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HomeMy WebLinkAbout1985-0480.Seebach et al.87-04-09Before: File No. 0480/85, 0481/85 and 0495185 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEEIENT BOARD OPSEU (D. Seebach, G. Graham & S. Tupper) -and- Grievor The Crown in Right of Ontario (Ministry of Transportation & Communications) Employer R. J. Roberts Vice-Chairman I.. J. Thomson Union Member A. J. Stapleton Employer Member For the Grievor: P. A. Sheppard Barrister & Solicitor For the Employer: D. W. Brown, Q. C. Counsel Ministryaf the Attorney General Crown Law Office Civil Hearing: September 30, 1986 2. DECISlON At the outset of the hearing in this matter, it was brought to the attention of the Board that one of the grievors, Mf. G. Graham, was not present at the hearing. It was agreed that his case should be adjourned sine die, and we proceeded to -- hear the remaining two grievances. Basically, these involved com- plaints by surplus employees who had been reassigned in accordance with the Collective Agreement that their new designated head- quarters were not selected by the Ministry in accordance with appropriate criteria. It was requested that they be redetermined in accordance with the agreement reflected in Re OPSEU (Union Griev.) and Ministry of Transportation and Communications (1984), G.S.B. #145/82 et seq. (Brent). - Counsel for the Ministry objected to jurisdiction upon two grounds. The first was that the grievors waived or were estopped from obtaining compensation in accordance with the Brent award, supra, because that award placed the onus upon employees to give notice of their complaint by October 31, 1984. The grievors did not give any notice, and, indeed, their grievances were not filed until May and June of 1985. The second ground was that the grievances were out of time. They were filed, it was submitted, well beyond the time limit prescribed by the Collective Agreement. 3. After recessing to consider these objections, we dismissed them. As to the first ground, we were not in a position to judge whether the grievors actually were seeking to bring them- selves within the preciseterms of the agreement set forth in the Brent award. As to the time limit question, we found that as in Re Wilcox and Ministry of Transportation and Communications (1985), G.S.B. No. 761/84 (Roberts), the grievances were continuing grievances based upon repetitive breaches of the Collective Agree- ment. It was stated that this seemed to provide a complete answer to the submissions of counsel for the Ministry. While the delay of the grievors might affect the amount of retroactivity to which they might become entitled, it did not.affect their right to grieve. Likewise,, we found that the time limits in the Collective Agreement could not foreclose a claim based,,upon repetitive breaches of its provisions relating to time credits while travelling, mileage and meal allowance. The f irst grievor, Mr. S. Tupper, test ,ified that he has been a Technician 3 Surveyor with the Construction Branch of the Ministry since 1974. He apparently spent most of this time in.the Ottawa area and from 1981 to 1984 had as his designated headquarters the Winchester Patrol Yard, which was five kilometers from his home. In the Spring of 1984, Mr. Tupper was advised that there was a lack of work in his region and as a result, he was 4. scheduled to be laid off on November 4. At a meeting of affected employees which was called in May, it was explained to the grievor and his colleagues that their names had been placed on a surplus list and from May through to November, the Ministry would attempt to place them in other positions. They were assured that no one would lose his job. While he preferred to get another job in the Ottawa area, a dearth of vacancies led him to begin considering openings around Toronto. Apparently, these openings were presented to the surplus employees in the form of an assignment to a particular Patrol Yard which would become his designated head- quarters. Mr. Tupper rejected a position in Burlington because he wanted to remain on the northeast side of Toronto in order to remain closer to his family in Winchester. It was for this reason, he stated, that he took a job which was assigned to the Patrol Yard at the junction of Highways 401 and 10. Apparently, at some point after that Mr. Tupper decided to move his family from Winchester to Milton. The move took place in the last week of August. It was not until after this decision was make that he heard from management that his actual job assignment was to be in Whitby. This was a location which was 21 kilometers from the grievor's designated headquarters at Highways 401 and 10 and 50 kilometers away from Mr. Tupper's new home in Milton. The assignment to Whitby lasted from September, 1984 to February, 1985. 5. On February 20, 1985, the grievor was assigned to the Field Office in Brampton. This required Mr. Tupper to drive past the Patrol Yard at Highways 401 and 10 on his way to and from work. He was paid travel time, etc., solely from this designated headquarters. Mr. Tupper remained in this situation until May 1, 1986 when he moved to Oshawa. The Board was advised that Mr. Tupper was not making any claim for the period from May 1 onward. Mr. Tupper explained that he began considering filing a grievance in February, 1985, when he learned that some of his co-workers were headquartered at the PatrolYard in Palermo. This was 13 kilometers south of Milton on Highway 25. He agreed on cross-examination that those employees who were headquartered in Palermo were not from the same group~of surplus employees as he was. They apparently had been there a long time. The grievance did not get filed until May, 1985, the,grievor stated, because he did not know who to contact. Mr. Tupper explained that he grieved because he thought it was unfair that some co-workers should have Palermo as their designated headquarters while he did not. In his view, he stated, all employees should get the same benefits. He added that when he was in the Eastern Region the designated head- quarters always was the nearest Patrol Yard to the employee's home and he was used to that. 6. The second grievor, Mr. D. Seebach, testified that he had been a Techician 1 Construction with the.Ministry since 1974. From 1979 to June, 1984, he said, his designated head- quarters was the Ki the time, he stated t , In April, 1984, Mr. Seebach was advised that he was chener Patrol Yard of the Ministry. At he lived in Kitchener. on the surplus list. At a meeting which was held in May, he stated, he and his fellow surplus employees were told the Ministry would find jobs for them but some would not