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HomeMy WebLinkAbout1986-2508.Galloway.88-03-172508186 IN THE NATTER OF AN ARBITRATION THE CROWN EMPLOYEES COLLECTIVE BARGAINING.-ACT Before Between: Be~fore: For the Grievor: For the Employer: THE GRIEVANCE SETLENENT BOARD OPSEU (Steve Galloway) and The Crown in Right of Ontario (Nlnistry of Transportation) M.V. Wafters - Vice-Chairman J.D. McManus - Member H. Roberts - Member H. Sharpe Counsel Gowling & Henderson Barristers 6 Solicitors K.B. Cribbie Staff Relations Officer Human Resources Branch Ministry of Transportation Grievor Employer January 14. 1988 , DECISION This proceeding arises from the grievance of Mr. Steven Galloway dated January 19, 1987, the material part of which reads as follows: "STATEMENT OF GRIEVANCE - I grieve.that the Ministry has inequitably redesignated my headquarters contrary.to the collective agreement.' SETTLEMENT DESIRED - That my headquarters be., redesignated to one o'f the following places which are listed in order of preference: 1) My home in Grafton 2) Grafton Patrol Yard 31 Port Hope Patrol Yard. n (Exhibit #2) The grievor, at all material times, was employed as a Senior Survey Technician with the Ministry of Transportation and Communications. . This is a position which can entail significant travel on the part~of the employee as they may be called upon to travel throughout' the Central Region to attend to their work. It is clear that employees within this classification do not generally have a consistent work site at which they attend or to which they report. More often than not, it appears that their work~~is performed in the field. For this reason, they have ~.' .4;. -. historically received a designated headquarters. T!.g%~Process of designation has been contentious and has resulted in numerous issues being brought before this Board. A history of the dispute is well documented in the Wilcox award; G.S.B. 761/84 (Roberts). We have also reviewed the decision in Peebles et. al., G.S.B. 1257/84; 1258/84: 1259/84; 1260/84; 1271/84 (Gorsky), to which we were referred by counsel for the Union. The continuation of the -2- problem discussed therein, and the parties' inability to reach a consensus on the principles to guide the designation of headquarters, led directly to the inclusion of present Article 38 into the collective agreement. We were informed that this article, which is reproduced in its entirety below, was itself the product of an arbitrated award of Professor Swan. The application of the policy vis 'a vis designation has resulted in a lack of uniformity with respect to the class of employee hereunder consideration. There are thirty-six (36) such employees. Prior to this grievance, twenty-two (22) employees of this group had their home designated as their headquarters, with the balance having a headquarters located at-the central Dufferin Street office. It is unnecessary, for purposes of this award, to review all of the background leading to this situation. It is apparent, however, that some of the employees in the foriner category live in the eastern part of the region. The Employer has been reluctant to change their headquarters in that many of these employees have resided there for a considerable period of time. Prior to December l986, the-grievor lived with his family in Whitby, Ontario. During this period of residency, his headquarters was designated as Whitby notwithstanding that there was no M.T.C. 'patrol yard at that location. When living there, it was not unusual for the grievor to travel extensively in conjunction with his employment. He testified that he had worked in Stoney Creek, West Toronto, Beaverton, Brooklin, Lindsay, and -3- Newmarket. It seems from~the evidence that the grievor could reasonably expect to be assigned work throughout the region, although understandably, the heaviest concentration of projects centred in Metropolitan Toronto and its environs. When his headquarters was deemed to be at his home, the grievor's mileage, travel time, and 'other related benefits were calculated from his residence. He was, therefore, not called upon to contribute personally to the cost of travelling to the work site. If, for example, he was required to work in Stoney Creek, the grievor would receive the appropriate mileage and travel time calculated from Whitby. There did exist, however, a financial disincentive for employees, such as the grievor, to commute daily if they were stationed a long way from their home or headquarters. In such vse, they would only receive the lessor of a "stay-over ., allowance" or mileage. In mid-November, 1986 the grievor gave notice to the Employer of his intention to move to the Town of Grafton in the eastern section of the region. A telephone conversation subsequently occurred between himself and Mr. Zen Byblow, Head-Surveys and Plans, on November 25, 1986 with respect to such move and the need to redesignate headquarters in accordance with Article 38. While the grievor may have indicated a preference that his new home be so designated, it is clear that a decision was not made at that time as the grievor indicated a desire to consult with his union steward. Because of his work schedule, the actual relocation, and the onset of Christmas, the grievor -4- did not get back in contact with Mr. Byblow as had been agreed. It is equally clear that Mr. Byblow did not attempt to reach the grievor on the subject. Rather, on the basis of lack of contact I with the grievor, he elected to send the letter dated December 17, 1986 which ultimately led to the filing of the grievance presently before this Board. This letter designated the : .._, i _ grievor's headquarters to Ajax, Ontario. Subsequent to the date .