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HomeMy WebLinkAbout1987-1092.Howes.88-08-26ONTARlO EMPLOY&OELA CO”RONNE CRO~NEMPLOYEES DEL’ONTAARIO GRIEVANCE CQMMISSION DE SETTLEMENT REGLEMENT BOARD DES GRIEFS 1092/ 87 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before. THE GRIEVANCE SETTLEMENT BOARD ‘. Between: Before: OPSEU (Rot&t Howes) : and The Crown in Right of Ontario .(Ministry of Transportation) . M.V: Watters : Vice Chairman. J.D. McManus Member L. Turtle Member For the Grigvor: i’. Rothstein Counse 1 Gowling & Henderson Barristers and Solicitors * For the Employer: K. Cribbie Staff Relations Officer Human Resources Branch Ministry of Transportation Hearing: June 9,~ 1988 Grievor Employer . . DEAN II il The grievor in this proceeding is ; Senior Construction Technician with II the Ministry of Transportation. This position involves survey inspection, II quality assurance testing and the undertaking of various acts all related to I the construction of public highways vithib the Central Region of the Ministry. Generally, 1 ,~ the grievor is assigned to a p{oJect until its completion, foll.wing which he would ordinarily be ditected to another project. These assignments can be of some duration. II It yould be inaccurate. however, to consider the grievor as having a “fixed” iblace of work in that his stay at a particular site is always time-limited. I/ IFn the period April 6 to June 24, 1987, he was assigned to a project locate’; at Brock Road in Pickering, Ii during which time he was generally responsible for overseeing the construction being performed by private contractors. Jj During the course of this and other projects, Ii the grievor’s automobile was required to perform the job. Par the period of this placement, II the grievor’s headquarters was designated as Baldwin II which wss approximately seventy (70) kildmeters from the site. I! )I In the period April 6 to April 27.1 1987, the grievor was permitted to II travel to and from the job site on an “o&shift” basis, that is, as part of his regular work day. Ji As such, his travel time was covered by the straight II time rate paid for his normal hours of v&k. I! He did, however, receive additional compensation for the mileage and was entitled to claim for an afternoon meal. The grievor did not express any complaint for the compensation received in this initial period of the project. This grievance was filed as a’ result of the grievor’s claim that he was not compensated appropriately during a subsequent period on the. project, this being between April 27 and June 24, 1987. On or about the former date, the employer, for reasons which are addressed below, decided that it wanted the grievor to be on-site for eight hours each day rather than the six hours as was previously the case. This change necessitated that the grievor travel “off-shift’! with the travel to be compensated for as overtime. At or about this same time, the employer prepared a weekly cost comparison which was filed vith this board as Exhibit ‘4’. This document compared the cost of having the grievor stay on-s,ite with the cost of his commuting from and to the designated headquarters on a daily basis. The totals arrived at were as a result of the use of the mileage, overtime and meal allowance rates provided for in the collective agreement and through the use of an “average” rate for overnight accommodation as established by the’employer. A summary of the cost comparisons is as follows: Kilometer Rate 27.5 cents 22 cents 18 cents It i Cost of Remaining, Cost of Commuting Weekly Differential On-Site $404.70 $447.50 $42.80 $393.81 $408.45 $14.64 ~. $385.89 $380:05 ($5.84) s‘clear from these figures thatit uas of less expense to the Ministry to require the grievor,.to remain on-site while the first two kilometric rates were in effect. These were the.rates that would, more likely . . I. than not, be used in that the project peri’od being discussed ~89 close to the I I commencement of the fiscal year. i! ,I iI The above-mentioned cost compariaoti was discussed with the grievor. He II was informed that the Ministry would prefer that he stay on-site and was Ii advised that if he continued to commute his travel expenses (travel time, I! mileage, meals) could not exceed the calculated cost of staying on-site. iI Notwithstanding this information, the grievor decided to commute. For expense the kilometers were subsequently reduced so account purposes, that his total travel costs would amount that he vould have II received if he had remained on-site during the work week. This grievance arose because of the employer’s to pay for all of the travel It was argued occasioned by the decision to commute. The Union submitted had been previously authorized to recei.ve’overtime when in this regard. on the ‘Travelling and Living Authoriration Report’ which was filed with us as Exhibit ‘3’. which was effective as of April 6, 1987, contained the words: “Overtime 120 minutes per day (Outside of 8 hr. working day)“. it further stated: Mileage from H.Q. ~to Job Site Allowance. Reason for Overtime - Car Used on Job”. “authorization” entitled the grievor to receive this amount of travel !ime as overtime in the period Ii subsequent to April 27th. The grievor, iii his evidence, stated that he I/ discussed the cost comparison with his i?ediate supervisor, Mr. K. Gilchreat, II I’ II -3- iI I, !i ,. ,‘, ,., ,_., ,,.. ~. .,,_,. ~,,,._.~.~...