HomeMy WebLinkAbout1982-0147.Sherwood.84-03-13Between:
Before:
IN THE MATTER OF AN ARBITRATION
Under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
OPSEU (E.A. Sherwood) Grievor
- And -
The Crown in Right of Ontario (Ministry of Transportation
and Communications) Employer
E.B. Jolliffe, Q.C. Vice Chairman
H.L. Robinson Member
A.G. Stapleton Member
For the Grievor: P.J.J. Cavalluzzo, Counsel
Cavalluzzo, Hayes & Lennon
For the Employer: D.W. Brown, Q.C., Counsel
Crown Law Office.Civil
Ministry of the Attorney GeAeral
Hearing: January 20, 1984
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D E' C' I' S' I 0 N
In a grievance dated February 17, 1982, Mr. E.A.
Sherwood, a Senior Technician Construction employed with the
Ministry of Transportation and Communications, made the following
complaint:
M.T.C. Construction Staff Benefits have traditionally been
based on employees home address. Benefits are now being
based ontheoretical "headquarters" which has been repeatedly
and arbitrarily changed by Management invariably to Management
benefit.
Mr. Sherwood then said his grievance was based on the
following points: "headquarters" was not defined in the collective
agreement; there was no authority for "allocating" headquarters;
there was no authority to change headquarters; if there were to
be changes, they should be negotiated and agreed to by union
members; differences between benefits in the Central Region and
other regions were unjust. The griever asked for restoration of
the employees' home address as "the historic and only constant
and equitable base" for benefits.
In principle this case is similar to others decided by
this Board recently: Howes 356/82 (when the employer failed in
applications for judicial review and leave to appeal); Speedie
& Jones 355/82 and Ross 145/82.
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The Union relies on articles 22.1 and 23.1 of the
collective agreement. They are as follows:
22.1 If an employee is required to use his own automobile
on the Employer's business the following rates shall
be paid effective April 1, 1982:
Kilometres Southern Northern
Driven Ontario Ontario
0- 4,000 km 23.5c/km 24.Oe/km
4,001-12,000 km lB.Oc/km ia .5dkm
12,001 km and over 15,.OC/km 15.5c;km
23.1 Employees shall be credited with all time spent in
travelling outside of working hours when authorized
by the ministry.
Also cited by counsel for the grievor were ce'rtain
paragraphs in the Ministry's Manual relating tom "Expense Accounts
- Authority, Responsibility and Definitions." The most important
paragraphs are the following:
1.09 Eligibility for Expenses
To establish the authority for reimbursement of an employee
for expenses incurred by him on Ministyr business the approp-
riate District Engineer or Branch Head must designate for that
employee a stated headquarters as the point of departure for
his qperationa. The employee must be officially notified of
the location of this headquarters. (See paragraph 1.07)
Paragraph 1.07 is as follows:
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1.07 Responsibilify of District Engineers and Branch Heads
~District Engineers and Branch Heada shall,
(1) designate the lieadqu&rteG of each employee and
(11) monitor the exp&we accounts of personnel by initiating
a system of unscheduled exemifiations of claims at irregular
intervals.
Lack of conc'ern about expenses incurred and expense accounts
submitted by the s.taff m.ay be construed by the personnel as
negligence on the pari of those responsible for administration.
Such an attitude can, and all too oftendoes, lead to abuses.
1.10 Location and Permanence of Headquarters
The headquarters of an employee shall be at the place considered
most convenient for the efficient conduct of the Ministry's
business. The location of an employee's headquarters shall be
periodically reviewed by his District Engineer or Branch Head
to determine whether or hot the original arrangement continues
to be equitable to both the employee and the Ministry. gubject
to the periodic review, en employee's headquarters shall.be
moved only when he is officially transferred,to another District
or Branch, or to a job site at which it is anticipated that he will
work for at least'two years.
1.2 Claims for Distance Ttavelled
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 headquarters
neither 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 twa job located at a distance from his headquarters,
an employee may,
(1) commute from his headquarters (or residence) to the job
site (see Living Expenses, paragraph 3.061, or
(11) re~side in the vicinity of the job site.
In the latter case, (111, the employee shall be entitled to claim
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living expenses (Section 3) provided he continues to
maintain the residence at which he lived immediately
prior to his assignment.
In Howes 356/82 (Verity, Vice Chairman) it was held
that !'any redesignation of 'designated headquarters' must be
equitable to both the employee and the Ministry within themeaning
of paragraph 1.10 of the Ministry~'s Manual." That statement was
discussed by the Divisional Court on an application for review.