-::; of~the letter, a meeting was held in Mr. Byblow's office whereat the grievor and his union steward objected to the Ajax designation. They also suggested sites such as Newcastle and Newtonville as viable alternatives to Ajax. These suggestions were not accepted by the Rmploye~r-r ., -' While there was.considerable discussion at the hearing as to the adequacy of the consultationwhich occurred between the grievor and Mr. Byblow with respect to the redesignation, counsel for the Union stated thatshe was not requesting the Board to remit the matter back to the parties so that a more comprehensive consultation could be held. The Union preferred that we assess the equitabil ity of the designation. We do not take issue with this request, as in our estimation the real dispute between the parties is-whether the location was equitable in the context of Article 38 of the collective agreement. The letter of Mr. Byblow referred-to above reads as follows: " To: Mr. S. Galloway Date: 86 12 17 Technician Surveys -5- Headquarter Redesiqnation Following receipt of your notification of your change of residence, your supervisor provided you with a change of address form to be completed and returned, and also requested that you telephone me regarding a change in headquarters as a result of your residence change. In our telephone conversation on Nov. 25/86, I informed you that as a result of your residence change, your headquarterswould be redesignated and that I was consulting with you regarding your interests and preferences on a new headquarter location. You indicated that you would consider and advise me. Since you have not responded, this will serve as notice in accordance with Article 38 of the Collective Agreement, that your new headquarters will be designated at the M.T.C. Patrol Yard at Highway 401 and Brock Road in Ajax. Also in accordance with Article 38, your new headquarter designation is based on the following considerations - that your former home at Whitby is no longer a valid headquarter designation. - that your new home at Grafton is too distant from the central work place and projected work locations in. the surrounding Toronto area.. - that a new headquarters at the,Central Office at 3501 Dufferin St. Downsview is the most convenient location for the efficient conduct of the Ministry's business for the majority of the time. - that the new headquarter location is equitable to you and the Ministry. Therefore, notwithstanding that 3501 Dufferin St., Downsview is still the Ministry's desired location for your new headquarters, in the interest of equitability to you,~ the M.T.C. facility at Highway 401 and Brock Rd. in Ajax being nearest to your former headquarters, will be your new headquarters effective March 23/8Z. Please complete and return the Change of'Address Form .(another copy attached) at your earliest convenience. I : -6- A new Headquarter Designation form will be prepared and issued upon receipt of your address information. Z.J. Byblow Head, Surveys and Plans Central Region ZJB:ms 3501 Dufferin Street as to the reasons At the hearing, Mr. Byblow gave evidence for the decision taken. His testimony d id not depart '"(Exhibit #5) materially from the considerations listed in the above-cited correspondence. ., Given the significance of Article 38 of the collective agreement to the resolution of this matter, we reproduce it in full: ARTICLE 38 - HEADQUARTERS 38.1~ This article applies to employees who do not attend at or work at or work from any permanent ministry facility in the course of their duties, but for whom a permanent ministry facility or other place is .:: designated as an employee's "headquarters" for the -purposes of the provisions of this collective agreements-<&d of various allowances which require a headquarters to be specified. 38.2 A ministry may designate a .headquarters when an employee is initially appointed to a position, or when a position is filled by an employee in .' accordance with Article 4, Article 5, or Article 24 of this collective agreement. Al.1 job postings, notices and offers in relation to positions covered by this article shall include the designated headquarters for the position. This designation shall be the location considered by the ministry to be the most convenient for the efficient conduct of the ministry's business, having regard to the ministry~'s projection of the location of the employee's work assignments for a period of two years. It is not a requirement that the designated headquarters be a facility whose functions are related to the work to be performed ,by the employee, '.'