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HomeMy WebLinkAbout1982-0355.Speedie and Jones.84-03-02, IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD Between: Before: R. McLaren T. Traves J. Morrow Vice Chairman Member Member For the Grievor: P. Cavalluzzo, Counsel Cavalluzzo, Hayes & Lennon For the Employer: D. Brown, Q.C., Counsel Crown Law Office Civil Ministry of the Attorney General Hearing: January 31, 1984 OPSEU (B. Speedie & R. Jones) Grievors - And - The Crown in Right of Ontario (Ministry of Transportation and Communications) Employer -2- AWARD ----_ Mr. Speedie, a Survey Party Chief, and Mr. Jones, a Survey Technician, grieve. "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, thereby depriving me of remuneration for out of pocket expenses in fulfilling my job. I further grieve that designated~ headquarters is a departure from established practice." The evidence establishes that both men are required to use their automobile while engaged in the business of their employer. Therefore, the qualification for the application of Article 22.1 is established. That Article reads: ARTICLE 22-MILEAGE RATES EXPRESSED IN KILOMETRES 22.1 If an employee is require3 to use hi5 OW” a”tomObile on the Employer’s business the lollowing rates shall be paid effective April 1, 1982: Kilometres Southern Northern Driven Ontario Ontario o- 4.000 km 23.50,k~ 24.0WklTl 4.001-12.000 km lS.OQ/km 18.501km 12.001 km and over 15.OWkm 15.5Cikm The provision cannot be applied without the use of some administrative practice to establish the method of measuring the kilometres travelled for which the entitlement set out in Article 22.1 is to apply. Article 22.1 deals with entitlement to payment for an employee's use of his own automobile while on the employer's work. Article 23 deals with the entitlement to payment for an employee's time spent in travelling outside of working hours. The rate of payment will be determined by an employee's wage rate. The provision cannot be applied without the use of some administrative practice to establish the method of measuring the time associated with the need to travel outside of working hours. The relevant provisions of that Article read: ARTlCLE Z:=T,ME CREDITS WHILE TRAVELLING 23.1 Employees shall be credited with all time spent in travel- ling outside of working hours when authorized by the ’ rmnlstry. . . . 23.3 When travel is by auiomobile and the employee twels 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. . . . The employer has used the same administrative practice to determine the time spent travelling associated with Article 23.3 as has been used to determine the kilometres travelled pursuant to the application of Article 22.1. The administrative practice prior to 1978 was to designate the employee's home as the headquarters for the purposes of calculating mileage and time spent travelling. In 1978, the administrative practice was changed and the employee's home was no longer designated as the headquarters. Instead, the nearest patrol yard of the Ministry was designated as the headquarters. The redesignation of a headquarters was the subject of a review by a panel of this Board in the Williamson et al decision of Vice Chairman Barton dated May 11, 1982. In May of 1982, the administrative practice was again changed. The new practice was to designate headquarters for' employees closer to the centres of construction activity. In both Grievers' cases that meant that then headquarters became the Gormley Patrol Yard, which was 9 miles from their work site rather than the Lorneville Patrol Yard for Mr. Speedie which was 50 miles from the work site and the Baldwin Patrol Yard for Mr. Jones which was 30 miles from the work site. Mr. Tom Smith, a witness for the employer and in charge of making the redesig- nation of,headquarters, testified that the change was made because of the rising cost of getting personnel to the job sites. He testified thatthe cost was rising because employees were increasingly selecting payment of travel costs rather than time off in lieu thereof which seemed to have been the preference in previous years. He also testified that it was the Ministry's conclusion that employees were moving away from the urban area where the work was and then were able to claim compensation for travelling to work. The new practice was the subject of review by a panel of this Board in the Howes decision of Vice Chairman Verity dated November 25, 1982. That decision was subsequently reviewed by the Divisional Court in a decision released on January 9, 1984, in which it was unanimously found that the panel of the Board had initial jurisdiction and "We find nothing patently unreasonable in the interpretation given by the Board to the agreement and its application. Accordingly, the application before us will be dismissed with,costs." Leave to appeal the Divisional Court decision to the Court of Appeal was heard on February 6, 1984, and was dismissed.