In a unanimous judgment it was said:
In the present instance, the Board undoubtedly had juris-
diction to enter upon the inquiry:; it found section 22.1,
devoid of meaning without exterior reference, end 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 interpretation given by the
Board to the agreement end its application.
An application for leave to appeal from that judgment
was dismissed early in February of this year. It is thus apparent
that the principle recognized in Howes must be respected. This
has already occurred in Speedie & Jones 355/82; 359/82 (McLaren,
Vice Chairman) decided on March 2.
The remaining question is whether the facts in this
case are such as to suppor't findings similar to those in the
Howes and Speedie cases.
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Since 1969 the grievor has resided in the City of
Niagara Falls. From 1972 to 1978 his home washis "headquarters".
In October, 1978, the Thorold Tunnel was designated as his "head-
quarters," but in May, 1982, it became the'Beaver,Dams Patrol Yard.
The Ministry is responsible for the construction and
maintenance of the provincial network of highways. Almost all
construction projects are awarded by tender to private enterprise,
but the Ministry finds it necessary to employ design engineers,
survey parties and also technicians to assure the quality of the
work and compliance with contract requirements. Many projects
are undertaken in the crowded corridor between the Niagara
peninsula and Metropolitan Toronto. Whether for construction or
improvement, these projects are necessarily scattered; they may
last for only a few weeks or for many months and activity slackens
in the winter. Thus an employee may work at several different
.
work-sites over a period of one or two years. To reach the site
and to carry his equipment from place to place he must use either
his own vehicle or a Ministry vehicle.
Mr. Sherwood drives his own car to work. Since 1982,
his job site has been at Highway 406 and the Queen Elizabeth Way,
and he expects that job to continue until May, 1984. From the
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Thorold Tunnel to the job site is about 14.5 kilometres; from the
new headquarters at Beaver Dams it is 13.2 kilometres. The grievor
claims he has been wrongfully deprived of .the difference when the
employer computes travel allowances. In travel time he says the
difference is between 20 minutes and 18 minutes. The griever's
position is of course that his "headquarters"~ should be at his
home, but he is now grieving against the change from the Thorold
Tunnel to Beaver Dams, not the 1978 change from his home to
Thorold Tunnel. In testifying, he did not offer an estimate of
his r,esulting financial loss since 1982.
In this case the only witness called by the Employer's
counsel was Mr. Tom Smith, formerly Director of the Ministry's
Central Region, which includes the Niagara peninsula as well as
the Hamilton area, Metropolitan Toronto and areas to the east
and northeast as far as Trenton and Peterborough. Since 1982
he has been Executive Director of the Engineering Division.
As appears on Exhibit 7A, there were -L- prior to May,
1982 --- numerous so-called "headquarters" in the Central Region,
there being'at least a dozen in the peninsula, of which the Thorold
Tunnel was one. In 1982, however, following an analysis of
employees' addresses and also then Ministry's construction plans,
the number of nheadquartersV was reduced to nine for the whole
Region. Of these only one, Beaver Dams, is in the peninsula.
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Exhibit 7C shows the location of Mr. Sherwood's home, the Beaver
Dams Patrol'Yard and his present job site.on~ Highway 406.
Mr. Smith stated candidly that the purpose of the
sweeping changes in 1982 was to effect savings in costs. In his
opinion the cost of "mileage and travel time" had been far too
high. Mdreover, in 1981 an increased number of employees had
applied for overtime pay instead of accepting days off in lieu
thereof. He suggested there was a "trend for marrying couples
to move further away," although since 1978 they have all had
designated headquarters --- away from home, He estimated that ins
the Central Region the savings effected by the 1982 changes amounted
to about $450,000.
Cross-examined, Mr. Smith said the problem had been
discussed with the OPSEU President~in 1982, and that there were
further meetings .with the Union, which was informed of the pro-
posed changes. (Mr. Sherwood had complained about this). Mr. Smith
suggested there was ample opportunity for "compensating leave"
when work is slack in the winter, and referred to Article 23.6
in the collective agreement:
23.6 All travelling time shall be paid st the employee's basic
hourly rate or,where mutually agreed, by compensating leave.
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Mr. Smith admitted that about half of the employees in
"Plans" have their homes as "headquarters"; for the other half
the Ministry's establishment at Downsview in Metropolitan Toronto
is the designated headquarters. .'
Re-examined, Mr. Smith said that what sets apart the
"Plans people" is that "they'mo,ve around almost weekly." Further
decisions about such matters were being delayed "pending the
experience in construction."
In argument, Mr. Cavalluzzo, counsel for the griever,
submitted that a construction employee's home should be his
"headquarters." In the alternative, the griever's designated
headquarters until the 1982 change -- Thorold Tunnel -- should be
reinstated.