. -7- and the employee's residence may also be designated as his or her headquarters. The Employer will supply to the Union, by December 30 of each year, a current list of headquarters designations for employees covered by this article. 38.3 By mutual agreement in writing between the ministry and an employee, a new headquarters may be designated for an employee at any time., and by mutual agreement in writing between the ministry and the employee, a temporary or seasonal headquarters may be designated for the stated period, following which the previously designated headquarters will be reinstated unless it has been changed in accordance with this article. 38.4 A ministry may change the headquarters of an employee covered by this article, if: (a) the employee's residence has been designated as his or her headquarters and he or she subsequently initiates a change - . . or reslaence; or (b) a ministry facility which has been designated as the employee's headquarters ceases to operate as a ministry facility: or (c) the employee is assigned to a work location or work locations at least forty (40) kms. by road from his or her existing headquarters, and it is anticipated that the employee will continue to work in the area of the new work location or work locations for at.least two (2) years. 38.5 Where a ministry exercises its right to change the headquarters of an employee otherwise than by mutual agreement with the employee, the following procedure will apply: (a) The ministry shall f.irst 'give notice to the employee of its intent, and shall~~consult with the employee to determine the employee's interests and the employee's preferences as to the pew headquarters location. (b) The ministry shall determine the new head- . quarters location in a way which 1s equitable to both the employee and the ministry. -8- (c) The employee shall be given notice of the change in des i headquarters. three (3) months gnation of the 38.6. Where it is necessary-to identify which one or more of a group of employees is to be assigned to a new headquarters, the employees to be reassigned shall be identified by considering the qualifications, availability, and current location (home, closest facility and work location). Where qualifications, availability and location are relatively equal, length of continuous service shall be used to identify the employee to be reassigned. 38.7 Employees who relocate their residence because of a change in headquarters, other than a temporary or seasonal change, in accordance with this article, shall be deemed to have been relocated for the purposes of the Employer's policy on relocation expenses. There is no dispute that the fact situation presented to the Board falls within the parameters of Article 38. The grievor was clearly one of a class of employees "who do not attend at, or -..a, .i.@ at, or work from any permanent facility in the course of their duties". Given the ~nature of his position, there was therefore a need to designate a headquarters for purposes of applying -the allowance provisions of the collective agreement. It is similarly apparent that the Employer had authority under Article 38.4 (a) to change the headquarters as a consequence of the grievor's change in residence from Whitby to Grafton. As indicated above, the former loca,tion had previously been designated as his headquarters., In exercising the aforesaid right, the Employer was obligated to comply with the procedure established in Article 38.5. In consideration of the position -9- taken by the Union, we are prepared to assume that .the appropriate notice was given and that the necessary degree of consultation occurred. We-are left with the threshold question as to whether the Ministry determined the new headquarters in a fash,ion that was "equitable to both the employee and the ministry". The Board was informed that this was indeed the first instance in which a redesignation of headquarters had been effected because of a relocation of residence. The Union was consequently, and~understandably, eager to have some interpretation as to the effect of Article 38.5 (b). '. There was much discussion at the hearing as to the artificiality of the concept of headquarters. Such is to be exfiected, in that a degree of artificiality can be said to exist whenever the headquarters is located at other than a permanent ministry facility at which the employee works or to which they report. Clearly the designation of either a residence or a facility with which there is no solid working relationship may be depicted as being artificial. Notwithstanding this potential for artificiality, Article 38, in clear language, permits such designations to be made. Specifically, we note that Article 38.2 states that "It is not a requirement that the designated headquarters be a facility whose functions are related to the work to be performed by the employee, and the employee's I