HomeMy WebLinkAbout1984-0761.Wilcox.85-11-253 c,; L’.I .1’ ONTmlKJ CROWN LmO*EES
GRIEVANCE
SETTLEMENT
BOARD
---- IN THE MATTER OF AN~AK~~~RATION
Under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
Between:
Before: ---
OPSEU (Richard Wilcox)
Grievor
- and -I
The Crown in Right of Ontario (Ministry of Transportation and
Communications)
Employer
R. J. Roberts Vice-Chairman
I. J. Thomson Member
A./G. Stapleton Member
For the Grievor: P. Sheppard ;?
Grievance Officer Ontario Public Service Employees Union
For the Employer: D. W. Brown, Q.C. Crown Law Office Civil
Ministry of the Attorney General
Hearing: June 18, 1985
AWARD 2.
The grievance in the case at hand claimed that the
travel time of the grievor under Article 23 of the Collective Agree-
ment'was "being assessed contrary to the Collective Agreement."
The relief that the grievor requested was to have his travel'time re-
assessed and paid to him, retroactive to May 1, 1982. For reasons
which follow, . the grievance is allowed in part and dismissed in part.
At the hearing, it became readily apparent that the issu
in the case at hand arose out of a long-standing dispute between the
parties which became the subject of a number of prior awards issued
by this Board. The first of these was Re Williamson and MinistYy- of
Transportation and Communications (19821, G.S.B. 187/91, etc. (Barton).
In that case, the Board con'sidered the legitimacy under the Collective
Agreement of the Ministry's practice of designating a "headquarters"
for an employee and using that headquarters as the, basis for calculatin:
payments under the commuti,ng articles of the Collective Agreement, e.g.,
for meal allowance under Article 17.2.2, or mileage allowance under
Article 22.
The Union took the position that this practice of using
a designated headquarters for eachemployee for the purposes of
making calculation& under these commuting articles was in error
because the designation of such headquarters was not contemplated in
the Collective Agreement. The Board rejected this position,
stating:
We feel that the Agreement does contemplate employees who may not have a fixed place of work and does contemplate that these employees may have an assigned headquarters. The use oft the term 'assigned headquarters' in Article 17.2 and the-definition of work location in
Article 20.2 . ..seems to contemplate such employees as those surveyors within the Ontario
Central Region in particular . Thus it seems to
us that on the question of whether or not a head- quarters~ other than a person's home may be designated,
the practice adopted by the Ministry is totally con- sistent with the Agreement....We feel that in the situati
in which there is no regrular place of employment, it
is reasonable for the Employer to designate some cental area . . . as an assigned headquarters and to only pay mile
age from that assigned"place of employment' to a
particular destination (job site). . ..Id.. at pp. 7-0.
It was concluded that it was consistent with the Collective Agreement
for the Ministry to designate an assigned headquarters for employees
with no regular place of employment, and .calculate payments such as
mileage from that headquarters to a job site.
The next case to appear was'Re Howes and the Ministry
of Transportation and communications (1982), G.S.B. #356/82 (Verity).
The facts recited in that case made it clear that what animated
the grievors was a unilateral change that the Ministry made on May 1,
l982, in order to cut costs. From 1978, when the Ministry began using
the concept of designated headquarters, to this date, the Ministry
generally designated at the headquarters the Patrol Yard nearest
the employee's residence. On May 1, 1982, the Ministry began to
designate headquarters which were nearest the job sites that the
construction schedule indicated would be in operation in that
construction season. This change was made to curtail rising costs
which had developed because of a trend among
employees
toward moving away from urban areas where the construction sites were
and to select payment of travel costs rather than time off in lieu
thereof.
In Howes the grievance read, in pertinent part:
I grieve that M.T.C. use of a 'designated
headquarters' has no foundation in the Collective
Agreement and is a method being used by management
to circumvent the appropriate commuting articles
of the Collective Agreement. .:.
