Loading...
HomeMy WebLinkAbout1986-2499.Policy.88-11-04EMPLOVtLSDEL4 COURONNE DE L’ONTMVO COMMISSION DE SE-ITLEMENT REGLEMENT DES GRIEFS 2499/86 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD Between: OLBEU (Policy Grievance) Grievor Before: The Crown in Plight of Ontario (Liquor Licence Board of Ontario) Employer J.W. Samuels Vice-Chairperson J. Solberg Member F. Collict Member For the Grievor: A.M. Heisey Counsel Kerzner, Papazian, MacDermid & Tremayne-Lloyd Barristers and Solicitors For the Employer: J. Zarudny Counsel Crown Law Office Civil Ministry of Attorney General Hearing: September 27, 1988 OECISION 2 There is a Letter of Agreement between the parties concerning “Kilometer Rates”. It reads: This will confirm the Boards’ agreement with respect to kilome- cer rxes and alternate transponation as follows: The following provisions shall be applicable to emplovecs rho we Iheir own auomobilcs in the conduct of Board b&inesr: The Boards agree to furnish alternaive means of tranrpor- laion to employees who are required to travel to conduct Boards’ business. should any of Ihe employees not wish ro use their priwcly-owned automobiles for such purposes. An employee authorized to use his car on approved Board busi- ness. include travelling to assigned duties away from his accus- tomed work localian, shall be paid kilometer allowance in ac- cordance with the following: (a) for the first four thousand (4,ooO) kilometers driven - ar the raleof ll.ScentrperkilometcrforrhepanlhereofinNonh- ernOntarioand Ilcenoper kilometer forthepan thermfin Southern Ontario; fb) for over four thousand (4.001) kilometers and up 10 welve thousand (12.ooO1 kilomccers driven-a the rate of 14.5 cents per kilomewr for the part thereof in Northern Omario and 14 cents per kilomew for rhe part thereof in Sputhern Ontario: CC) for over twelve thousand (12,CQl +) kilometers driven-at the rate of 12 cents per kilometer for the pan thereof in Northern Ontario and at the rate of I I .5 cents per kilomcter for the pan thereof in Southern Omario; Cd) the boundary between Nonhemand Southern Ontarioshall be- Heal? Lake IMunicipal) Road from Heal? Lake caster- Iylo its junction with Highway 612: 10 Highway 103; High- way 103 eaxcrly ID its junction with Highway 69: Highwa) 69 easrerly IO iu junction with Highway 118; Highway II8 through Braccbridgctoits junction with Highway I I: High- way I I northerly to iu junction with Hi&way 60 ar Hums- ville; Highway6Qeasterly to its junction with Highway62 at Killaloe Station: Highway 62 10 Pembroke, the above named Highways to be included in Southern Ontario: le) for the purpose of this section all kilometers outside of Ontario will be a! the rates for Southern Ontario. In August 1985, the Liquor Licence Board promulgated new policy statements concerning transportation for employees. Concerning transportation generally, the Board said: The Board will determine the most cost-efficient means of providing transportation to employees who must travel in the conduct of Board business. / .:: 3 And then, concerning assignment of Board vehicles, the Board said: Employees who are required to travel in the discharge of their duties may be assigned a Board vehicle. Employees who wish to use their own vehicles in the conduct of Board business may do so, only with the prior authorization of the Board. The Union’s grievance makes two claims concerning the Letter of Agreement and its impact on these new policies of the Board. Firstly, we are asked to declare that, pursuant to the Letter, an employee is entitled to use his or her own vehicle for travel related ‘to Board business, if the employee so chooses. Therefore, the Board may not direct an employee to use a Board vehicle. Secondly, the Union says that, at their negotiations, the parties agreed on the kilometer rates for use of personal vehicles, and these agreed rates have been paid by the Employer for use of personal vehicles, but the rates agreed are not recorded in the Letter, and the Union asks us now to rectify the Letter to reflect the agreed rates. The Employer raised three preliminary objections with which we will deal in this award (a) Assuming that the Letter of Agreement is part of the collective agreement, the Letter deals with a matter which is within the exclusive jurisdiction of management under the Crown Employees Collective Bargaining Act and cannot be implemented. (b) Even if the Letter can be the subject of a grievance under the collective agreement, the Union cannot bring this grievance. (c) Even if the Letter can be the subject of a grievance under the collective agreement and the Union can bring this grievance, the grievance is out of time. If these preliminary objections are dismissed, at a later time this Board can go on to ~determine three further issues raised by the parties---Is the -’ 4 Letter of Agreement a part of the collective agreement? If it is a part of the collective agreement, do the employees have the rights which the Union claims? And, if the Letter does give the rights claimed, is the Union estopped from making this claim? Let us turn to the three preliminary objections. t is Dart of the collective &?reement. is the Letter of AQreement Drohibited bv the Crown levees Collective Ba . . rPm Section 18(l) of the Act provides: is .