HomeMy WebLinkAbout1976-0104.Union.77-04-20_-
Ontarl0
104/76 ---
cr,owt4 EMPLOYEES 416 9644426 suite 405
GRIEVANCESETTLEMENT 77 Bloor Street Vest
EOARO TORONTO, Ontario
M5S lM2
'IN THE. MATTER OF AN ARBITRATION
Under The
CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
Between: Ontario Public Service Employees Union
And
Ministry of' Transportation & Communications
Before: D. M. Beatty Chairman
J. W. Henley Member
D. Anderson Member
For the Grievor:
Mr. J. A. Millard
Ontario Public Service Employees Union
For the Employer:
Mr. N.-H. Pettifor, Staff Relations Supervisor
Ministry of Transportation & Communications
Hearing:
March 28, 1977
Suite 405, 77 Bloor Street West
Toronto, Ontario
2.
The grievance that has been filed with this Board
requires us to perform the relatively routine and straight-
forward task of placing an interpretation upon the words of
Article 29 of the collective agreement that they will reasonably
bear. That article provides:
ARTICLE ‘29 ~- ‘TiXE ‘CREDITS ‘h’BILE ‘TRAVELLIiVG
29.1.1
For pay purposes, eqZoy~es shall be credited with all time spent in travelZing
when authorized by management. Such time
w-i12 be computed as follows:
29.1.2 When travel is by public carrier, from
one 111 hour before the scheduZed time
of departure of the carrier until ens ~.
(1) hour after the act& arrival at the
destination.
29.1.3 When tnzveZ is by a&omobiZe and
(a) when t+ employee travels directly from his home w&l he reaches his
destination, from the assigned
hour of departure from the destination
w&i2 he reaches home;
(b) when the employee reports to his
pike of employment before proceeding
to txvel, from the time he leaves
his pZace of empZo,yment u&i2 he
reaches his destinatwn, &C t that
compensation OiZZ not ‘be paz *T for
the time between the hours of eleven p.m.
(11:OO p.m;.I and the reguk starting
time of the empzoyee when sleeping
acconnnodation is provided.
29.2 AZZ travelZing time shall be compensated at
the enployee’s stmight time rate provided.~~
that, when an employee is required to tnzveZ on his day off or a holiday he shaZ2 be
compensated atthat rate for a minimum of
four 14) hours.
More specifically, and as described in their agreed statement of
facts, the single issue that has been placed before this Board is:
3.
whether or not those empzoyees of the
Ministry represented by the Union, who
are paid a daily comm&ing allomnce in
accordance with Ministry administrative
practice, are also entitled to “TmveZ Time” as described in Article 29.
In presenting this joint submission to the Board the
parties had, prior to coming before us (and in a manner which
from our perspective they have done with a pleasant regularity),
also agreed as to certain other matters, which were of immediate
relevance to the disposition of this grievance. In the first
place the parties were of the common view that an employee
would be entitled to claim time credits for travelling under
Article 29.1 only when he was authorized to travel during periods
that fell outside of his regular working hours. Furthermore it
was agreed between them that Article 29 had no application to
the time an employee wasp required to travel from his home to his
designated employment headquarters. That is to say, the time
spent by an employee "travelling to work" in the normal circumstances
was not intended to be compensated by Article 29. However the
parties also shared the view that Article 29 was intended to apply,
by its terms, at least to those circumstances in which an employee
was required to travel, outside of his regular hours, either from
his home to a destination of work which was other than his head-
quarters or regular place of employment, or from his regular
place of employment, where that was a Ministry facility, to some
other work destination. Thus, it was conceded by the employer that
under its present practice and policies, it already allocated
.-.._
4.
to its employees the requisite time credits when they are
required to travel from a Ministry facility which is their
employment headquarters to some other work destination in
their off duty hours. Similarly and in addition the employer
admitted that time credits'are presently allocated'to an
employee who is authorized to travel outside of his regular
working hours, from his home to some place of business other
than his regular employment headquarters. However, and what is
in dispute between the parties is whether the employer is
similarly obliged in that instance when an employee is required
to travel, outside of his regular working hours, on a regular
and routine basis,to some place of work from their home when
the latter is designated by the employer as being their regular
place of employment or headquarters. Put somewhat differently
the sole issue before this Board is whether those employees,
who commonly fall within a group of persons who work in the
Ministry's construction and survey staff~on various construction
sites, and who have, for a variety of reasons had their homes
designated by the employer as their headquarters, or place of
employment, are entitled to the time credits provided in Article
29 when they routinely travel, between their homes and their
'work or job destinations outside of their regular working
hours.
