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Home My WebLink About1986-0992.Pileggi.88-07-05180 DUNOAS STREET WEST. TORONTO, ONTARIO. M5G 128 - SUITE 2100 Before: IN THE MATTER OB h?i ARBITRATION Under THE CROti EMPLOYESS,COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD OPSEU (Pileggi) -and- Grievor The Crown in the-Right of Ontario (Min. of Transportation and Communicatio4 Employer For the Grievor: For the Emnlover: .7. Forbes-Roberts Vice-Chairman F. Taylor Member D.C. Montrose Member H. Sharpe Counsel Gowling and Henderson Barristers and SCliCitOrS R.C. Fillon Counsel Winkler, Filion, Wakely Barristers and Solicitors Hearinq: November 26, 1907 DECISION This grievance in-valves a claim for travel time allowance. It is unus-ual to the extent that the employee was actually credited with overtime for the periods he spent travelling. tie seeks the lower level of remuneration of travel time allowance, which is paid at straight time as opposed to time and one-half. 'rhe grievor, Mr. Joseph Tileggi, is a Senior COAStTUCtiOA Technician with the Ministry of Transportation and Communication ("the Employer"). His normal headquarters is Toronto, and he in fact lives in Mississauga. In approximately March of 1986, the grievor heard of a .job opening in the ?ort Eope area where Highway 135 was being widened. The job "site" was known as Kirby. He was asked if he would accept an assignment to the Kirby job. This site was approximately 110 kilometers ,from the grievor's home, a drive of one and one-half (1 1/'2) hours duration or three (3) hours round trip. In an assignment of this nature, there are two gossibilities. he is to remain at the job location during the week and stay in a hotel. The second is to commute daily. cost efficiency is the determining factor. Following the recjuest regarding the Kirby assignment, the grievor did some "loose n'mber crunching" and determined two (2) things . One, that it would be less expensive for him to commute daily, and two, that he could show a profit on the transaction. This second conclusion was premised on the assumption that he would be paid a travel allowance at straigiit time. The grievor travelled in his own vehicle. 3ecause of the monetary benefit, the grievor accepted the assignment. He duly submitted three (3) Weekly Cost Comparison forms verifying that it was less expensive for him to commute than it was for him to stay on site. Xt is clear on these forms that he anticipated being paid a travel'allowance at his straight hourly rate of pay. This in fact occurred until the week commencing August 1, i386. In July of 5386, the Employer issued.a Ministry Directive, fan-dly known as "B 113" dealing with the distinction between travel t.ime and overtime. It became effective Aiigust 1, ~19k?E. The Employer, no doubt under protest, had apparently been reading the decisions of the Grievance Settlement Board. 3 119, basically headnoted the decision of Arbitrator Samuels in re: Clements, G.S.B. 370/64. Wil Before dealing with the relevant portions of 3 119, we list several salient facts. 1. 2. 3. 1 ‘f. As earlier mentioned, the grievor drove his own vehicle. This was his choice. :He testi- fied theat based on personal experience, he did not trust the Zmployer's vehicles. The grievor transported neither other employees nor Ministry ecjuipment in his -vehicle. In a typical shift, the grievor drove to four (4) to ten (10) discreet work locations at the Sighway 135 project. Not until October 30, i566, did the grievor formally request that the Employer provide a vehicle for on site use. 3 The relevant portions of B : 19 are as follows: (a) (b) . . . Cd) (e) if an employee is assigned to operate a vehicle outside his regular working period: (1) for the Purpose of getting the vehicle to a site where it is required, or (ii) for the purpose of transporting field employees, or (iii) for the Durnose of transporting such field equipment as -picks and augers -transit -highway warning signs he is considered to be carrying out work on be- half of the Ministry, and the overtime rate applies. If an employee, with 'Ministry authorization, drives a vehicle outside of working hours for the purpose of travelling to or from his work location, he is essentially free of job dirty responsibility (except as otherwise provided in this directive), and the basic hourly rate applies. If an employee usually travels to -various work locations during his regillar working period (shift), travel is an inherent part of his duties and the overtime rate applies to such travel out- side the regular working period. If any employee usually works at particular loca- tions for f-c:: shifts, travel is not an Inherent part of his job duties, and the basic hourly rate applies. (no emphasis added; We note that we accept B 119 as a fair distillation of Clement* (supra) Upon learning of 9 li9, the grievor's initial impression was that he was covered by saragraph (b). rlur i ng h i * travelling t i m e , h e was )(... essentially free of job responsibility (extent as otherwise orovided in this directive) and the basic hourly rate app ,lies" (emphasis added). Thus, his oersonal circumstances would not have been affected. Fie then became concerned that the Employer might place him under paragraph (d), and he would thus be reimbursed at overtime for his travel time. This indeed provided to be true. The source of the grievor is concern was that overtime is paid out in lieu time, and travel time (albeit at straight time) is paid out in cash. Union counsel presented two arguments. First, the grievor accepted the Xirby assignment on the specific understanding that he would receive a cash travel time allowance. To switch horses in mid-s,tream is to deny him the benefit of his bargain. Counsel argued estoppel by conduct and relied upon Candian National Railway Co. et al. v. Beattvs a. (1981) 34, O.R. Znd, 385. We reject this argument. Employer counsel correctly pointed out that for estoppel by conduct or promissory estoppe; to exist, there must be a representation made which prodiices a detrimental reliance. While vis a vis, the grievor's personal plans the cash payment at straight time rates may have been preferable. Withinthe context of collective bargaining. AL?.Y form of remuneration at time and one-half (1 11'2) is a superior benefit. The bargain from which the grievor is entitled to benefit is that provided by the collective agreement. Xe is not free to cut "side deals" which are more tailored to his persona: circumstances. -2. - .‘j 5 In the alternative, Snion counsel argued that the grievor was covered by paragraph (e) of 3~ i19. The Kirby project was his "particular location" at which he worked for "full shifts." Thus travel was not an "inherent part" of his job. Neither can we accept this argument. Given the nature of the Road Construction Industry, the project name delineates an area, not a "job site* in the conventional sense. The plain fact remains that if the grievor did not travel during his shift, he could not do his job. We therefore find that travel is an inherent part of the grievor's job, and he falls within the parameters of paragraph (d) of B 119. The grievance is hereby dismissed. Dated a: Toronto t~his 5th day of July ( 1988. lPp-+g+ -.,... / 0.;. i?orbes-Roberts, Vice-Chairman D.C. Montrose, Xember