The submissions of the Union in the arbitration of this grievance
indicated that, as 'its first position, the Union sought to have the
Ministry return to its pre-1978 practice, which paid all. commuti.ng cost
from the home and did not use.the concept of designSated headquarters.
As it secondary argument, . '. apparently, the Union took the p'osition that
the further change on May 1, 1982, could not be upheld because it
violated the Ministry's own published policy regarding the designation
of headquarters for purposes of administering the commuting articles
of the Collective Agreement.
In its award, the Board passed over the first position
of the Union, apparently on the ground that too much time had passed
since 1978,to permit the Union successfully to plead 'estoppe>. See
Howes at pp. 5-6. The Board went on to agree with Wiiiiamson,supra ,
that it was consistent with the Collective Agreement for the Ministry
to assign employees a designated headquarters for the purposes of
administering the commuting articles of the Collective Agreement.
See Howes at pp. 10-11. The Board then went on to hold "that any re-
designation of 'designated headquarters' must be equitable to both the
---l-t~oe r.n.4 the Ministry,"
.5
The Board did not express any rationale
derived from the Collective Agreement to explain why it
settled upon this additional requirement of "equitability". It likely
was based upon the prior practice of the Ministrl from 1970 to 1982,
as reflected in the Ministry's own published manual governing the
administration of travelling and living expense accounts. Article l.lC
of this manual stated, in pertinent part, ~that the location of the
designated headquarters would be periodically reviewed to determine
"whether or not the original arrangement continues to be equitable to
both the employee and the Ministry." The Board thereupon re-establishe
the pre-1982 status quo pending an equitable determination of-.what
the griever's headquarters should be. Id. at p. 12.
Upon judicial review, this award was upheld. The Divisic
Court indicated that the Board had jurisdiction to refer to the policy
manual as extrinsic evidence from which to derive the meaning of the
relevant commuting article of the Collective Agreement. The Court said
In the present instance, the Board undoubtedly
had jurisdiction to enter upon the inquiry, it found Section 22.1 devoid of meaning without
exterior reference, and it referred to the very~
document put forward by management in the course of its application of Section 22.1. There was certainly initial jurisdiction and we fin'd nothing patently unreasonable in the interpretation given by the Board to the agreement and its application. Accordinclv. the aoolication before us will be dis- missed with costs.::.Re the Queen in Richt of Ontario and Ontario Public Service Employees Union and Racer Howes (1984), Case #212/83, Unpublished Reasons for Judgement (Div. Ct.), at p. 9.
As can be seen, the theoretical basis for this decision was not
.6
Court approved the introduction of the concept of "equitability" on
the ground that the Ministry was estopped by its pre-1982 practice
or that the Collective A'greement, interpreted in light of this practice,
required it.
Subsequently, in Re Speedie & Jones and Ministry of Trans-
portation 6 Communications (19841, G.S.B. #355/82, etc. (McLareri), it
was indicated that despite a certain uneasiness with respect to the
analysis in the Rowes'and Williamson decisions, it could not be said
"that the prior decisions are manifestly wrong, particularly in view
of the review of the Howes decision by the Divisional Court and the
subsequent dismissal of the leave to appeal that decision to the--Court
of Appeal." Id. at p. 10. Accordingly, mirroring the conclusion reached
in Howes, the Board re-established the pre-1982 status quo of the irie&
with respect to their designated headquarters pending the establishment
of ‘a headquarter designation which is equitable to both parties".
Id. at p. 12.
In Re Ross and Ministry of Transporation and
Communications (1984),.G.S.B. #145/82 (Jolliffe), the Board again
rejected an attempt by the Union to dispose altogether of the post-
1978 practice of using designated headquarters for the purposes of
administrating the commuting articles of the Collective,Agr.eement.
The Board followed the view expressed in Williamson
that the practice of denoting designated headquarters was consistent
with the Collective Agreement. As in Howes and Speedie & Jones, the
Board rejected the post-1982 change as inequitable to employees. It
re-established the pre-1982 status quo.pending a determination between
the parties of a designated headquarters which would be equitable to
‘..