__~ :... c = and that he was told that vhile he would continue to receive compensation for his travel, such would be limited to the amount shown on the comparison as the cost for staying on-site. i Mr. C. Watson, Construction Supervisor for the Central Region, testified that Exhibit ‘3’ was not intended to serve as, and did not constitute, authority to travel off shift on an overtime basis. Rather, its purpose was to identify the amount that would be paid if overtime was subsequently required. His evidence was that authqrity must be provided prior to the employee performing the overtime work in question, and that such was obtained pursuant to a process which went well beyond the mere signing of a document such as Exhibit ‘3’. After considering the conflicting positions, this board cannot find that Exhibit !3’ constitutes the necessary authority to travel off shift on an overtime \asis subsequent to April 27,‘1987. We are prepared to accept, and indeed were given no reason to doubt, the employer’s evidence as to the purpose for the form. In our estimation, the document did not preclude the employer from engaging,in the cost c&paris& exercise, of which more will be said shortly. It is apparent from the evidence that as of April 27th the ~grievor was aware that the employer required him to stay on the job for all of the eight hours of his regular shift and that he would only be compensated for -~ travel up to the total,cost of staying on-site. Even if he had originally thought otherwise, from this date on the giievor had no reason to believe that he was authorized to recover two hours of overtime per day. -4- Hr. Watson and Mr. Larry Brant, Maiager of Administrative Serv:ices-Central Region, gave evidence as,:to the Ministry policy and practice vis a vis the cost comparison process. Sbecifically the folloving documents were presented to the board: ii ’ il (i) (ii) (iii) (iv) (“1 Memo dated March 24, 1987 headed ‘J(ccommodation for Field Staff’ which established a regional averaie room rate of thirty-eight dollars ($38.00) for purposes of cjlculating the respective costs (Exhibit ‘5’); I Ministry Directive dated March 11,11987 on the subject of ‘Compensation Rates for Use of a.Pfrsonal Car and Travelling Expense Allowances’ (Exhibit ‘7’); Ministry Directive dated February 2, 1987 on the subject of ‘Accommodation for Field Staff’ (Eihibit ‘8’); I/ Ministry Directive dated July 17, 1986 on the subject of ‘Time Credits While Travelling’ (Exhibit 1’9’); and, lastly, Ministry policy relating to ‘Daily /and Weekend Coansuting’ (Exhibit ‘10’). The relevant provisions of this last exhieit reed as fallows: “3.06 Daily and Weekend Connnuting Ii (1) Daily Commuting (a) (b) (cl II This section shall apply to those employees who are required to work away from their headquarters for periods exceeding one day. Ii Travelling costs will be reidbursed on the basis of distance (km) and travel time in accordance with the Uinistry’s Travelling and Lidiog Expense Accounts regulations and the Working Conditions contract for those emp.loyees in the Bargaining Unit. Ii Wherever the cost to commute’(distance plus travel time) II exceeds the cost to maintain an employee at the job site he shall be required to remain at the site. I! *.F ,; Cd) (e) Managers shall review employee headquarters, establish car pooling, and endeavour to assign staff in a manner which will result in the least number of private cars in use on Ministry business and the minimum cost to the Ministry. This reviei+ shall be of a continuing nature. An employee., who has been required ~to live at the job site, may nevertheless elect to commute as a matter of personal choice. In this case, a claim made up of distanc~e travelled (at the appropriate rate), or travel time (vhere applicable), or a combination of both, may be considered, provided: (i) the overall cost to commute cannot under any circumstances, exceed the cost tb q ain&ain the employee at’the job site, and (ii .)~the employee will be available for work, during the same hours as those employees who remain on the job site unIess he is authorized,to travel duiing working hours, in which case no claim for travel time vi11 be entertained; (f) (d (iii) the Manager considers the employee’s decision to commute will not adversely affect the employee’s performance. When an employee elects to commute, rather than remain on the job site, local management must document the comparative costs showing the cost to remain on the job site (meals and accommodation) versus the cost to commute including travel time (if applicable), plus the coat of car usage or whatever other mode of travel is used. An intermediate change in any of the above rates will necessitate that local management reconsider eath situation, e.g. if the employee is commuting by private car, rate changes on reaching accumulations of 4,000 and 12,000 km may reqbire further review. If an employee elects to commute,-where the cost to remain on the job site is less, the employee will not be able to claim the full cost of travel on the expense account (see (e)(i) above). In such cases, the actual distance travelled must be shown in the “Particulars” column of the expense account but, it is auggested;the actual claim for payment could be made up of a reduced number,of kilometers which when added to the cost of travel time, would equal the cost to stay on the job site.” -6- Y The Union in these proceedings did,not challenge the employer’s right I to require an employee to remain on-site whenever the costs associated Ii therewith are less than the coats to conrmyte. Similarly, the Union did not take issue with the general concept of codt comparison. It vould appear from II the evidence of the employer that the concept is one that has been used for a considerable period of time in respect type of matter. After reviewing all of the evidence and submissions, we conclude that 1 the employer may take steps, in the exercise of its management rights, to I/ limit or reduce the cost of carrying on i:a activities. The cited excerpts I! from Exhibit ‘10’ reflect such an attempt.i Through the device of the cost comparison, II the employer is able to determine the relative costs of the II employee staying on-site in contrast to cyuting on a daily basis. When I’ these costs are subsequently cotrmunicated.; the employee is confronted with an election. I’ The employee may either remain pn the job site during the week, or II subject to limited exception, elect to coTput= “as a matter of personal, choice”. 