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HomeMy WebLinkAbout1984-1257.Peebles et al.87-06-25 Decision ( c' '. . ..... ,\ . / , ~ ... 1111 ONTAAIO CR()>.I.W EMPLOYEES GRIEVANCE SETTLEMENT BOARD J80 ot.U:lAS STFiEE T WEST. TORONTO. ONTAliJO. M$G 118 - SUITE 2/00 BETWEEN: BEFORE: gtjPtJ:J. +0 UNDER IN THE HATTER OF AN ARBITRATION THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT BEFORE THE GRIEVANCE SETTLEMENT BOARD -and- OPSEU (Peebles et al) ~.. ~~ T_...... .T~~,S__, ~_ ....T~ ..~., .-"F~c.'. "'~,~.:~ ......., rt.- ...... ~ TELEPHONE. 4/15/$98- 0688 8 t.J P '-17 /nc/ 1257/84, 1258/84 1259/84, 1260/84 1271/84 LSID Grievor THE CROWN IN RIGHT OF ONTARIO Employer (Ministry of Transportation and Communications) M. R. Gorsky R. Russe 11 G. Peckham FOR THE GRIEVOR: P. Sheppard Counsel Barrister and Solicitor Vice-Chairman Member Member FOR THE EMPLOYER: D. W. Brown, Q. C. Crown Law Office Civil Ministry of the Attorney Gen~ral HEARING: January J, 1986. ," DEcrSl0N The grievances before us are in identical form and state: "l grieve that I have been dealt with in a manner that contravenes Grievance Settlement Board Award 892/84 and K93/84 with respect to the collective agreement Articles #17, 22 and 23 where applicable but not exclusively." The settlement desired is also identical in each grievance and is: tlThat I be dealt with in a manner that is in keeping with GSB Award K92/84 and 893/84 and that I be compensated in accordance with the above Award where applicable." All of the Grievors are Technician 3, survey employed by the Employer and their grievances arise out of a long-standing dispute between the parties which has been the subject of a considerable number of prior awards. The nature of the dispute and the resolution as found in previous awards are clearly set c out in Richard Wilcox and the Ministry of Transportation and communication, (1985) G.S.B. 761/84 (R. J. Roberts). I find the statement of the dispute and the analysis of the Awards set out in the Wilcox Award to apply equally to this Award. Pp.2-15 of the Wilcox Award are appended as Appendix "A" to this Award. A significant difference between the facts in the Wilcox Award and in this Award arises because in the '.Wilcox Award the grievance claimed that the travel time of the Grievor under Article 23 of the collective agreement was being assessed contrary to the collective agreement. The relief that the Grievor there requested was to ~ave his travel time reassessed and paid to him, retroactive to May 1, 1982. "'-./ ',' .,; ;J;:.... ~ ~, . 2 (- The grievances in the matter before us do not rely on a breach of the collective agreement but on a right arising out of the Brent Award referred to in Wilcox. In the Wilcox Award (pp.13-14), it is stated that the Brent Award settlement did not bind employees whose grievances were not the subject of the settlement and that employees, such as the Grievor, in that Award, were not bound by the settlement but could take advantage of it, and retained the right to have their llheadquarters pre-determined on the equitable basis which was first defined in Howes and accepted in the awards which followed thereafter." In the matter before us, the grievances are based on a breach of the rights created in the Brent Award, which the Grievors seek to have applied to them. It is significant that in the wilcox Award (p.9) the Grievor "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.1I Thus, in the Wilcox Award, the Grievor chose to ignore the rights he had under the Brent Award when he filed his grievance on August 15, 1984, which led to the conclusion, at p.14 of the Wilcox Award, that the Grievor's rights with respect to predeter- mination of his headquarters were to be adjudicated on the equitable basis defined in the Howes Award and accepted in subsequent awards. ~~) 3 In the matter before us, notwithstanding the form of the grievance, the Grievors actually seek not the relief provided for in the Brent settlement: that is a claim for reassessment based on their pre-1982 headquarters, but claim commuting costs from their homes in accordance with the pre-1978 practice of the Ministry. In the Brent Award, it is provided in paragraph one that it applies to "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 limited to that which occurred in Central Region) (who] will be re-assigned to their headquarters as they were on May 1, 1982 " The pre-May 1, 1982 headquarters of the Grievors, here, was 3501 Dufferin Street, Downsview, being the central office. What the Grievors really seek is a re-designation of their headquarters not to where they were on May 1, 1982, but to their homes which were treated as their headquarters prior to the change in /~.