.?
The primary advance over previous cases which was offere
in Ross was the suggestion that the Board did not consider either the
pre-1982 selection of designated headquarters or the pre-1978 system
to be equitable to both parties. See Id. at pp~ 17-18. After approvi:
the concept "that a construction employee should make a contribution
toward time and travel costs comparable to the contribution ordinarily
made by other public servants who go to and from work on their own timl
and at t,heir own expense", id. at p. 17, the Board stated:
It is suggested that the parties try to agree on
.what would be an appropriate contribution for an employee to make. For example-- and it is only an
example -- if the parties were to find that the -~- average public servant in urban areas travels 8 kilomet getting to.work and spends 20 minutes of his own time
doing it,,.then it is conceivable that the parties might decide to compensate construction employees for any
travel or time in excess of those figures, calculated from' the employee's residence. What the appropriate figi
should be is a matter for inquiry and negotiation, not
to be,determined by this Board. . . . Id. at p. 18-19.
'Thereafter, the matter was'remitted to the parties.
The events which transpired thereafter indicated that
the parties did not find it convenient to'agree to resolve outstandin:
grievances upon this basis. In Re OPSEU (Union Grievance) .and Ministr
of Transportation and Communications (19841, G.S.B. #145/82 etc. (Bren,
there was issued in the f,orm of an award the following settlement
agreement between the parties:
1. All field staff where they have been adversely
affected under the provisions of Article.17,
22 and 23 of the Collective Agreement as a result of a change in headquarters outside of 'the Ministry policy‘(i.e., similar but not T . -~~~~~-m_l :- ---A.-_,
i- : l’.. ”
.8
Region) will be reassigned to their headquarters
as they were'on May I, 1982, or as at a later
date effected, save and except where headquarters
were changed by mutual consent, or were employee
initiated. Further, for the identified,North-
western Region grievors the date will be November
1, 1981. Such situations must be identified by the
employee so affected, in writing to the Regional
Director by October 31, 1984.
2. Retroactive entitlements for. mileage and meal
allowance will be calculated from May 1, 1982, to July 31, 1984, and paid at the rate applicable
at the time it was earned.
Retroactive entitlement for travel.time from
May 1, 1982, to July 31, 1984, will be taken
pursuant to the provisions of the Collective ._
Agreement.
The above paragraphs will apply to the identified
Northwestern Region grievances retroactive to'.~ November 1, 1981.
3. 'Ministry initiated changes in headquarters since May, 1982, and in the future will be considered/made only where a change in an employee's employment location occurs (i.e.,' contract assignment or job
site.) It is the intent of the Ministry that such a change would be of a meaningful distance in order to necessitate a review of headquarters consistent
with the provisions of the Ministry's Travel and Expense Accounts Manual.
4. The Ministry agrees that pending and future
changes inheadquarters will be dealt with in accordance with the Ministry's stated policy. it is agreed that because individual circumstances can vary significantly, the, question of equitability should be determined in a fair and impartial consult. ation with the employee so affected. Such employee will be identified using the following consideration:
- quaiifictions
- availability - current locqtion (home, closest facility and work location) - seniority
Where qualifications, availability and location
are relatively equal, length of continuous service shall be a consideration.
5. Employees affected by a change in headquarters as a result of a change in job site shall be ontitled to the provisions available to, and
,-; ;). . :
‘.
.9
None of the foregoing abridges an employee's rights
under the Collective Agreement nor management's rights per Section 18 of the Crown Employees Collective Bargaining Act.
In this settlement agreement, the parties found mutually acceptable
Further, it was agreed that ."a11 field.staff...[who had been] adversely
affected " under the 1982 changes likewise would be re-assigned to thei
pre-1982 headquarters regardless of whether they filed a grievance.
Moreover, it was agreed that regardless of whether an affected
field staff member had grieved, he or she would be entitled to retro-
'payment of any entitlement under the commuting provisions of the
Collective Agreement, i.e., Article 17, 22 and 23, to which theywould
'have been entitled had their pre-1982 headquarters been used in calcula
their claims.'
