfic He travels to vanous locatIOns for dIstmct purposes and does not mOnItor the road along as he travels He said that he travels by car to a sIte, performs hIS work and then returns by car eIther to IllS hotel or IllS home HIS vast maJonty of IllS travel anses from three Job functIOns, checkmg for frost heavmg m the roads m the spnng, road assessment for stress problems and to provIde engmeenng expertIse such as mspectmg a capItal proJect or provIdmg advIce to a consultant or to a Patrol Mamtenance TechnIcian The road assessment functIOn IS performed by the gnevor dnvmg hIS vehIcle slowly on the soft shoulder He occasIOnally stops to check the road and often stops to make notes on IllS findmgs It IS not tlllS aspect of IllS work that IS at Issue He stated, even under ngorous cross-exammatIOn on the pomt, that he does not watch or patrol the roads whIle he IS dnvmg to or from a work sIte 5 Although he was occasIOnally evaSIve m hIS responses m cross-exammatIOn, the gnevor stated that he has never mOnItored the roads and that m hIS ten years of expenence he has never reported any road deficIency that mIght reqUIre attentIOn Mr Daneff explamed that often at the end of IllS work-day he would "back-track" over the very road he had been assessmg The roads have an 18 year cycle and IllS work IS to observe and remedy gradual changes Accordmg to Mr Daneff, that work cannot be performed from a fast movmg car by one who IS focusmg hIS attentIOn on the task of dnvmg Accordmg to both Mr Daneff and Mr Galloway the Patrol Mamtenance TechnIcians perform the task of mOnItonng and mamtammg the surface of the road from the pomt It was bUIlt untIl It needs reconstnlctIOn Mr Galloway described these employees as the people "who dnve the hIghway on a daily basIs to make sure there are no Issues" The Job specIficatIOn for Patrol Mamtenance TechnICIanS states that the purpose of the posItIOn IS Under the general dIrectIOn of supervIsor, mOnItors roadway condItIons to ensure any hazards and or deficIencIes are addressed, mobIles lllred eqUIpment m the wmter as reqUIred to ensure estabhshed level of serVIce cntena are met, mspectmg work performed by contractors to ensure comphance to standards and contractual agreements Mr Galloway testIfied that the gnevor IS responsible for approxImately 25 per cent of the roads m the Northwest RegIOn Mr Daneff IS expected to observe and recognIze any geotechnIcal changes m the hIghway It was suggested that the mOnItonng of the roads IS mherent to the gnevors work. Mr Galloway also testIfied that certam changes m the road surface could be observed willie travellmg the road at nonnal dnvmg speed such as ruttmg or embankment failures Further, Mr Galloway said that he rehes upon the 6 gnevor's knowledge as well as hIS mput at departmental plannmg meetmgs whIch has mcluded road assessments He explamed the dIfference between the functIOns of Patrol Mamtenance TechnIcians and those of the gnevor The TechnIcians, who know theIr road sectIOn "mtunately", are responsIble for mamtammg the road but If there are problems the department needs to know why the problem eXIsts so there has to be geotechnIcal observatIOn of road changes The gnevor's failure to observe road changes would have a potentIally negatIve Impact on the work of the department In cross- exammatIOn Mr Galloway conceded that he never dIrected the gnevor to mOnItor the road condItIons when dnvmg on MmIstry busmess He further agreed that when Mr Daneff IS performmg hIS pavement surveys he IS lookmg for gradual changes that would reqUIre close observatIOn WhIle the partIes were waItmg for thIS matter to come to heanng the gnevor was madvertently granted permISSIOn to and dId take tIme off utIhzmg the travel credIts at Issue I have not set out that eVIdence for reasons that wIll become apparent later m tlllS decIsIOn UNION SUBMISSIONS The UnIon conceded that thIS Board has already found that where there IS an actual component of the work bemg performed, such as ongomg mOnItonng of the roads, tune spent beyond nonnal hours IS not ehgIble for tune credIts However, the Issue at hand IS whether Mr Daneffhas road mOnItonng as an mherent part of hIS work. ThIS Issue IS a matter of fact and the eVIdence must lead to a findmg for the gnevor It was contended that even If such mOnItonng IS an Employer expectatIOn, that expectatIOn IS unreasonable It 7 was clear from the eVIdence of the gnevor and Mr Galloway that Mr Daneff was never told that there was an expectatIOn of thIS level of mOnItonng Further, the eVIdence revealed that more than twenty five Patrol Mamtenance TechnICIanS actually do tlllS type of work on an ongomg and daily basIs The UnIon submItted that the Employer IS Improperly askmg tlllS Board to apply the decIsIOn It rendered to Ms Boyd to the gnevor However, Mr Daneff and Ms Boyd do not have the same posItIOn nor do they perfonn the same work. It IS Important IS remember that Ms Boyd IS a GeotechnIcal Engmeer at the PBE8 level whIle the gnevor IS a ProJect SoIls Engmeer and has the lower classIficatIOn of PBE7 EMPLOYER