~ ( .' Ministry policy "(f)rom 1978, when the Ministry began using the concept of designated headquarters II (Wilcox award p.3). The evidence disclosed that the Grievor~ designated headquarters, which were established before May 1, 1982, remain the same and the Brent Award has no meaningful application to the grievances before us. To reassign the Grievors to their headquarters as they were on May 1, 1982 achieves nothing. c ; \ , '- 4 .~ In the Award of William Afful et al. and the Ministry of Transportation and Communications 772/84 etc. (swinton), which was released on November 22, 1985, the basis for the Brent Award is explained at pp.3-4: "Ultimately, a consent award was issued by this Board in May of 1984 (145/82 - Brent), which provided that the Ministry would reassign all field staff adversely affected under Articles 17, 22 and 23 of the collective agreement as a result of the change in headquarters contrary to Ministry policy to their headquarters as of May 1, 1982, unless the change in headquarters was made by mutual consent or was employee initiated. Ministry initiated changes in an employee's location in the future would occur only where a change in employee's location occurs. liThe result of the consent award is to revive the fourteen headquarters existing prior to May of 1982 for some employees. However, for new employees and for employees transferred to a new region, the Ministry is using only the consolidated headquarters which it adopted after 1982." That is, it was the tldecision of the Ministry to reorganize the (" headquarter system in the Central Region in 1982" (Afful at p.3) that led to the Brent Award. The adverse effect referred to in paragraph one of the Brent Award: "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 ..." refers to the 1982 reassignment of headquarters. In the Afful Award, the result of the Brent Award is summarized as reviving "the fourteen headquarters existing prior to May 1982 for some employees. However, for new employees or for employees transferred to a new region, the Ministry is using only the consolidated headquarters which it adopted after 1982.11 In the case before us we are neither dealing with new employees e 5 nor with the grievances of employees transferred to a new region after the Brent Award. If the Brent Award made some difference ,r to the Grievors, they could rely on it as they are not within the .1 p~rview of the exclusion contained in paragraph one: lIsave and except where headquarters were changed by mutual consent, or where employee initiated." Reference to employee initiated headquarters changes in the Brent Award must refer to post-1982 changes which would not be governed by that Award. That is, the complaint which led to the Brent Award was with respect to reassignment of headquarters as a result of the 1982 directive. It is that reassignment which was the subject of a complaint which was attended to in the Brent Award. Here, we are dealing with complaints, not against the 1982 assignments, but against reassignments occurring after the 1977 directive. These were not covered by the Brent Award. Indeed, in the Employer's responses ( to the grievances it is stated: liThe circwnstances of the grievors were not like those in Grievance Settlement Board awards 92/84 and 93/84 but were rather like those of the J. Williamson et a1. award dated 82 05 11 at p.8 and further adopted in the Robert Howes award dated 82 11 25 at p.10, your grievance is therefore denied." ! did not understand the position of the Employer to be that the grievance must fail if the Grievors are not assisted by the Brent Award. Rather, I view the Employer's position as being that the Brent Award did not assist the Grievors and that the matter falls to be determined by the jurisprudence found in Howes and Williamson. On the basis of the Employer's interpretation of those Awards, it concluded that the grievances must fail. I (.. :' "--=-'"....... ... .......:v-T_l'""1I"W:...__-'t-~"I. ___ ....."-"'- ,..~-.. +,.,."'..".~-,....." -. _..........,.-r--~ __~...,,~~...~-,....,-.., .....~..._",_~... .....". ....,......~_,_..........-.-~.............__................__--.--.-------..........,..."+~~____~_ 6 believe that the parties, consistent with the Employer's response, wish to have the grievances adjudicated on their merits and we will endeavor to do so. The Employer's reply to the grievances, relying on the Williamson and Howes Awards as disposing of them, was incorrect. As is made clear in the wilcox Award, while the Boards hearing the series of cases involving the issues first raised in the Williamson Award rejected any attempt by the union to dispose, altogether, of the post-1978 practice of using designated headquarters for the purposes of administering the commuting Articles of the Collective Agreement, and while subsequent Boards followed the view expressed in williamson that the practice of f..