Pursuant to this Agreement, the Ministry advised all
field staff that they might be entitled to claim retroactive payment
by virtue of the May 1, 1982; re-designation of their headquarters.
The grievor was one of the non-grieving employees who responded. He,
however, did not submit a claim for re-assessment based upon his pre-
1982 headquarters: rather, his claim was based upon commuting costs
from his home. This (once again) was in accordance with the pre-1978
practice of the Ministry. InAugust,. 1984, the Ministry notified the
grievor that it was reducing his claim to the degree necessary to
reflect a calculation based upon the use of his designated headquarters
rather than his home. Thereafter, on, August 15, 1984, the grievor
re-assignment of the grievors to their pre-1982 designated headquarters.
filed the grievance leading to the present proceeding.
I - I ‘. --:- -s,h-ic~inn a+ the hearinq, counsel for the
\
.” , -7
.1a /
Union attempted to-hive off"Article '23.3 of the Collective Agreement,
relating to time credits while travelling, from the other commutinq
articles of the Collective Agreement. By changing focus in this way,
counsel apparently hoped to emphasize certain words in Article 23.3
which did not necessarily appear in the other commuting articles.
Article 23.3 reads as follows:
Vhen travel is by automobile and the employee travels directly from his home or place of employment, time will be credited from the assigned hour of departure until he reaches his destination and *from the assigned hour of departure from the destination until he reaches
his home or place of employment.
This is a qeneral.Article, broadly designed to cover employees who
have a regular work place and others, like the grievor', who do not
but move, instead, from job site to job site. It provides fan
employee with time credits for authorized travel to the job site
"from his home or place of employment" and vice versa.
Counsei for the Union submitted that because the grievor
travelled directly from his home to the job site, and never was
required by the Ministry to first report to his designated headquarte
he was, under the wording of this provision entitled'to~time credits
from his home. This would be the case, it was submitted, even thouqh
a claim for mileage under another of the commuting articles of the
Collective Agreement; Article 22.1, still miqht be calculated from
the designated headquarters.
7..^ I-,., : -..,3
~~WPIIPT. that it
is too late in the day for
‘r, I : 1, . .
.11
the Union to turn and urge this Board to consider in isolation
the basis for calculating mileage, time credits, etc., and conclude
that a different basis might be used for each. From the Williamson
case onward, this Board has proceeded on the understanding that the
same location will be used as the basis for calculating each allowance
whether it be for mileage or meals or, as in this case, time credits.
On this point, the entire line of cases .has been consistent. In
Williamson, it was found that it was consistent with the Agreement
to designate a headquarters other than a person's home for purposes
of Article 17.2 and 20.2. InHowes, the same held true when dealing
with mileage allowance under Article 22.1. In Speedie & fones-i
I the same location was dealt with as the basis for claims for time
credits under Article 23.3. Finally, in Ross, the ratio and
suggestion of the Board all were based upon using the same location
as the basis for calculating all commuting costs.
We do not find in the submissions of the Union on the wordir
of Article 23.3 any ground for concluding that the previous decisions
! of this Board were wrong. The terms of Article 23.3 do not require
time credits to be calculated from an employee's home just because
he commutes from his home to a temporary job site each workinq
day. rt is too broadly worded for that, adapted as it is to provide
time credits for thousands of employees in a variety of occupations.
The Article must be interpreted in light of its application to each
such occupational group, and we cannot say that'the interpretations
which this Board previously approved regarding construction employees
like the qrievor was in error.
.12 ..-
Finally, upon this question of interpretation, the Board
cannot ignore the consistent practice of the Ministry. That practice,
which the Union saw fit to bring to the attention of the Board in
numerous cases; always was to use the same location as the basis for
calculating all commuting Costs. On this, there was no dispute. The
Union did submit that the Ministry's Manual regarding travelling
and living expenses might support the notion that the Ministry, as
a matter of policy, took the view which was contrary to its practice,
but we find that this is not so.