-(I) Every coilective agreement shah be deemed to provide that it is the exclusive function of the employer to manage, which function, without limiting the generality of the foregoing, includes the right to determine. (a) empioyment. appointment, complement, organi- sation. assignment, discipline, dismissal, suspension, work methods and procedures, kinds and locations of equipment and classification of positions; and (b) merit system, training and development. appraisal and superannuation, the governing principles of which are subject to review by the employer with the bargaining agent, and such matters will not be the subject of collective bargain- ing nor come within the jurisdiction of a board. This provision does three things. Firstly, it deems that every collective agreement will provide that it is the exclusive function of the Employer to manage, and it sets out some of the matters which the Employer has the right to determine. Secondly, it prohibits collective bargaining over these matters. Thirdly, it denies jurisdiction to a “board” to deal with these matters. Pursuant to Article l(l)(c), a “board” is “a .board of arbitration established under this Act”, which means an interest board established pursuant to sections 10-12. Thus, the collective agreement cannot impinge upon the exclusive function of the Employer to manage. , ‘: 5 Section 7 of the Act provides for the Union’s right to bargain with the Employer on the “terms and conditions of employment”. It says: 7. Upon being granted representation rights, the employee organization is authorized to bargain with the employer on terms and conditions of employment, except as to matters that are exclusively the function of the employer under subsection 18 (I), and. without limiting the generality of the foregoing, including rates of remuneration, hours of work, overtime and other premium allowance for work performed, the mileage rate payable to an employee for miles travelled when he is required to use his own automobile on the employer’s business, benefits pertaining to time not worked by employees including paid holidays, paid vaca- tions, group life insurance, health insurance and long-term income protection insurance, promotions, demotions, transfers, lay-offs or reappointments of employees, the procedures applicable to the processing of grievances, the classification and. job evaluation system, and the conditions applicable to leaves of absence for other than any elective public office or political activities or training and development. The issue is whether or not the use of a vehicle and the rates to be paid for use of anemployee’s personal vehicle are matters of “management” (that is, within the exclusive jurisdiction of management, pursuant to Article 18(l)) or matters of “terms and conditions of employment” (which can be bargained, pursuant to Article 7). In our view, the answer is not straight-forward. In some cases, these matters would be simply “terms and conditions of employment”. For example, suppose that the Employer is indifferent in operational terms to whether the employee uses a Ministry vehicle or a personal vehicle, and the parties have agreed that the compensation package for the employees would consist of an hourly rate, plus a reasonable mileage rate for use of personal vehicles. For various reasons, this compensation package may be more desirable to the employees than simply receiving an hourly rate. In these circumstances, we would say that an agreement between the parties covering the use of personal vehicles falls within Section 7 of the Act, and is not precluded by Section 18(l). 6 Generally, all matter of dollars and cents which relate to compensation for employees can be bargained between the parties. These matters are “terms and conditions of employment”. The Employer may, if it wishes, agree to give employees the right to use their own vehicles and to pay a mileage rate for this use. This would be one of the matters concerning compensation for the employees. Of course, the Employer may decide not to give these rights under the collective agreement. But these are matters over which the Employer can bargain, and these rights if given will be part of, the “terms and conditions of employment” as envisaged by Section 7 of the Act. On the other hand, there may be a legitimate “management” concern related to the use of vehicles (in the sense meant in Section 18(l)). For example, if the Employer wants an employee to travel in a vehicle marked specially as a Ministry vehicle (with special colors and markings), because it is necessary to maintain the Ministry’s image, or if the Employer wants an employee to use a Ministry vehicle because of concerns about insurance and public liability, this would be a matter of “management” and would be within the exclusive jurisdiction of the Employer. In these circumstances, the use of vehicles would fall within Section 18(l) and the Employer could not tie its hands by an agreement with the Union which interfered with the Employer’s power to determine this use of vehicles. With respect to an agreement concerning mileage rates to be paid for authorized use of personal vehicles, this would always be a matter of “terms and conditions of employment” under Section 7 of the Act. Once the Employer has made the decision to authorize the use of personal vehicles, the compensation to be paid to employees for this use is a matter of “terms and conditions of employment”. In his