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HomeMy WebLinkAboutUnion 07-12-12 Dee.18. 2007 11:15AM No.3692 p. 2 In the Matter of a Labour Arbitration pursuant to the Ontario Labour Relatio/lS Act Between: Lakeridge Health Corporation -and- Ontario Public Service Employees' Union Union Policy Grievance - MuIti~site Travel Allowance OPSEU No. 04-348-196 Arbitrator': Randi H. Abramsky Appearances For the Employer: Shane Smith COlUlsel For the Union: Ed Holmes COlUlsel Hearing: September 21 and November 28,2007, in Ajax, Ontario I I I I !. /. i. ! Dee.18. 2007 11:15AM No.3692 p. 3 AWARD The Union filed a policy grievance asserting that the Employer, Lakeridge Health Corporation; violated the collective agreement by failing to pay multi-site workers for their travel as set out in the collective agreement. The Employer asserts that it has fully complied with the terms of the agreement. At issue is the proper interpretation of A.1ticle H.02 ofthe collective agreement - Travel On Hospital Business. Facts Lakeridge Health Corporation was created in 1999, with the amalgamation of four area hospitals - Oshawa, Port Perry, Whitby and Bowmanville. OPSEU is the certified bargaining agent for a unit of paramedical employees employed by Lakeridge Health Corporation. In September 2000, the parties appeared before Arbitrator Murray Lapp in an interest arbitration involving a number of local issues, including travel allowances and the mobility of employees between the Hospital sites. In an Award dated October 10; 2000, he awarded language all these issues that was incorporated in the collective agreement as Articles Hand 1. In pertinent palt; these articles provide as follows: Article I - Mobility of Employees Between Sites 1.01 Employees shall have a designated home site. Such home site may be changed for employees filling vacancies under Article 13. For purposes of I I j i I I f- I- I i ~ .. , 2 Dee.18. 2007 11 :15AM No.3692 p. 4 Article H and Article I, the Employer's sites are as follows: Oshawa, Whitby; Bowmanville, and Port Perry. r.OZ The Employer may assign an employee, who does not regularly work in more than one site, to perform the duties of his/her classification at another site where such assignment is necessary due to educational needs, Olientation or an emergency situation. The Employer will not be unreasonable or arbitrary in assigning such employee to a site other than his/her home site. 1.03 Where an employee is assigned to another site, Article H det.ails the employee's entitlement. Article H - Travel on Hospital Business ROI Except for those employees covered by Article H.02, the following shall apply: 1. After commencing his/her shift and where the employee is requested hy the Employer to go to another site to perfoml the duties of his/her classification: (a) The Employer will provide the means of transportation and travel time bet ween the sites; Or (b) The employee who uses his/her own vehicle will receive travel time and mileage between the sitos from the Employer at the rate of thirty-five ($0.35) per kilometer Or at the corporation rate, whichever is higher. 2. Where during his/her previollS shift the employee is requested by the Employer to go to another site to perform the dllties of hislher classification on his/her next shift: (a) The Employee will provide the method of transportation between the siles; or (b) The employee who uses hislher own vehicle will receive mileage between the sites from the Employer at the rate of thirty-five cents ($0.35) pcr kilomctre or at the corporation rate, whichever is higher. 11.02 For Biomedical Techs, Renal Techs and employees in other classifications who rcglLlarly work in more than one site and where such employee is assigned by the Employer to another site to perform the duties of his/her classification, the following shall apply: 3 j ) i r-- I - i ! -- Dee.1B. 2007 11:16AM No.3692 p. 5 (a) Except as provided for in paragraph (b), employees arc required to use their own vehicle and will receive mileage between the sites from the Em.ployer at the rate of forty cents ($0.40) per kilometer or at five cents ($0.05) f,'Teater than the corporation ratc; whichever is higher; or (b) Where the employee is to transport large equipment, or other itcms that cannot be easily accommodated in the employee's own vehicle, the Employer will provide the means of transportation. (c) Where such assignment occurs after commencing his/her shift the employee will receive travel time between the sites. H.03 The distance between sites, which may include the Employer's locations alld/or other locations (i.e., patient's homes, firc stations, etc.) shall be based on the established practice of the Employer. H.04 When an employee under H.01 or H.02 is assigned by the Employer to go to another site prior to the start of his/her shift, and/or leaves a site other than hislher h(lme site under Article 1.01 at the end of a shift with the effect of traveling outside of hislher assigned shift time, mileage will be paid at the applicable rate and, when cumulative kilometers traveled before andlor after such a shift is 80 kilometres or more, the employee will be paid one-half hour at hislher straight time hourly rate. II.OS .... A number of grievances were tiled in 2002 and 2003 "with respect to the Hospital's posting of positions that refcrenced working at multiple sites." Those grievance~ were settled in a Memorandum of Settlement on July 19, 2004. In pertinent pal1, the settlement provides as follows: 1. The Hospital agrees and commits that