residence may also be designated as his or her headquarters". We have not been persuaded, therefore, that the existence of artificiality is an influential factor in issues of this nature. -lO- It is equally clear to the Board that there is no contractual right in the employee to have headquarters designated at their residence either initially under Article 38.2, or subsequently upon a relocation under Article 38.4. With respect to the former, the designation "shall be the location considered by the ministry to be the most convenient. for the efficient conduct of the ministry's business, having regard to the ministry's projection of the location of the employee's work assignments for a period of two years". With respect to the latter, the new headquarters must be determined "in a way which is equitable to both the employee and the ministry". For this Board to restrict redesignations to the residence would be tantamount to amending the provisions of the collective agreement. This we are prohibited from doing by virtue of Article 27.16. As stated earlier in this award, this Board must determine .' whether the redesignation of the headquarters from Whitby to Ajax was equitable in view of the respective interests of the parties. Not surprisingly, the Employer and the Union differed in their _ assessments on the question of equitability. Before proceeding to briefly canvass their positions, it may.be helpful for us to . set out herein certain relevant distances: (i) Whitby - Grafton 77 kms. (ii) Ajax - Grafton - 87 kms-. (iii) Ajax'- Whitby - 10 kms. '~(ivj Dufferin Street Office - Whitby - 46.2 kms. , .a -.- (v)'~ Dufferin Street Office - Ajax - 36.6 kms. (vi) Dufferin Street Office - Grafton - 123 kms. . -ll- It was the submission of the Union that the redesignation was inequitable to the grievor. It was noted in this regard that whenever the grievor was called upon to work west of Ajax, he would have to. personally assume the mileage cost, and travel time, between Grafton and Ajax and return. If he was commuting on a daily basis, this would total one hundred and seventy-four ('174) kilometres per day. Further;~ the Union ~suggested that the grievor might be compelled to commute in such instance, as .., the mileage as calculated from Ajax could be less than the overnight allowance, in which event he would either have to make up the difference and subsidize the overnight expense, or .travel daily between Grafton and the site. In the latter situation;the grievor would not receive mileage or travel time between his home and Ajax. The grievor testified that having to so commute would entail considerable driving time which would take from the time he would otherwise wish to sp~end with his family. The Union also argued that the redesignation placed him in a~ less advantageous position than was the case when his headquarters was d,esignated as Whitby. Besides being responsible for the mileage between Grafton and Whitby, he would also now be responsible for mileage between Whitby and Ajax. This ten (10) kilometre distance was previously paid for b,y the Employer. Simply put, while the grievor had moved to the eas_tern part of the region, his headquarters had beqnlocated further to the west and closer -12- to the Dufferin Street Office. The Union considered such a turn of events as reflecting the interests of the employer. Its position essentially was that the Employer should assume a greater portion of the travel costs than would be the case with the Ajax designation. It was the Bmployer's submission that the redesignation was equitable in all of the circumstances for the reasons listed in ~,~ .+:; Mr. Byblow's letter of December 17, 1986. The Bmployer further argued that they should not be compelled to fully compensate the grievor in the form of mileage and travel time with respect to the extra travel necessitated by his move to Grafton. Counsel emphasised that this move to the eastern part of the region, which was of considerable distance from the heaviest concentration of projected work, was voluntary on the part of the' grievor. It was stated that it would be inequitable to the Employer's interests to require it to designate the new residence as the headquarters for to do so would shift all of the monetary burden to the Employer. The thrust of the argument was that the grievor should share in the increased travel cost and that the designation of Ajax accomplished this objective in a fair and equitable way. The Employer did not consider any of the' grievor's preferred locations as being equitable when viewed in the context of what site would be most-convenient for the conduct of the Ministry's>:present and future business. After reviewing all of the evidence~:and argument presented . at the hearing, it is the .judgment of this Board that the -13- redesignation to Ajax was not "equitable to both the employee and the ministry". Specifically, we consider the decision taken as being inequitable to the' grievor. We premise this conclusion on the fact that the designation in question required the grievor to assume the cost of travel between Ajax and Whitby in addition to that between Whitby and Grafton. awhile we agree with the submission of counsel for the Employer that they should not have to bear the entire cost emanating from the move, and that the employee should be required to contribute to same, we cannot find that it is equitable.