argument, counsel for the Employer did not raise any “management” concern with respect to the use of vehicles, in the sense meant in Article 18(l). He spoke of the cost to management if employees / 6: 7 were allowed to use their own vehicles. And the Board policies which are the targets of this, grievance refer to cost-efficiency. Cost in this sense is a matter of compensation to the employees and is encompassed within the words “terms and conditions of employment” under Section 7 of the Act. We are not saying that the Employer is not concerned by the cost of its operation. But rather that this cost is not a matter which is within the exclusive jurisdiction of management. Perhaps the most significant cost to the Employer is wages, but the Employer does not have the exclusive jurisdiction to set wages. The Employer cannot unilaterally reduce agreed wages in the interest of cost-efficiency. In like vein, if employees are given the right to use their own vehicles and are promised a particular mileage rate for this use (and we have not determined that this has in fact been done here, but we are assuming it has been done for the sake of argument), the Employer cannot unilaterally change these rights m-the interest of cost- efficiency. The Union has the right to bargain over wages, benefits, and other forms of compensation to employees, because these are “terms and conditions of employment”. In our view, in this case, if the Letter of Agreement is a part of the collective agreement between the parties, it deals with matters which could be negotiated by the parties and it would be valid. It would fall within the purview of Section 7 of the Act and would not be prohibited by Section 18. Article 27.6 of the collective agreement provides: The Union shah have the right to lodge a grievance based on a difference arising directly with the Boards. However, such a grievance shall not include any matter upon which an employee is personally entitled to grieve. 8 The Employer argues that, in this case, an employee could grieve if he or she was denied the right to use a personal vehicle, and therefore the Union cannot file this grievance. But the Union is not grieving a particular instance. The Union is grieving the Employer’s policies. This is a matter of general application. This is a difference arising directly with the Board. An individual employee can only grieve a matter in which he or she has a direct interest---see Fox, GSB 572/82 (Draper), at page 5. The distinction between a Union grievance and an individual grievance can be illustrated by an example. Suppose that the collective agreement provides that an employee may be granted compassionate leave, and an application for such leave is denied. If the reason for the denial is based on the individual circumstances of the employee, the employee alone would have the right to grieve. However, if the Employer bases the denial on a general policy concerning compassionate leave, then the Union too has an interest. The individual employee could grieve the denial of leave in his own particular circumstances, and the Union could grieve the existence of the policy itself. The Union’s grievance would not claim compensation for the individual employee, but would request that the policy be changed or removed. Similarly, in our case, the Union is grieving the existence of the Boards policies concerning the use of vehicles. This is a proper subject for a Union grievance. * 9 out of tm& Article 27.6 goes on to provide that the Union’s grievance must be presented in writing to the Board within 14 days of the circumstance giving rise to the grievance. The Board’s policies were promulgated in August 1985, and the Union grieved in February 1987. The Employer says that the Union is out of time. In our view, this is a “continuing” grievance. Each day that the policy is in force is another “circumstance” giving rise to the grievance. This grievance is not concerned with a discrete act or set of facts, but rather is concerned with an on-going problem. If the collective agreement does give employees the right to use their own vehicles if they so choose (and we emphasize that we have not made such a determination, but we are assuming it for the purposes of argument at this stage), then the Board would breach the agreement each and every day that it had a policy which contravened this right. If the Union permits the Employer to act upon a policy for an extended period, this acquiescence may develop into a representation to the Employer that the Union will not insist on its strict rights under the collective agreement, and therefore the Union’s delay could lead to an estoppel if a grievance is ultimately filed. In this case, the Union’s grievance is not out of time. The Board’s policies were in effect within the 1Cday period before the grievance was filed (indeed, the policies are still in effect). It is still open to the Employer to bring evidence and make argument which shows that the Union represented that it would not insist on its strict rights and therefore should be estopped from prosecuting this grievance. This is one of the matters we reserved for another day, if there is one. For these reasons, we dismiss all three preliminary objections. At the close of our hearing into these objections, we made two comments to the parties which may assist them now to settle this grievance. Firstly, we