So described, the resolution of this issue, is as we have
earlier noted a 'relatively simple and straightforward one.
Succinctly, and as we have repeatedly advised in our earlier
awards, this Board must, where it can do so, give effect to the
5.
clear and unambiguous language of the agreement to which the
parties have manifested their consent. Put somewhat differently
we cannot, in the face of clear language in the collective
agreement to the contrary, add to or derogate from the expressed
rights and obligations stipulated by the parties~ simply on the
basis of our own reservations with the merits or wisdom of
particular provisions of the agreement. Nor, as'the employer
implicitly urged us to do, can we refrain from giving effect
to the clear language of the agreement simply because this
particular Ministry may, in the circumstances described, have
already.instituted its own policies for remunerating such
persons by means of a commuting allowance. Indeed, that is true
however much we may sympathize with the reasonableness or the
merits of the employer's internal practices and policies. Very
simply such policies and payments are in the nature of ex gratia
allowances, unilaterally promulgated by this Ministry, and cannot
be_allowed to supersede or derogate from the obligation assumed
by.the signatories to the collective agreement. In the
result, the fact that the employer presently compensates
such persons by means of a commuting allowance when they are
required to travel more than 15 miles between their homes'and the
work location, cannot derogate from whatever rights those same
persons are entitled to by virtue of Article 29.
In formulating the issue before us in such a manner,
the resolution of this grievance falls to be determined by
the familiar formula of plumbing for an interpretation of
Article 29.1 that its language will reasonably bear. So directed
we are of the conviction that by its plain terms Article 29.1
6.
is wholly applicable to the circumstances of the instant
grievance and requires the employer to credit an employee, whose
home has been designated as his headquarters or place of
employment, for all of the time he is authorized to travel,
outside of his regular hours, between his home and his various
work locations. Moreover, in our view, Article 29 is fully
applicable, in the circumstances described; -regardless of the
distance travelled by the employee. That is to say, when
persons whose homes have been designated as their employment
headquarters are required to travel, pursuant to the modes
described therein, from their homes to some other job site.or
work location in periods other than their regular working
hours, they are, on our reading of Article 29 "travelling
when authorized by management" , and thereby entitled to be credited
for all time so spent. In other words we are of the considered
opinion that when this Ministry offers, to their employees, as
it does, the option of either living, at the employer's expense,
at the work site itself or of travelling on a daily basis from
their home, as their designated employment headquarters, to the
location of their work, it has explicitly authorized the time spent
travelling~to the work destination if and when the employee
chooses that alternative. In short, we reject the position
advanced by the employer, that because the decision of which
of these two alternative modes of working at job sites located
away from one's employment headquarters is made by the
employee, rather than the employer, that the.employer
has not "authorized" the employee to travel in those
7.
circumstances. To the contrary, in our view, the presentation
of these alternatives to the employee, simply means
that both of these modes of reporting for work are
in fact authorized by the employer. That is to say and to
advert to the accepted dictionary meanings of the term "authorized",
once the employer asked the employees in question, whose homes
had been designated as their employment headquarters, to choose
between either living at the work location or travelling to and
from that site from their homes, it expressly "sanctioned",
"countenanced", gave its "permission", and "invested" them with
the "requisite authority" to select either alternative. In
short and in proceeding in a such manner, the employer "authorized",
or permitted those persons to travel outside of their regular
hours,from their designated headquarters to their work destination.
In those circumstances, on our reading of its terms, Article 29.1
requires the.allocation of th~e'time credits.
Moreover, such a conclusion is, in one sense, consistent
.,with the employer's own practice, conceded above, in which it -._ ;.:i+
allocates the relevant time credits under Article 29 to an
employee who is required to travel outside of their regular
working hours from a Ministry facility to a particular work site,
where the former is designated as the employee's employment ._,
headquarters. That is to say we are unable to perceive any
language in Article 29.1 which would support.the distinction
urged upon us by the employer. To the contrary and regardless of
whether an employee's employment headquarters is his home, as
in the case before us, or a Ministry facility, Article 29.1
obliges the employer to allocate time credits for the period
of time that is required to travel between that place and
the actual work location. In our view the fact that the employer
itself already credits employees with the time spent travelling,
outside of the regular working hours,between their employment
headquarters and their place of work when the former is a
Ministry facility, supports our interpretation that Article 29
requires a similar response when the employment headquarters
is, at the employer's designation, the employee's own home.