- ~. "" i denoting designated headquarters was consistent with the Collective Agreement, the establishment of pre-1982 designated headquarters was subject to a determination between the parties of a designated headquarters which would be equitable to the Grievors and to the Ministry (Wilcox Award at p.6.) , For the same reasons given in the Wilcox Award (at p.13), I too conclude that the Ministry did not violate the Collective Agreement when it refused to calculate the Grievors' claims for time credits under Article 23.3 on the basis of distance from their homes. Nor can I conclude that it was within the collective Agreement for the Ministry to re-calculate this claim on the basis of distance from the Grievors' pre-1982 headquarters. The Grievors not being bound by the Brent Award, that award not otherwise improving their position, does not mean _/t--=-.... (. ) \-~;./ 7 that they do not retain the right to have their headquarters redetermined on the equitable basis which was defined in Howes and accepted in the awards which followed thereafter. (See Wilcox Award at p.14.) As the Board pointed out in the Wilcox Award (at p.14), the breach by the Employer represents a continuing violation of the Collective Agreement. At p.14 of the Wilcox Award it is further stated: ,~-. . "Here, there was a continuing violation because from at least May 1, 1982 onward, the Grievor was assigned to a headquarters which was not equitably determined. II In the case before us the mandated method of determining a headquarters was not equitably determined from the date of the 1978 assignment. As in the Wilcox Award (at p.14) "There was a fresh violation of Article 23.3 of the Collective Agreement on each day that the Grievor remained assigned to his 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 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 27.21 of the Collective Agreement. In view of this, the maximum amount of retroactivity allowed to the Grievor would be limited to that date.1I Relying on, and accepting the reasoning in the Wilcox Award, the grievance succeeds to the extent that it did in the Wilcox Award and the maximum amount of retroactivity that can be allowed to the Grievors would be limited to 20 days prior to the filing of the grievance in each case. The rationale in the Howes Award (at pp.11-12), applies in this Award. As in the Howes Award: 4.......... '\~, ) + .or ,,~~!.~.\ -6..., .~:",'J. . .'"," d II [T]he redesignation of the designated headquarters of the Grievors ... may be equitable to the Ministry, but that is totally inequitable to the Grievor. The selection of [the] ... designated headquarters for the Grievor is artifical to say the least. There is no requirement upon the Grievor to report at any time to [the headquarters selected]. That designation seems to be completely unrelated to the Grievor's job function. The Ministry has the right to designate headquarters which is clearly a management prerogative, but that right must be exercised equitably in the interests of both the employee and the Ministry. IIThis Board finds that the Ministry has violated its own regulations as set out in paragraph 1.10 of the Ministry's Manual and the redesignation of the Grievor's headquarters ... and in so doing has violated the provisions of Article 22.1 of the Collective Agreement." Also, as in the Howes Award, we do not have sufficient evidence ("', before us to determine what headquarters designation would be equitable to both parties and we leave that issue to be resolved by the parties and will remain seized in the event that they are unable to resolve the matter. Because of the facts of this case, the Grievors designated headquarters pending an equitable resolution of the issue will remain as it is. DATED AT London, ontario this 25th day of June 1987. c;rl..~ ~ M. R. Gorsky Vice Chairman - P)7~~~~~L- R. Russell Member -~--v G. Peckham Member (:') ~~..' APPENDIX -A- DECrSION .2 The grievance in the case at hand claimed that the ,r. travel time of the grievor under Article 23 of the Collective Agree- men: was "being assessed contrary to the Collective Agreement." Th~ relief that the grievor requested was to have his travel time re- assessed and paid to him, retroactive to May 1, 1982. ror reasons wh:~~ follow, the grievance is allowed in part and dis~lssed in part. At the hearing, it became readily apparen~ that the issul in ~he 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 Hinistry of Tra~sportation and Communications (1982), G.S.B. 187/81, etc. (Barton). In that case, the Board considered the legitimacy under the Collective Agreement of the Ministry's practice of designating a ~headquarters" fo; an employee and using that headquarters as the basis for calcul(-n~ payments under the commuting 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 each employee for the purposes of making calculations 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: \.. . ~c .... ....1'. ' .. . .' ': - .