Pointing to Article 22, counsel said it mentioned only
"kilometres driven." There was no reference to a "mythical head-
quarters.," Articles 22 and 23 provided certain benefits: the
employer could not "vary agreed benefits as it sees fit." If
there were to be variations, they should be negotiated. Mr.
Cavalluzzo challenged the statements in Williamson 187/81 and
Howes 356/82 that the employer has the right to designate head-
quarters. In his submission, both decisions were "clearly wrong"
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on that point.
As for the meaning of Article 22, counsel said that if
it's ambiguous the language of the Ministry's Manual helped to
explain it and make the meaning clear. The employer, he said, had
wilfully violated its own policy (as stated in the Manual) by
failing to take into account what the equities were.
For the employer Mr. Brown said two panels of the Board
(in Williamson and Howes) had accepted the employer's right to
designate headquarters. The words "employer's business" applied
when the employee is doing the employer's work; "it's his respon-
sibility to get there first." The "business" was at the job-site,
and the only driving on business would be from the headquarters to
the job-site. Thus, Mr. Brown argued, Article 22 is not ambiguous;
the 'vital words are: "on the Employer's business." He suggested
that this panel of the Board disregard "the views in both Howes
decisions."
In reply Mr. Cavalluzzo said the Divisional Court had
made clear that it was proper to apply the test (in the Manual) of
what is equitable. "Under 1.10," he asked, "did the griever's
headquarters in May, 1982, continue to be equitable?" The employer
had offered no evidence that it was inequitable. I
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We have taken note of other cases in which a similar
problem arose. In Williamson et al 18741. et ai, the facts were
somewhat different and the panel of this Board'chaired by Professor
Barton held'that "on the question of whether or not a headquarters
other than a person's home may be,designated, the practice adopted
by ~the Ministry is totally consistent with the Agreement," and
all the grievances failed. At the same time, the following
significant observation was made at page 8 of the decision:
If the designation of assigned headquarters were changed
on .a regular basis one might have some suspicion that
the employer was misusing its power to designate.
In this case the evidence is that until October, 1978,
the designated headquarters, of the grievor was his home in Niagara
Falls. Then it became the '.Thorold Tunnel, but if the~.job site
was closer to his home than to Thorold,the mileage calculation was
made from his home, as though it were again his "headquarters."
This may have been reasonable,, but it illustrates the highly
artificial character of the "headquarters," which is not really
a headquarters_at.all but a convenient reference-point on the map
if it happens ~to be closer to the job-site than is the employer's
home. In May, 1982; a~ new "headquarters" was designated at the
Beaver Dams Patrol Yard, with similar rather anomalous results.
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The two changes undoubtedly reduced the griever's entitlements fork
mileage, ~/and travel time..
Although the Ministry's prerogatives are made clear in
section 18(l) of the Crown Emp,loyees Collective Bargaining Act,
the reasoning in Howes was that the Ministry had fettered itself
by requiring (in the Manual) that arangements be equitable for
both the Employer and employees, and that reasoning was upheld by
the Divisional Court.
In Howes the Board concluded By stating:
This Board finds that,the Ministry has violated its own
regulations se eet'out in paragraph 1.10 of the Ministry's
Manuals in the redesignation of, the Gri,evor's headquarters
to Gormley, end in so doing has violated,the provisions
of Article 22.1 of the Collective Agreement. We do not
have evidence before ue to determine what headquarter
designation would be equitable to both Parties:
Accordingly, we leave that issue to the resolution of
the Parties, and~will remain seized in the event that
the Parties are unable to resolve the matter. In the
interim, this Board will re-establish the status quo,
and ,revert back to Baldwin as the Griever's designated
headquarters pending en equitable resolutidn of the
issue. The Griever shall be compensated for any and all
lost mileage from Baldwin to the job ,site and return,
subsequent to the Ministry's redesignation of his head-,
quarters in May of 1982. In addition, we shall retain
jurisdiction in the event that there are any difficulties
between the Parties with regard to compensation to the
Griever , or in the interpretation or administration of
this Award.
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In Speedie & Jane’s, decided in March of this year,
the Board concluded as follows:
The Board finds that the employer has violated its own admin-
~istrative practioe ss set out in paragraph 1.10 of the manual
in redesignating the grievers’ headquarters to Gormley. In
so doing, it violated the prdvisions of Article,22.1 and 23.3.