aU employees in the bargaining unit have a designated home site in accordance with the collective agreement, i.e., Oshawa, Whltby, Port Perry and Bowmanville and the next seniority list will reflect this. 2. The Hospital agrees that in all future job postings where there is a requirement for the position to regularly work in more than one site, the posting will identify the designated home site for the position and wiU indicate that the employee will "regularly work in more than one site." I i I I I I f. I' , I I 4 Dee.la. 2007 11:16AM No.3692 p. 6 Thc seniority list for the paramedical unit introduced into evidence does list an employee's "homc site" on it. The Union relied strictly on the collective agreement. The Employer offered evidcnce of past practlce through the testimony of Ms. Sandra Kudla, Director of Corporate Biomedical Engineering. She has held that position, or its equivalent, since 1999, and prior to that worked at Oshawa General Hospital Ms. Kudla testified that there are seVen full-time Biomedical Technicians employed by the Hospital (including one vacant positiou). She testifIed that these employees, both pre and post-amalgamation, travel between Hospital sites as well as visit extemal clients such as doctors' offices, physiotherapy clinics; fire stations and other clients. She stated that employees are not paid mileage when they travel to their regularly scheduled sites, and are only paid mileage when they are required to go to another site-a site that is "not a normally scheduled sitc for that day," She testified that biomedieal technicians are "multi-site" employees and are hired to work, on a regular basis, at multiple sites. They have a "normal schedule" and in her view, the site to which the employee is assigned for the day is their "home" site for the day. When asked to explain t.he difference between "home site" and "regular site" she stated that SOmeone who regularly works at a specific site - where they are supposed to show up for the day. that site is treated as their "home site" for the day. Mileage is paid, she stated, for travel to other sites - ones that they are not regularly scheduled to work at on that day. She stated 5 i I I.. I. I i f. Dee.1S. 2007 11:16AM ~,I r, b^ n .^/ I~ 0 ..j ;J_ p. 7 that if an employee goes to his "regular home site for the day", they would not receive mileage. On cross-examination, Ms. Kudla acknowledged that she eould only testify regarding the practiee of the Biomedical Technicians and she had no knowledge about the practices in other departments. She agreed that if an employee reports to the "designated home site", they do not receive mileage, and if they report to another site, other than tbeir "designated home site", they do. Her understanding, however, was that multi-site employees such as Biomedical Technicians have "floating" designated home sites - specific sites that are their home sites on particular days because they have regular, repetitive responsibilities at those sites. The Union, in reply, presented the evidence of Ms_ Leslie Sanders, who has been the I()cal Union President for the past thirteen years. She testified that she was not aware of the practice that Biomedical Teclmieians had more than one designated "home site" until she heard the testimony of Ms. Kudla on the first day of arbitration. The Employer conceded that all employees, including the Biomedical Teclulicians, have only one "designated home site." Positiuns of the Parties For the Union 6 I i' ! i r' i Dee.18. 2007 11:16AM No.3692 p. 8 The Union argu'es that this is a straightfoJWard contract interpretation case. It raises the issue of whether the collective agreement requires the Employer to pay mileage when an employee is assigned to work at another site, other than their designated home site. Tn the Union's submission, the answer is "yes." In the Union's view, the starting point is Article I, which states that all employees have a "designated home site." It can only be changed, it submits, for employees filling vacancies under Article 13. It does not change daily, or week by week. It submits that under Article L03, when an employee is assigned "to another site, Article H details that employee's entitlement." Article H, it submits, applies to employees who regularly work at one site, in H.Ol, and employees "who regularly work in more than one site" in H.02. It argues that reading Article H and I together, the language "assigned ... to another site" must mean a site beyond their regular site - their designated home site. The Union also argues that Article H.03 further supports its interpretation, because it deals with "distance between sites" including the Employer's locations and/or other locations. Likewise, in its view, Article H.04 supports its interpretation as well, bceause if an employee leaves a site other than their home site, under certain conditions, they rceeive a half-hour of paid time. The Union contends that it had no knowledge of the Employer's practice regarding multiple "home sites" until Ms. Kudla's testimony at the first day of the hearing. It also asserts that the practice of multiple home sites clearly violates the i I I I I, I I ~ . 