~ The identical issue that was before the panel of this Board in the Howes decision is now before this panel. There is an additional issue involving Article 17--Meal Allowance and in particular, Article 17.2.2(b), which reads: "ARTICLE 17--MEAL ALLOWANCE . . . 17.2.2 If during a normal meal period the employee is travelling on government business other than: . . . (b) within twenty-four (24) kilometres of his assigned headquarters, or #I . . . The similar issue was before the panel in the Williamson decision, but not in the Howes decision. The disposition by this panel of the first two issues in these proceedings will be determinative -6- of this third issue involving the interpretation of Article 17.2.2(b) because if the employer were entitled to the reassignment of the headquarters to Gormley, then no meal allowance would be paid under the Article. Alternatively, if the employer was not entitled to make the reassignment, then meal allowances would be required to be paid under the Article. Therefore, the violation or non-violation of Article 17:2.2(b) will follow logically from the results determined by this panel in respect of the interpre- tation and application of Article 22.1 and 23.3 and the administrative practise associated with those provisions. At issue is the employer's ability to change, during the life of the collective agreement, an administrative practice which provides the method of measurement to determine amounts owed under Article 22.1 and 23.3. The case deals with the grey area between the costs any employee is normally expected to bear in getting to and from work and the costs an employer is normally expected to bear in requiring employees to use their automobiles in the course of their employment. The employer in changing the admini- strative practice shifted costs out of its pocket and into the employee's pocket, rationalizing that they were legitimate costs associated with travel to and from work and not costs associated with the use of an automobile in the course of employment. While the rationalization on the part of the employer may be a sound one, it bears little relation to the contractual obligations of the collective agreement. Counsel for the union in his most able, excellent and very complete argument, essentially reiterated the arguments found to be persuasive by the panel in the Howes matter and added some additional arguments not placed before that panel. Counsel for the employer argued that the equities ought to be balanced. Through the testimony of Mr. Jones and with the acquiesence of counsel for the employer, a ,policy manual of the employer was proved to be in existence and to be that discussed in the Howes decision. The provisions of the policy manual quoted in that award read as follows: "1.02 Eligibility for Expenses To establish the authority for reimbursement of an employee for expenses incurred by him on Ministry busin'ess the appropriate District Engineer or Branch Head must designate for that employee a stated headquarters as the point of departure of his operations. The employee must be officially notified of the location of this headquarters (See paragraph 1.07) 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 not the original arrangement continues t0 be equitable to both the employee and the Ministry. Subject to the periodic review, an 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. -’ -8- 1.11 Headquarters - Home Located Outside of Regional or bistrict Boundaries 'Should management'choose to make an employee's home his headquarters, and that home is located outside the Region or District in which he is employed, a location on a Provincial Highway where it crosses the Regional or Dis.trict Boundary on the most direct route between the employee's home and the Regional or District Headquarters, shall b,e designated as his headquarters." , This manual, in the submission of counsel for the employer, is said to be used by the Ontario Government to cover more employees than merely those associated with the M.T.C. While that may be the case, that has nothing to do with whether the manual ought to be considered as part and parcel of the collective agreement. The panel of this Board in the Howes decision found at page 11: "We would aqree with the Barton rationale in Re Williamson et al, that where there is no regular place of employment (as in.the instant Grievance), the Ministry may designate headquarters and pay mileage from that designated headquarters to the job site. Similarly, the Ministry has the right, if it so desires, to designate an employee's home as his headquarters." The panel then went on to extend what it had interpreted the prior award as saying by stating: "This Board would extend the Barton rationale to state that any redesignation of "designated headquarters" must be