~ ~, '..-' '~'..{. ''I.~,,~.....~. ..... ~'.'~"""",~'.l"'';' .'. '-4.' i"..........;,~ "'.-.....-.:..,...-~.t.1...,I:.....~.r.~......-;:iC":;;,...~~.... l-?"i(.~''iI.~~<....\,",!~'''\.'''lf'''Li;~.fl.=:'....;...... .3 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 of 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 .. i as an assigned headquarters and :to only pay mile age from that assigned 'place of employment I to a particular destination (job site), ...ld. at pp. 7-8. It ~as 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}, 0.5.B. 1356/82 (Verity). The facts recited in that case made it clear that what animated the grievors was a unilateral change tha~ the Ministry made on May 1, 1982, in order to cut costs. From 1978, when the Ministry began using the concept of ~esignated 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 e~" , "~"d.' ..-. . .4 toward moving away from urban areas where the construction sites were and to select payment of travel costs rather than time off in lieu ,-', th~reof. 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. ... Th~ submissions of the Union in the arbitration of this'grievance incica:~u that, as its first position, the Union sought to have the Ministry return to its pre-1978 practice, which paid all commuting cost! from the home and did not use the concept of designated headquarters. As it secondary argument, apparently, the Union took the position 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 articl/--. 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 sinca 1978 to permit the Union successfully to plead estoppel. See Howes at pp. 5-6. The Board went on to agree with will~amson,supra , that i~ was consistent with the Collective Agreement for the Ministry to ~ssign employees a designated headquarters for the purposes of administering the commuting articles of the Collective Agreement. See Howes at pp. 10-11. The Boar~ then went on to hold "that any re- desiqnation of 'desiqnated headquarters' must be equitable to both the employee and the Ministry.M --. '~4_.""'. .'O-.........._"--.........:......hn."--L.,I;,K"''(...........r~~''~!.....".._~L~t.'",~.-........",\...~\r~"~!-..,..........-.l.."...,~~...;..,,I~......~..,.:l\.......'i~~\,:,,"'i.............' "~.....~.. L'.~ ._"p .5 The Board did not express any rationale derived from the Collective Agreement to explain why it settled upon this additional requirement of "equitab{lity". It likely was based upon the prior practice of the Ministry from 1978 to 1982, as reflected in the Ministry's own published manual governing the . administration of travelling and living expense accounts. Article 1.10 of this manual stated, in pertinent part, that the location of the d~signated headquarters would be periodically reviewed to determine "whcth~r or not the oFiginal 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 grievor's headquarters should be. rd. at p. 12. Upon judicial review, this award was upheld. The Oivisic 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 find nothing patently unreasonable in the interpreta~ion given by the Board to the agreement and its application. Accordingly, the application before us will be dis- missed with costs. ...Re the Queen in Riqht of Ontario and Ontario Public Service Employees Union and Roqer Howes (1984), Case '212/83, Unpublished R~asons tor Judgement Coiv. Ct.), at p. 9. As can be seen, the theoretical basis for this decision was not crisply elucidat_d. It seems to this panel to be unclear whether the C) .6 Court approved the introduction of the concept of "equitability" on' the ground that the Ministry was estopped by its pre-1982 practic~_ or that the Collective Agreement, interpreted in light'of this praw~.cl required it. Subsequently, in Re Speedie & Jones and Ministry of Tran: por~Jtion & Communications (1984), G.S.B. 055/82, etc. (McLaren), it was indicated that despite a certain uneasiness with respect to the analysis in the Howes 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. ! i Accordingly, mirroring the conclusion reache' in Howes, the Board re-established the pre-1982 status quo of the griev with respect to their designated headquarters pending the establishment of,lia 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. 1145/82 (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 administratin9 the commuting articles of the Collective ,Agreement. 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 desiqnated headquarters which would be equitable to the griovor and the Ministry. .r-~'. \;__:J '/ c. >. 4 ~ ~ .T~ I'c. '. c .... ...