7 Dee.1B. 2007 11:16AM No.3692 p. 9 collective agreement and July 2004 Memorandum of Settlement which provide that employee's have only one designated home site. It also points to the seniority list, which reflects a single "home site;' for each employee, including the Biomedical Technicians. The Union further submits that the Employer's evidence actually supports the Union's position that it is only when an employee travels to their "home" site that they do not receive mileage, but when they travel to other sites, they do receive mileage. At best, the Union argues, the Employer's evidence of past practice applies only to a few Biomedical Technicians. The Employer The Employer asserts that the Union erroneously believes that this case turns on an employee's home site. It asserts that travel entitlements are not tied to an employee's home site, except in Article H.04. Rather, it asserts that mileage is only paid when an employee is required to travel to "another site" beyond their regularly schedul.ed site(s). The Employer agrees that Ms. Kudla's testimony that there is more than one "designated home site" was in euor. It insists, however, that the practice about which she testified was not refuted by the Union. Specifically, it asserts that the practice, with multi-site employees, is to pay mileage only when they arc required to travel to a site other than their regularly assigned sites. Mileage has not been paid when they travel to sites other than their "designated home site." The Employer asserts that the Union wants it "both ways" in regard to Ms. Kudla's evidence ... that she is wrong in relation to her 8 i f f' I f ! Dee.18. 2007 11:16AM No.3692 p. 10 testimony about employee "home sites" but relies on it when she said that employees rceeive mileage when traveling to locations other than their "designated home sites". The Union's position, it argues, disregards Ms. Kudla's understanding that an employee's regularly assigned site is their "home site" for the day. The Employer further argues that Ms. Kudla's testimony regarding the practice of paying travel expenses for Biomedical Technicians has not been refitted by the Union. The Ernployer nlrther asserts that the language at issue in this case was not drafted by the parties but was imposed on the partics in the Lapp Award in 2000. It asserts that Mr. Lapp introduced the concept of a "home site" and if he had intended that all employee's "home site" had any relevance to mileage reimbursement in Article H.02, the words would have been included in that provision. It asserts that because the words appear in Article H.04 but not in Article H..02, the concept of "home site" has no relevance to Al1icle H_02. In its view, the words "assigned to another site" mean just that - assigned to a site other than their regularly assigned. sites. Decision At issue IS the meaning of Article H.02 of the collective agreement. That provision reads: For Biomedical Techs, Renal Techs and employees in other classifications who regularly work in more than one site and where such employee is assigned by the Employer to another site to perform the duties of hislher classification, the following shall apply... 9 j I i I I f' I' i r' Dee.1B. 2007 11:16AM No.3692 p. 11 Article H divides employees into two groups - employees covered by Artielc H.02, who Tegularly work in mOTe than one location, and employees who regularly work at one site and are covered by Article H.Ol. In both cases, travel reimbursement arises when they are assigned by the Employer to go to "another site." In the case or an employee assigned to only one location, detennining what is meant by "another site" is easy. What it means in the context of employees ''who regularly work in more than one site" fimns the cmx of the parties' dispute in this case. The Union asserts that whenever an employee is assigned to a site, other than their designated home site, he or she is entitled to mileage reimbursement under Article H.02. For a number of reasons, I cannot agree with that contention. It is clear that, with amalgamation, issues regarding employees traveling between sites arose. This is evident from the Lapp Award, which dealt spccifically with the issues of "mobility of employees between sites" and "travel on hospital business." It is also clear that there were two types of employees at issue - employees who regularly stay at one loeation and employees who regularly work in more than one site. As noted, for both groups of employees, mileage reimbursement arises when they arc assigned by the Employer to go to "another site." In my view, the more reasonable interpretation of the language in Article H.02, for employees "who regularly work in more than one site", is lhat mileage reimbursemcnt arises when they are assigned by the Employer "to another site" other than thejr regularly assigned sites. 10 ! J j. I, I ~. Dee. 1 8. 2007 11: 1 7 AM No.3692 p. 1 2 Article H.02 applies to employees who "regularly work in more than one site" _ not just their "designated home site" like employees who are regularly assigned to just one localion. It then provides "and where such employee is assigncd by thc Employer to another site", reimbursement applies. The word "and" is significant, as are the words "assigned by the Employer to anothcr site," The use of the word "and'; indicatcs that it rclers to an a~signment beyond their regularly assigned sites. This is reinforced by the words "assigned by the Employer to another site" - again referring to assigned sites beyond their regularly assigned sites. The Union's contention that reimbursement applies whenever a multi-site employee is assigned to a site other than their "designated home site" negates thc lll1dcrlying premise of Article H.02 that employees "regularly work in more than one site." Nor do I .find - that the Union's interpretation is compelled by Article L03. Although Article 1.01 requires that all