equitable to both the employee and the Ministry within the meaning of paragraph 1.10 of the Ministry's Manual." - 9 - In effect, the panel in the Howes decision incorporated the statement of the employer's manual into the collective agreement because Article 22.1 could not be interpreted without reference to an administrative practice. That practice called for periodic reviews of the headquarter designation and was to be done in the following fashion: I, . ..district engineer or branch head to determine whether or not the original arrangement continues to be equitable to both the employee and Ministry..." The panel then went on to find at page 11 that: "In our view, the redesignation of the designated headquarters of the Grievor . ..may be equitable to the Ministry, but that it is totally inequitable to the Grievor...." The panel then proceeded to uphold the grievance. While this panel of the Board might not entirely agree with the Howes and Williamson decisions and might well have dealt with the issues using a different analysis, that is not the question before us. In the context of general arbitrable jurisprudence, quite aside from the practice of the Grievance Settlement Board, it has been said in Re Brewers' Warehousing, 5 L.A.C. 1797, at 1798 (Laskin, 1954) that: "It is not good policy for one Board of Arbitration to refuse to follow the award of another Board in a similar dispute between the same parties arising out of the same agreement where the dispute involves the interpretation of the agreement." - 10 - "Nonetheless, if the second Board has the clear conviction that the first award is wrong, it is its duty to determine the case before it on principles that it believes are applicable." To a similar effect, see the cases of Re Falconbridge Nickel Mines, 23 L.A.C. 165 (Simmons, 1971); Re Prince Rupert Fishermen's Co-Op Association, 29 L.A.C. (2d) 69 (Lawson, 1980--B.C.); and Re Stelco, 27 L.A.C. (2d) 252 (McLaren, 1980). If an arbitration board reaches the conclusion that an earlier decision was manifestly wrong, it should then refuse to follow the earlier decision. See Re Stelco, 27 L.A.C. (2d) 252 (McLaren, 1980). In this case, the best that this panel of the Board could say is that it might not have reached the same conclusion nor done so in the fashion in which the prior Boards did so. This Board. cannot say 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. The Divisional Court was of the view that it ought to exercise restraint in reviewing the interpretation placed upon the language of the agreement negotiated under the provisions of a statute which established a specialized board such as the Grievance Settlement Board. The principle ought to apply with even more vigour when a panel of the Board is faced with the identical issue to a previous decision of another panel of the same Board. If this Board were to depart in its reasoning and i - 11 - conclusions from that of the panel dealing with the Howes matter, then the result would be that employees within the same Ministry affected by the same change in administrative practice would have entirely different results flowing from their grievances. In a situation where the jurisdiction of the Board is as broad and covers as many employees as in this case, it is obviously sound policy for this panel to exercise restraint in reconsidering and reinterpreting the same issue unless it has come to the conclusion that the prior Board was manifestly wrong. This Board does not come to that conclusion nor was it argued to be such. Therefore, the grievances must succeed on the rationale found in the Howes decision. The result of that conclusion will be the following orders. The Board finds that the employer has violated its own administrative practice as set out in paragraph 1.10 of the manual in redesignating the grievers' headquarters to Gormley. In so doing, it violated the provisions 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 as set out in the manual which requires a headquarter designation which would be equitable to both parties. Until that process has been completed, the grievors are to be placed in the position that they were in prior to the change in the administrative practice, 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 - 12 - in effect until a headquarter designation which is equitable to both parties has been achieved. It is ordered that the grievors be compensated for all monies lost as a result of the breach of Article 22.1 and 23.3. It is further found that there has been a breach of Article 17.2.2(b) and the grievers are to be paid for the cost of meals pursuant to that provision. The Board is retaining jurisdiction to determine the quantum of the monies which would be owing to the grievors as a result of these orders. DATED at London, Ontario, this 2 day of March, 1984. R. McLaren ice Chairman ' T. Traves Member d Morrow. Member