-' ~ .. The primary advance over previous cases which was offered in Ross was the IU9gestion 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 approvir the concept "that a construction employee should make a contribution toward time and travel costs comparable to the contrib~tion ordinarily made by other public servants who gc to and from work on their own timl and at their own expenseM, id. at p. 17, the Board stated: C') 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 fi~ should be is a matter for inquiry and negotiation, not to be determined by this Board. ... rd. 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 outstandir. grievances upon this basis. In Re OPSEU (Union Grievance) and Ministr of Transportation and Communications (1984), O.S,.B. ~1'45/a2 etc. (Bren there was issued in the form 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 ~he collective Agreement as a result of a change in headquarters outside of the Ministry policy'(i.e., similar but not limited to that which occurred in Central 0' i'~_ .""._'~, ,. ,. .8 Region) will be reassigned to their headquarters as they were on May 1, 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 wili 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 ~nd 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 Ci.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 consistenr'C with the provisions of the Ministry's Travel and ~. Expense Accounts Manual. 4. The Ministry agrees that pending and future changes in headquarters will be dealt with in accordance with the Ministry's stated pOlicy. It is agreed that because individual circurnstance~ can vary significantly, the que stion of equi tabi Ii ty should be determined in a fair and impartial consult- ation with the employee so affected. Such employee will be identified using the following considerations: - qualifictions - availability - current location (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 entitled to the provisions available to, and normally afforded, civil servants. \. / _~ ______...__ ____ __,_ -. _.... ~-.~~ _+" ",__",~~-'~l_."'._.~'#.+~' ....Ilo._.,.........~....:........-.-.....~~I.,...oI-.T-J:..... \..lIo...lr..........#I4....I~.JI,T+.I:"lJ:~..\.....""..~_.. .......... .9 r(, "'t, .,,' ..'''''' 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 re-assignment of the grievors to their pre-1982 designated headquarters. Further, it was agreed that "all field staff...(who had been) adversely affected II under the 1982 changes likewise would be re-assigned to their 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 they would have been entitled had their pre-1982 headquarters been used in calcu1a1 their claims. Pursuant to this Agreement, the Ministry advised all C"~: 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-l978 practice of the Ministry. In August, 1984, the Minist~y 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 1S, 1984, the grievor filed the grievance leading to the present proceeding. In his main submission at the hearing, counsel for the 0-.;.... ,,' , .10 Union atte~pted to"hive off"Article 23.3 of the Collective Agreement, r relating to time credits while travelling, from the other commutin 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 commut~g articles. Article 23.3 reads as follows: {"hen travel is by automobile and the employee travel s 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 general 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 an , e~ployee with time credits for authorized travel to the job site( "from his home or place of emp10ymentH and ~ versa. Counsel for the Union submilted 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 headquarters ,he was, under the wording of this provision entitled to time credits . from his home. This would be the case, it was submitted, even though a claim for mileage under another of the commuting articles of the Collective Agreement, Article 22.1, still mi9ht be calculated from the designated headquarters. We believe, however, that it is too late in the day for ,...-~ '~ ~< < ~ .. ! ..~~ . __.. '_~. ..~,.. _... iF. .. : r4 t. _'.~ ....' .".....LU-"..::._....,:.,q_K.._~._..L...