It is ordered that the matter be remitted to the parties to
be dealt with in accordance with the provision ss set out in
the manual which requires a headquarter designation which
would be equitable to both parties. Until that process has
been completed, the grievers are to be placed in the position
‘that they were in prior to the change in the administrative
‘practise, which in the case of Mr. Speedie means that his
designated headquarters is to be Lorneville and in the case of
Mr. Jones, it is to be Baldwin. This order is to remain in
effect until e headquarter designation which is equitable to
both parties has been achieved. It is ordered that the grievers
be compensated for all monies lost &a result of the breach
of Article 22.1 end 23.3. It is further found that there has
been a breach of Article 17.2.2(b) end the grievora are to be
paid for the cost of ,meals pursuant to that pro,vision.
The guard is retaining jurisdiction to determine the quantum
of the monies which would be owing to the grievers as s result
of these orders.
It is ,worthy of note that in the alcove case the Board
referred ,to Article 23.3 of the Agreement, which is as follows:
23.3 Whentravel 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 des-
tination and from the assigned hour of departure from the,
destination until he reaches his home or place of employment.
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In this case also', we are bound to find that the Ministry
violated its own administrative practice as set out in paragraph
1.10 of the Manual, and in so doing violated .the provisions of
i Article 22.1, 23~1 and 23.3. Before disposing of the matter it
may be appropriate to offer the following comments.
(1) The Ministry's employees assigned to construction
sites arein a different position from that of other public servants
who normally travel from their homes to a fixed place of employment
each working day of the week, and return at the end of the day or
the end of a shift. The position is also different from that of
a public servant who may be sent out of town fora day or more at
a time for a specific purpose, and,who may travel by car or bus or
train or by air.
(21 The special characteristics of the work done by an
employee such as the grievor are perfectly clear. The location
of the job-site is entire,ly beyond his'control and it is also
beyond.the contr~ol of then Ministry in the sense that the location
is dictated by priorities in the public need for improved, transpor-
tation facilities. Thus the job site may happen to be only a
kilometre 'away from the employee's home --- or it may be as much
as 100 kilometres away. Moreover, it is always temporary; it may
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last only a few days or as long as two years. These characteris-
tics have nothing in common with most work in the public service.
(3) There is merit in Mr. Brown's suggestion that a
construction employee should make a contribution toward time and
travel cost comparable to the contribution ordinarily made by
other public servants who go to.and from work on their own time
and at their own expense. Itisnot reasonable that construction
employees should be compensated for all their travel time or -
expense between their homes and their jobs. By the same token
it would be inequitable to penalize .them for being obliged to
travel long distances to job sites, that being a burden other
publics servants are not required to bear.
(4) Another comment must be that what seems fair to
most employees in one year may become unfair a year later because
of shifting priorities or the adoption of new construction schedules.
Even if devised with the best of intentions, the present formula
appears certain to create inequities.
(5) There is no evidence on which this Board could
devise a formula that would be equitable to both the Ministry and
the employees. We do not think it has been shown that the system
in vogue before October, 1978, was fair to both parties.
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The Board's conclusion is that the parties should
negotiate a better formula. 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 kilometres getting to work and spends 20
minutes of his own time doing it, then it is conceivable 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 figures should be
is a matter for inquiry and negotiation, not 'to be determined by
this Board.
As we have pointed out, the designation of the employee's
home as his "headquarters". is not a satisfactory permanent solution.
Nevertheless, the changes imposed on Sherwood in 1978 and May, 1981,
were contrary to the requirements of the agreement'and the manual.
His complaint about the change in 1978 is not really before us .
because his grievance was ~presented in February, 1982, and ,related
to the second change, which was to become effective in May. In
our opinion the only remedy available is restoration of the situ-
ation as it existed in February., 1982. His official "headquarters"
then was at the Thor-old Tunnel,' although the employer's practice
was to compute allowances on the distance from his home if it
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happened to be closer to the job-site. This seems to have been
a kind of "heads I win; tails you lose" arrangement.
Consistent with the Board's decisions in Speedie & Jones
as well as m, it is ordered that the matter be remitted to
the parties to be dealt with in accordance with the principle
that a headquarters designation ~must be equitable to both parties.
Until completion of that process the grievor is to be placed in
the position he was in prior to May 3, 1982, when his official
headquarters was Thorold Tunnel. It is further ordered that he be
compensated for all financial loss as a result of the change in
May, 1982.
The Board is retaining jurisdiction to determine the
quantum if the parties are unable to agree on the amount due to
the griever.
Dated at Rockwood this
13th day of March, 1984.
E.B.Jolliffe,Q.C. Vice Chairman
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H.L. Robinson Member
EBJ:sol
A.G. Stapleton Member