cmployees "shall have a designated home site", and Article L 03 states that "[w]here an employee is assigncd to another site, Arlicle H details the employee's entitlement" to travel reimbursement, Article 1.03 does not mean that an employee will receive travel reimbursement whcnever they travel to a site other than their home site. Under Article L03, travel entitlements are governed by Article H. Consequently, it is the language of Article H,02 that controls the entitlements of an employees who "regularly work in more than one site," Further; the conecpt of "home site" docs not apply to Articlc H.02. Article fl.04 IS the only provision that refers to an employee's ('home site" in relation to travel II I I I i f" I. I I I Dee.IS. 2007 11:17AM No.3692 p. I 3 rcirnburscmenL Under standard prineiples of contract interpretation, the presence of the words "home site" in Article H.04 and their abseuce in Articlc R02 indicates that the concept of "home site" was not intended to apply to Article H.02_ If Article H.02 were meant to roquire mileage reimbursement whenever an employee was assigned to a site other than their "home site", the provision would have so provided. The evidenee of the Hospital's practice supports the Employer's interpretation of Article H.02 - that travel reimbursement only applies {o an employee who "regularly works in more than one site" when the employee is assigned to ..another site" other than his or her regularly assigned multiple sites. This is what Ms. Kudla testified is thc practice among the Biomedical Technicians. Her characterization of the employee'.g rcgldar multi-site assignments as their "home site" for the day was clearly mistaken, as the Employcr concedes,. But the substance of her testimony was that the Biomedical Technicians did not receive mileage for going to their regularly assigned sites, but only when assigned to other sites. To be sure, hor evidence was limited to the Biomedical Tcehnicians, a small group of employees. There was no evidence introduced as to how mileage has been paid for employees in other departments who "regularly work in more than one site". But significantly, there was no contrary evidence by the Union that another practice existed, or that Ms. Kudla was mistaken about the practice in regard to Biomcdlcal Tcchnicians_ Therefore, although limited, the evidence of the Employer's practice is unrefuted. 12 I , I ,. Dee.18. 2007 11:17AM No.3692 p. 14 The Union argues that any evidencc of past practice before the Lapp Award in ilTelevant and that the practice afterward cannot be relied upon because multi-site grievances had been raised. In tenus of the pre-Lapp Award practice, I agree that it has no relevance. I cannot agree, however, that the post-Lapp Award practiee has no relevance. Whi Ie there were a significant number of gricvances filed regarding multi-site issues in 2002 and 2003, there is no evidence that those grievances involved travel reimbursement. In argument, counsel for the Union asserted that there was no evidence that they did not involve travel reimbursement issues. On the contrary, the Memorandum of Settlement states that the grievances involved "the Hospital's posting of positions that referenced working at multiple sites." Further, substantively, the terms of the settlement deals with "future job postings..." If, despite the description of the grievances in the Memorandum of Settlement and the substance of the settlement, the grievances did involve travel reimbursement, the Union could have led evidence to that effect, either through presenting the grievances themselves or the testimony of Ms. Sanders who was the local Union President at the relevant time. As the evidentiary record stands, there is no evidence that the Union challenged the Employer's application of A11icle H.OZ prior to the filing of this grievance on October 27, 2004, approximately four years after the Lapp Award. Therefore, the Employer's practice since the Lapp Award llntil the gtievance was filed does have relevance. Finally, it is my view that the Employer's interpretation is the more reasonable one in the context of employees who regularly work in more than one site. Employees who work at one location are not reimbursed for commuting to work under A1ticle H.O I. 13 , r' f. I i l. Dee.18. 2007 11:17AM No.3692 p. 15 It is only when they asked by the Employer "to go to another site" that they arc entitled to receive mileage. Likewise, employees who "regularly work in more than one site" are not reimbursed for travel to their regular multiple sites, but only receive mileage when they are "assi&'Tled by the Employer to another site." This interpretation trcats both groups of employees the same - neither is reimbursed for reporting to their regularly assigned locations and qnly receive travel reimbursement when assigned by the Employer to "another site. " Con elusion Accordingly, for all of the reasons set forth above, J conclude that Article H.02 only requircs mileage reimbursement for employees "who regularly work in more than one :siLe" when he or she is "assigned by the Employer to another site", i.e., a site other than his or her regularly assigned sites. Article H.02 does not apply whenever an employee is assigned to one oftl1cir regular sites other than their .'designated home site." J thercfore conclude that the Employer has not violated Article H.OZ of the collective agreement and the grievance is therefore dismissed. Issued this 12th day of December, 2007, .. ...- Randi H. Abramsky, Arbitrator 14 I I I I I f. I f.