We were referred to Section 1.2 of the Manual, which reads
as follows:
1.2 Claims for Distance Travelled . .
An employee's headquarters shall be the de.termining factor in calculating his claim for distance costs. 'If an employee's home is closer to his job site than is his headquarters, he shall be allowed compensation only between his home and ~the job site. If, however,
an employee is required to report to his headquarters
either on going to the job site or on returning from it, he may claim the distance between those points. Incidents
of this type must be noted on the expense account.
Within the limits prescribed by these Instructions, and
subject to the approval of the District Engineer or Branch Head, when assigned to a'job located~ at a distance from his headquarters, an employee may,
(il commute from his headquarters (or residence) to the job site (see Living Expenses, paragraph -3.06) or
(ii) reside in the vicinity of the job site.
In the latter case, [ii), the employee shall be entitled
to claim.living expenses (Section3) provided he continues to maintain the residence at which he lived immediately prior to his assignment.
.
Close inspection reveals this to be a general provision relating,
at a minimum, to claims for mileage and time credits under Articles
. ..~~ -.. -~.- 13 * .
22 and 23 of the Collective Agreement.
Moreover, Section 1.2 of the Manual above, makes it clear
that an employee will be compensated for distance measured from his
home "solely" where his home is closer to the job site than his
headquarters. ,The only exception, according to Section 1.2, would
occur when the Ministry required the employee to report to head-
quarters before going to the job site or on returning from it.
Otherwise, the Section provides, the determining factor "shail be"
the employee's headquarters. Nowhere within its four corners does
the Section indicate that an employee who is required to travel from
his home to the job site will be reimbursed for distance costs at that
basis', regardless of other factors.
. .
In light of all the above, we must c~onclude that the Ministry
did not violate thecollective Agreement when it refused to calculate
the griever's claim for time credits under Article 23.3 on the basis
of distance from his home. At the same time, we cannot conclude
that j.t was within the Collective Agreement for.the Ministry to
re-calculate this claim on the basis of distance from the grievor's
pre-1982.headquarters. It was suggested in Ross that the head-
quarters be relocated according to equitable principles and
certain guidelines were set out in that award for the assistance
of the parties. While the settlement which was reached and recorded
.
in the Brent award, supra, was binding.upon the. grievances which
were thereby compromised, it does not bind the grievor. The grievor
retains the right to have his headquarters re-determined on the
equitable basis which was first defined in Howes and accepted in
:. 'the awards which followed thereafter. It is to this extent that the
grievance must be allowed.
Then Board hastens to add, however, that any re-assignment
of headquarters to the grievor pursuant to such an equitable
determination would not entitle him to a re-calculation of his time
credits back to May 1, 1982. The grievor received retroactive'..~
benefits, more or less, 'as a gratuitous benefit in a settlement
agreement in which he was not directly involved. The grievor could
have grieved his own situation at any time within that period, but
he did not. He waited until after the settlement became known to
him, which was in August, 1984.
In these circumstances, the matter of retroactivity arising
out of the grievor's grievance must be governed by the usual rules
which are applied in cases of continuing violations of the Collective
Agreement. Here, there was a continuing violation be,cause from at
least !!ay 1, 1982 onward, the grievor was assigned to a headquarters
which was not equitably determined. There was a fresh violation of
Article 23.3 of the Collective Agreement on each day that the grie.Jcr
remained assigned to this headquarters. For any of these‘violations,
the grievor was entitled to grieve, but only within the time limits
specified in the Collective Agreement. This means that the earliest
.15
violation that the grievor could have complained of in his grievance
dated August 15, 1984, would have occurred 20 days prior to that date .
See Article 27.2.1 of the Collective Agreement. In view of this, the
maximum amount of retroactivity allowed to the grievor would be
limited by that date.
The grievance is allowed in part.
DATED at London, Ontario, this 25th day of November,
1985.
.
Vice Chairman
I. J. Thomson, Member
/
A. G. Stapleton, .- " Member