@ redesignate in such a way that the grievor is responsible for the entire distance involved in the relocation. Indeed in this case, as noted, the consequence of redesignation led to the grievor being responsible for mileage previously assumed by the Employer, this being the distance between Whitby and Ajax. Put in its simplest terms, the grievor was in a worse position after the redesignation in respect of: travel west of Whitby. While the distance between Whitby and Ajax is not substantial, the mileage could accumulate gignificantly over~time especially if the work site were to the west of Toronto. Looking at the >facts and circumstances before USI we conclude that equity would have been better served in this case by a designation to a site somewhere between Whitby and Port ~.. Hope. We have not been persuaded that any of the,grievor's preferences would be equitable to the Employer. Our assessment is that such locations would place an excessive responsibility on ,the Employer in terms of payment for mileage and travel time. i ,. : -’ -14- It is apparent to this Board that issues,of this nature cannot be resolved with mathematical precision. Nor do we intend to suggest that the answer to the dispute.between these parties could be found by simply selecting a midpoint between the former headquarters and the present residence. Indeed, to adopt such an arbitrary approach could result in inequities to either the employee or the ministry. While evidence was presented on -., certain~ alternate sites in this instance, we do not consider that there is sufficient evidence before us to permit theBoard to decide on what would be an equitable headquarters taking into account the interests of both parties.. We therefore think it preferable to remit the matter back for .fur.ther discussion such that a headquarters can be selected that more equitably allocates the responsibility for travel costs. In summary, we construe Article 38 as requiring a sharing of that expense in the circumstances of this case. It is obvious that a redesignation to a headquarters east of Whitby will result in greater expense to the Employer, especially " if the grievor is assigned to work west of Toronto. We note in this regard that the Employer has a right to change a headquarters pursuant to Article 38.4 (cl if "the employee is assigned to a work location or work locations at least forty (401 kms. by road from his other existing headquarters, and it is anticipated that the employee will continue to work in the area of the new work location or work locations for at least two (2) years II. Such provision could have futu~re application'were the grievor to be given. that type of long term assignment. . :. : -15- As indicated earlier in this award, twenty one (21) other employees of' the class under consideration have their homes designated as their headquarters. Some of theses individuals live in the same general area as the grievor. While uniformity of treatment may be desirable, the individual facts of these cases may differ. For example, we were informed that Mr. Orr has lived at Bastings for a considerable period of time and that the Employer is hesitant to interfere with a long standing headquarters. We do not believe it appropriate to impose an obligation on the Employer to designate to the residence on the .grounds that twenty one (21) of thirty-six (36) employees have been so treated over time. It is apparent to us that many, if not all, of these designations occurred prior to the inclusion of Article 38 into~ the collective agreement. More significantly, should we do so, this Board would be ignoring the clear dictate of the collective agreement, that is, that the new headquarters 4-should be equitable to both parties. There is little to assure us ~that the imposition of such an ob,ligation would satisfy the contractual objective. Similarly, we are not inclined to order that the Employer provide the grievor with a ministry vehicle for travel as suggested by counsel for the Union. Such an order goes well beyond the relief claimed in the grievance. Additionally, such a step would not likely be cost effqctive in the long term. For all of the above reasons, the grievance is allowed to 1 -16- the extent that we find the designation of headquarters to Ajax to have been inequitable. The Board will retain jurisdiction should the parties fail to arrive at an equitable resolution of the headquarters issue. Similarly, we reserve the authority to deal with the question of compensation .should the grievor's work site change materially prior to the establishment of an equitable designation. DATED AT TOROXTO ONTARIO THIS 17th, DAY OF MARCH,. 1988. M.V; Watters - Vice Chairman ' J.D. ,$cManus - Member H. Roberts - Member