pointed out that, though we had not yet heard argument concerning the interpretation of the Letter of Agreement or even whether the Letter was part of the collective agreement, it appeared to us that, on its face, the Letter of Agreement did not give employees a right to use their personal 10 vehicles if they chose to do so. Rather, on its face, this Letter does two things---it obligates the Board to provide transportation for an employee who doesn’t want to use his or her own vehicle; and, it sets out the mileage rates to be paid when an employee is authorized to use his or her own car. Secondly, we mentioned that, if there had been an agreement between the parties concerning the mileage rates for use of personal vehicles, and if the Letter of Agreement was part of the collective agreement, we would order that the Letter be rectified to reflect the parties’ agreement. We remain seized, and we will reconvene if we are requested to do so. Done at London, &nario; this 4th day of November 11988. 5Iikd-Q #fflU&,ViCe-Chairperson J. Solberg, Member J g g &%z Addendum F. Collict, Member A .ttache( ADDENDUM This member of the panel is in agreement that all three pre- liminary objections raised by counsel for the Employer should be dismissed. However, he cannot concur with the position taken with reference to Section 18(l) of the Crown Employees Collective Bargaining Act as related to the use of vehicles for Ministry affairs. The majority of the Board and this member agree that, as set out at the bottom of page 4 of the award II . . . . . . . . . the collective agreement cannot impinge upon the exclusive right of the Employer to manage." (conclusion drawn from Section 18(l) of CECBA) However, this member does not concur with the position set out in the award that if the parties have agreed to some form of use of personal and/or Ministry vehicles, that this matter is not precluded by Section 18(l) of CECBA. The stated ra- tionale for this position is that such an agreement can be provided for within the words "terms and conditions of em- ployment" under Section 7 of CECBA.' However, Section 1 provides for the Union to bargain with the Employer on terms and conditions of employment, ” . . . . . . . . except as to matters that are exclusively the function of the employer under subsection 18(l). . . . . . . .m (underscoring added) Section 18(l) of CECBA states, in part, that it is the ex- clusive function of the Employer to manage - "(a) . . . . . . ..work methods and procedurees . . . . . . . . . kinds . . . . . . . . . of equipment . . . . . . . . and such matters will not be the subject of collective bargaining nor come within the jurisdiction of a board." The Employer, therefore, has the right to determine the "method or procedure" through which an employee shall travel on government business, whether by bus, aircraft, personal car, subway, foot, etc.; and Section 18(l) provides the statutory basis for this position. In the private sector the parties may very well agree to make the issue of choice of travel means a negotiable matter. Nevertheless, in the public sector in Ontario, the statute makes it quite clear that this matter shall .remain the ex- clusive function of the Employer. In final argument, counsel for the Union advanced the position that Section 18(l) of CECBA only states that man- agement has the right to manage; but that Section 7 of CECBA includes the clause "...... without limiting the generality of the foregoing . . . . . " (see p. 5 of award). Counsel con- cludes from this qualification that the right to use a car is a matter that can be negotiated. He reaches this con- clusion based on the position that the negotiation of mile- age rate is provided for in Section 7 and that the use of personal car by an employee has financial consequences for the Employer. Accordingly, the right to use one's personal car is a negotiable item. If one followed this line of argument to its logical con- clusion there would be few functions exclusive to manage- ment as currently provided for under Section 18(l) of CECEA; for practically all of the matters exclusively re- 3. served to the Employer have financial consequences. This member cannot accept this position. One further matter of concern to this member is the follow- ing statement which is at the bottom of page 6 of the award: II . . . . . . . . counsel for the Employer did not raise any 'management' concern with respect to the use of vehicles, in the sense meant in Article 18(l) 11 . . . . . . . . The notes of this member taken during the hearing of this case indicate that counsel for the Employer did advance the position that the right of an employee to use his own vehicle is not a negotiable matter in accordance with the - provisions of Section 18(l) of CECBA. Particularly in reply argument counsel for the Employer argued that a car is not just a matter of dollars as the counsel for the Union had argued in final argument. Counsel for the Em- ployer put forth the position that the Employer must have the right to determine the mode of transportation to engage in government business: that the making of such a decision cannot be left to the discretion of the employee; that this type of decision is a management right exclusive to the function of management as provided for under Section 18(l) of CECBA; and that it is not negotiable. F. T. Collict, Member.