be too desirable. There.were three positions available at Highways 401 and 10, he was advised, and Mr. Seebach decided to apply for one of those. He stated that he did so because he could not exercise his displacement rights under the Collective Agreement. He explained that at that time, there.was no designated headquarters located within a 42 kilometer radius of Kitchener, which was the specified distance within which displacement rights could be exercised. As a result, Mr. Seebach stated, he took a job assigned to the Patrol Yard at Highways 401 and 10. This was a designated headquarters about 75 kilometers away from Kitchener. Despite this, Mr. Seebach decided not to move. Mr. Seebach commenced working at his new job on June 18, 1984. In July, he stated, all of his co-workers were suddenly c ; c 7. getting their old designated headquarters back as a result of the Brent award. This meant that some people returned to designated headquarters at the Morriston Patrol Yard, which was within _,40 kilometers of Kitchener. Mr. Seebach said that if he had known that this was going to happen, he would not have taken the job at Highways 401 and 10 but would have been able to displace someone of lower seniority at the Morriston Patrol Yard. This was, he stated, only 22 kilometers away from his home. Mr. Seebach stated that he thought that he should be accorded the same benefit as many of his co-workers, i.e., that he should be considered to have been transferred to the Morriston Patrol Yard from June 18 onward. This was, he stated, the closest headquarters in the Central Region to his home. He added that he always had made it clear to his supervisors that he intended to drive daily from Kitchener and had not made any attempt to collect expenses under the guise of moving his residence. In the Brent award,supra, the parties attempted to resolve by agreement a situation which arose out of a unilateral decision by the Ministry to change the established headquarters of many of its employees. This was a move, which. resulted in sometimes drastic reductions in the travel allowances of con- struction employees. It essentially was agreed that the 8. f. ield staff who were adversely affected would be reassigned to the headquarters they had prior to the change. In an award which was issued in November, 1985, a’ panel of this Board concluded that the agreement reflected in the Brent award and the cluster of other awards of this Board which dealt with the issue had as their concern "the unfairness to employees who had made a decision as to their place of.residence based on certain expectations about travel costs and then found their expectations disappointed because of a unilateral decision by the employer. It is the employees' reliance that the Board sought to protect." Re hfful and Ministry of Transporation and Communications (1985), G.S.B. No.~772/84 et, seq (Swinton). We are not prepared to say that in reaching this conclusion the Board was clearly wrong. In Afful, the Board sought to give shape to its earlier decisions "which acknowledged the employer's right to designate headquarters, subject to the criterion of equity." Id. at p. - 9. Equity was served by protecting the reliance interest of employees. So it was equitable for the Ministry to "grandfather" those field staff who were adversely affected by its May, 1982 decision to consolidate into fewer locations the fourteen designated headquarters that it previously used. And in the Brent award, these fourteen locations were effectively revived for the "grand- fathered" employees. But "for new employees and for employees transferred to a new region , the Ministry [continued to use] only the consolidated headquarters which it adopted after 1982." 9. Id. at p. 4. This satisfied the Board. It was perceived that - it would be too great an infringement of the employer's right to force it "to maintain the fourteen headquarters which existed prior to 1982 and... change those headquarters only when the ., change was equitable to the employee." Id. at p. 9. - Subject to the need to protect the reliance interest of established employees, the Ministry was free to implement its consolidated scheme. We agree. Neither of the grievors in the present case falls within the protected category of employees whose reliance upon the pre-existing headquarters scheme was compromised by the 1982 consolidation. They were surplus employees who were forced by reason of lack of work within their regions to seek to fill certain vacancies which existed in the Central Region. These vacancies were presented to the grievors as attached to certain designated headquarters in the,Ministry's consolidated scheme. There were no surprises. Once the grievors selected a job within the Central Region, they knew exactly where their headquarters would be. Both grievors also were offered financial assistance in the form of moving allowances, etc. For his own reasons, Mr. Seebach chose not to move. Similarly, Mr. Tupper chose to move to a location which was a considerable distance from his designated headquarters. It was not by an action of the Ministry, 10. but by his own action, that Mr. Tupper ended up living so far away from what he knew was his new designated headquarters, the Ministry's Patrol Yard at Highways 401 and 10. Like Mr. Seebach, he had it within his power to move to a location closer to his The evidence tended to indicate that the employees with whom the grievors sought to compare themselves,fell within the protected category of "grandfathered" field staff. Those who were reassigned to the Morriston Patrol Yard undoubtedly came within the terms of the Brent award, and in this respect it should be stated that the Morriston Patrol Yard is regarded by the Ministry solely as a headquarters for that special purpose. Mr. Tupper indicated that the two employees that he knew were assigned.to Palermo had been assigned to that location for a long time. There was, however, no indication whether Palermo remained a'designated headquarters under the Ministry's con- solidated scheme. ,in On all of the evidence, it is concluded that the grievances must be dismissed. The grievors did not fall with the protected group of employees whose reliance interest was compromised by the consolidated scheme which the Ministry in- stituted in 1982. The grievors were in a far better position. They knew in advance where their headquarters would be and were eligible to have their re-location expenses recmbursed in the event that they decided to move to within a reasonable distance 11. of their headquarters. DATED at London, Ontario, this 9th day of April 1987. III, I / , Roberts, Vice-Chairman A. G. Stapleton, Member