Although, in the face of what we have characterized to
be clear and unequivocal language, we have described the
resolution of this particular grievance as being relatively
simple and straightforward, we would readily concede that the
application of this award to and the implementation by this
Ministry may have serious and profound implications for it and
its employees alike. Very simply, and as the employer
eloquently argued before us, the present policy, which is
nowhere to be found in the collective agreement, of paying
persons, whose homes have been designated as their employment
headquarters,a commuting allowance when they are required to
travel in excess of 15 miles is the product of several years
of experience in the Ministry as well as of suggestions made
by the employees themselves; and is intended; with respect to
the particular group of employees described above, to further
their expressed ambition and ability to live with their families
throughout the work week. Whether such a Ministerial initiative,
both with respect to the designation of an employee's ,home as his
employment headquarters and with respect to the payment of the
commuting all~owance, must or should coexist with a contractual
9.
requirement such as Article 29, is not for this Board to
decide. As noted at the outset, our jurisdiction is restricted
to considering the terms of the agreement and not to assessing
the reasonableness of an employer's internal policies. Neverthe-
less, where, as here, a Ministry has attempted in good faith
and in a reasonable manner, to respond to a particular and
unique employment situation so as to alleviate the expressed
concerns of a specific group of its employees, the wisdom of
and need for negotiating an all encompassing; omnibus clause
such as Article 29, may appear to be less compelling than it
otherwise might have. Indeed it may well be that in drafting
such provisions the negotiators should presumptively refrain
from treating the.public service as a monolithic and uniform
structure, and give effect to the acknowledged diversity of
the employment relationsfiips with which they are dealing sol
as to provide particular provisions applicable to specified
employment situations where they are warranted. Failure to do
so may well result, as in the present circumstances, with other
more serious consequences befalling many of those employees for
whom the negotiated clause was intended to benefit. Indeed, it
is that same failure by the bargaining agent to fully ass&s and
particularize the anticipated,costs and benefits of pressing a
grievance before this Board which could, as in the present case,
well result in a majority of employees having.to suffer and endure
the "fruits" of a "successful" award that has been pressed by
a minority of its members.
10.
In the result and for the reasons given, we must
conclude that those employees who travel to a work location
from their homes, when the latter are ~designated as their
employment headquarters, outside of their regular working
hours, are entitled to claim the benefit of the time credit
specified in Article 29 for any period they are so travelling
and regardless of the distance travelled. While we would
expect that this determination as to the proper meaning to be
applied to Article 29 will allow the parties to resolve the
individual grievances that gave rise to the complaint before
us, we will remain seised of this grievance with respect to
its implementation for thirty days following upon its release.
In addition, and with respect to any individual grievances that
may be subsumed under and governed by the principles articulated
in the present award, we would direct the parties, as to the
matter of what amount of compensation may be due and owing
to those grievors, to our earlier award in'Re'Ont&o PubZic
Service Emplogees ‘Union and ~Ministry ‘df ‘the ‘Attorney Genera2
71/76 wherein we stated:
While it is, in our view, clear that the
employer failed to conply with the provisions
of Article 10.3 throughout the period from
January 26, 1976 until July 12, 1976, we do
not believe that these enpzoyees, who initiated
their complaint only on May 25, 1976, my
properly claim relief throughout that period.
To the contrary, and to hoZd otherwise, would
be to inppoperly penalize the eqloyer for the
breach of an agreement of which it ms not aware. Thus, where as here, the breach of the
agreement is in the nature of a continuing one, boards of arbitmtion have consistently limited an enpbyee’s right to claim dmnages for the breach of the agreement to the period of time
within which it was pemissible to fiZe his grievance. ore Union- Gas ‘Co. 'of ‘Cada ,Limited
(19721, 2 L.A.C. (Zdl 45 (Weatherill).
11.
Re.Au~matic'Scra,,Machine'Products Ltd.
f1972), 23 L.A.C. 396 (John&ml. 'R@'iVati&Z
'Atiti'Rci&ititi@ 'Wizif~Ot&riz~Co. 119671,
18 L.A.C. 326 Palmer).
In the result, and for the reasons given this grievance
must succeed.
Dated at Toronto this 20th day of April 1977.
I co-
J. W. Henley
Member
I co-
D. Anderson
Member