~--':l...:j~..L... 1 J_, ;1 .n the Union to turn and urge this Board to consider in isolation the basis for calculatinc;r mileage, time credits, etc.,' and conclude that a different basu might be us~d for each. From the Williamson case onward, this Board has proceeded on the understanding that the J same location will be used as the basis for calculatin9 each allowanc whother it be for mileage or meals or, as in this case, time credits, . . On this poi~t, the entire line of cases has been consistent. In t~il!ia~son, it was found that it was consistent with the Agreement I to designate a headquArters other than a person's hOMe for purposes of Article 17.2 and 20.2. In, Howes, the same held true when dealing wi~h mileage allowance under Article 22.1. In Speedie & Jones, 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 alj the basis for calculating all commuting costs. (' C'., . ) ..0/ ~!e do not find in the submissions of the Union on the wordin 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 fr~m an employee's home just because he commutes from his home to a temporary jOb site each workin9 'day. It is too broadly worded for that, ~dapted as it is to provide time credits for thousands of employees in a viriety of occupations. The Article must be interpreted in light of its application to each such occupational group, and we cannot say that the interpretation which this Board previously approved regarding construction employees. like the grievor was in error. (r-,\ U r--'i , " .12' Finally, upon this question of interpretation, the Boare cannot ignore the consistent practice of the Ministry. That practle which the Union saw fit to bring to the attention of the Board }~' numerous cases, always was to use the same location as the basis for calculating all commuting costs. On this, there was no dispute. T~ 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 rea iJS follows: 1.2 Claims for Distance Travelled An employee's headquarters shall be the determining 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 headquarter~ ' 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, (i) commute from his headquarters (or residence) to the job site (see Livinq txpenses, paragraph 3.06) or (ii) reside in the vicinity of the jOb si~e. 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 r>- \;)- ,i .......~.,.-.o ....,__..........__ __~.J ......~ot-'.~.~_..~~~ ....."..~.._; "I-""-L. ,..._..... __........_~_...It . 12 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 IIs01e1yw 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 IIshall bell the employee1s headquart~rs. Nowhere within its four cor~ers 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. C' In light of all the above, we must conclude that the Ministry did not violate the Collective Agreement when it refused to calculate the grievor'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 it was within the Collective Agreement for the ~linistry to re-calcu1ate this claim on the basis of distance from the grievor1s pre-1982 headquarters. '!t was suggested in !2!.! that the head- quarters be relocated according to equitable principles and certain guidelines were set out in that award for ehe assistance' of the parties. While the settlement which was reached and recorded ()'--""',,- _ 'l: .~. ~ .14 in the Brent award, supra, was bindin9 upon the grievances which were thereby compromised, it does not bind the griev.or. The 9r ie\' retalns the right to have his headquarters re-determined on the eq~itable basis which was first defined in Howes and ~ccepted in th~ a~ards which followed thereafter. It is to this extent that the --". qri~vance must te allo~ed The Board hastens to add, however, that any fe-assignment of headquarters to the grievor pursuant to such an equitable d~tarmination would not entitle him to a re-ca1cu1ation of his time cr~dits back to May 1, 1982. The grievor received retroactive b~ncfits, ~ore or less, as a gratuitous benefit in a settlement agr~ement in which he was not directly involved. The grievor could have ~rieved his own situation at any time within that period, but he did not. He waited until after the settlement became known to him, ~hich 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 A9reement. Here, there was a continuing violation because from at . least ~ay 1, 1982 onward, the grievor was assigned to a headquarters which ~as not equitably determined. There was a fresh violation of Article 23.3 of the Collective Agreement on each day that the grievor r~mained 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 ~--:a." , , , ,........~....~~~'-""- ..-~~::;~.-.--.-,~-~_..",~..- . r,-"~~ ,.-~---.;~.---_.' ~.....~~.----.='~- ....__~... ,...-... -:,~ -..__r'~~'" :~~-...., 1 -.~-.~~-- ~-- --- ~-=...---;..... -:--~.: ",...'-.~ ."?'.-".~""}:"-"""~."_--"'~"'_ ~ ..,......."7'"""~--n--..~-~"':'='-....,................:-i'"'\ "'f;"~~~-..--v.--.~"".....i-_~._._'.~-~-' .~ ~..I" .~. r_ . : -I[ .. ....1... ...... ~.._ ....t.W--.:.I.!"....~. _.~-'f(/~',J-:t... ~---. _... ~ I. T'. I' .15 violation that the grievor could have complained of in his grievance dated August 15, 1984, would have Occurred 20 days p~ior to that datE S~e Article 27.2.1 of the Collective Agreement. In view of this, the .' . d b ~:':-;':'t'2 Y ~~;<i~~m amount of retroactivity allowed to the grievor would be that date. The grievance is allowed in part. ('~ o I 1 l I j i i