SUBMISSIONS The Employer contended that there could be httle doubt that an aspect of the gnevor's work IS the mOnItonng of the roads and my prevIOUS decIsIOn found that work does not bnng about the payment of travel tIme outsIde normal work hours The type of mOnItonng done by the Patrol Mamtenance TechnIcians IS dIfferent from the mOnItonng performed by Mr Daneff The gnevor observes the roads through the eyes of an engmeer SImply put, that IS not the same as the mOnItonng perfonned by the teChnICIanS The eVIdence was that the gnevor made comments and reported observatIOns about the roads at vanous departmental meetmgs ThIS mdIcates that he does m fact mOnItor the roads dunng hIS travels In any event, there can be no doubt that the gnevor IS responsible for mOnItonng the roads and therefore the gnevance should be dIsmIssed. 8 In reply, the UnIon suggested m determmmg thIS matter I should gIve the gnevor's eVIdence more weIght because he IS the person who IS out m the field. Further, It should be recalled that Mr Galloway stated he had no quarrel wIth the gnevor's work or hIS knowledge and he conceded that he never specIfically dIrected the gnevor to mOnItor the roads willie travelhng m IllS car Those facts, coupled wIth the lack of any reference to pavement mOnItonng m the gnevor's Job specIficatIOn must lead me to uphold the gnevance DECISION In the case of Ms Boyd, the partIes agreed to the followmg (found at page 7 of the ongmal decIsIOn) - ApproxImately 40% of her travel would be proJect sIte specIfic, to examme a problem anywhere m the Northern regIOn, such as a constnlctIOn problem, or a slope failure (sIde of a road falhng down), etc She would go to the sIte, make an assessment and decIde whether any further mvestIgatIOn IS reqUIred. The other 10% of her travel would be m connectIOn wIth her Pavement Management functIOn, whIch mcludes mspectmg/observmg sectIOns of pavement from a movmg or statIOnary vehIcle - Part of her Job responsibIhtIes reqUIres that she observe and remam vIgIlant of pavement condItIons dunng any road tnp On the longer sIte VISIt tnps, she would tYPIcally VISIt a number of sItes on one tnp Based on those facts and Ms Boyd's Vlva voce eVIdence I found that her pavement mOnItonng and responsibIhty for pavement condItIons meant that she was dIschargmg specIfic dutIes willie travelhng outsIde her nonnal hours and therefore not entItled to travel credIts for that tIme 9 In the first heanng, as m thIS mstance, the Employer suggested that travel IS an mherent part of the gnevor's work. At page 30 I stated The dIctIOnary definItIOn of "mherent" provIded stated that mherent IS "somethmg as a permanent and mseparable element, quahty or attribute" In my VIew, accordmg to the eVIdence I cannot find that travel for these gnevors IS "a permanent and mseparable element" of the work at Issue WhIle It IS true that they travel to get to theIr work, the travel IS not engmeenng work. As charactenzed m some of the earher GSB decIsIOns, the gnevors' travel was, m large measure, mCIdental GIven the eVIdence of both the gnevor and Mr Galloway, I accept that the type of responsibIhty that the gnevor has for pavement condItIon cannot be fulfilled by watclllng the pavement pass by at hIghway speeds It mIght be that the gnevor would report a road emergency such as a rock fall or an embankment failure although It IS to be remembered that tlllS has never occurred m IllS ten years of expenence However, tlllS does not lead me to find that he mOnItors the road to the extent that It IS an mtegral part of hIS dutIes The Employer suggested that to find for the gnevor would be mconsIstent wIth my earher decIsIOn regardmg Ms Boyd. I dIsagree SImply put, I find that the gnevor and Ms Boyd do not perfonn IdentIcal work. For mstance, Ms Boyd had certam supervIsory responsibIhtIes Indeed, both theIr Job tItles and theIr PBE levels are dIfferent In the mstant case, the gnevor consIstently and credibly denIed mOnItonng of the roads dunng travel and Mr Galloway dId not provIde eVIdence that would have me find otherwIse Further, I heard that there IS a sIgnIficant 10 workforce of Patrol Mamtenance TechnIcians who have ongomg road mOnItonng as a fundamental responsIbIhty By all accounts the gnevor was never told that ongomg pavement mOnItonng IS a task he should perfonn willie travelhng on MmIstry busmess Fmally, the responsibIhty of ongomg road mOnItonng IS absent from the gnevor's Job specIficatIOn In the case of Ms Boyd, I found that the eVIdence estabhshed that she was responsible for mOnItonng the pavement condItIons dunng her travels m her desIgnated area even when that was not the pnmary purpose of her Journey I found that mOnItonng to be perfonnmg work. The eVIdence for Mr Daneff was not sImIlar and for that reason I cannot make a sImIlar findmg F or all of those reasons, the gnevance IS allowed I beheve the Issue of tune credIts already taken IS dIsposed of by thIS result but I remam seIzed m the result there are any ImplementatIOn dIfficultIes Dated m Toronto, tlllS 14th day of January, 2003