11 We would categorise the latter decision as being “personal” in II. nature in that it is taken in accordance w,rth the interests of the employee. In most instances, the employer’s interesti presumably is to have the employee 1 . remain on-site with the consequent reduction in costs. As we consider this to II be a valid objective, we are disinclined t’b rule that an employee, such as the II grievor, can unilaterally enlarge the fin&ial obligation of the employer by choosing to commute. Indeed, we find that’when the grievor efected to 1 commute, and thereby incur additional travel expense, he could not be II considered as engaging in the “business of,the employer” for purposes of I! II . I , Article 22 (Kilometric Rates). Further, the board is not convinced that the additional travel time can be viewed as “authorized by the ministry” under Article 23 (Time Credits While Travelling). In respect of both benefits, this grievor was clearly appFaised of the fact that the employer was unwilling to incur the extra cost involved in commuting. Notwithstanding such knowledge, he decided to travel to and from the work site on a daily basis. I” such circumstances, we adjudge that the additional costs are fairly and properly borne by the grievor. The Union’s major concerns-with the cost comparison related to the variables that were used in the determination that, in this case, the cost to commute exceeded the cost to remain on-site. Two elements of the process were challenged by counsel. First, it was argued that actual:accommodation costs should be u,sed for the comparison rather than a regional average. It was suggested that if an actual rate had been employed (such.as the $42.00 per 1 night charge at a Journey’s End Hotel near the site), the differential between .the respective costs would have been decreased or entirely eliminated such that the compensation payable to the grievor would have more closely approximated the total costs of commuting. Second, the use of the over time rate was questioned in that it cle,arly served to increase the travel costs of commuting. The Union was suspicious of the motives of the employer in requiring the grievor to work all eight hours of the shift. It was argued that this change was largely motivated by a desire to increase the cost of commuting which vould serve to decrease the costs payable by the employer. -8- . _I /) The Ilnion did not accept the allegation that the change was made for reasons I relating to the needs of the job. I) Mr. Brent, in his evidence, Ii statedjthat the average regional rate for 1 overnight accommodation was first established in 1982. II Since then, it has apparently been increased periodically sol/as to keep pace with inflation. He viewed the present rate as a reflection of actual rates within the area of the specific project in question. ; In this regard, he referred to a Ministry of Government Services Hotel-Motel Directory,‘and cited four hotels in the i/ I vicinity of the site which had rates of 1:s~ than thirty-eight ($38.00) dollars. Ii Yr. Brant was of the opinion thtt the use of this regional rate for II purposes of the cost comparison was necessary for both regional uniformity and administrative convenience. With respect to the second concerni!of the Union, Mr. Watson testified that in the period April 6 to 27, il 1987, the grievor’s travel time could be II accosnnodated within the eight hour shift.) After the latter date, as noted above, I the grievor was required to remainion-site for the duration of the shift. It This necessitated that he therefore travel off shift. The board was Ii informed that this change occurred becaua: the grievor had not been requ.ired to spend eight hours on-site during the eirly stages of the project. Once it 1: reached full production, hovever, he was jequired to work hours approximating I those of the contractors which meant thatjhis presence was required on the job for a minimum of eight hours. Ii Six hours on-site was insufficient from the perspective of the Ministry. (! While Mr. W;tsoo initially stated that it was II P .^ . . ’ I just coincidence that the change occurred on the very day the cost comparison took effect, he later conceded that the two events could be “tied together”. He also agreed.with the suggestion that had the straight time rate been utilised in the cost comparison, the respective totals would have been “fairly close” or a “saw-off”. Mr. Brant indicated that in such circumstances, the cost of commuting “could have been cheaper”. The board cannot agree with,the submission that the employment of an average rate for room cost invalidated the cost comparison. We find it understandable why the employer would want to use such a rate across the Central Region. We are also inclined to concur with the suggestion that an undue administrative burden would be placed upon the employer were it required to go into the field and select a particular hotel or motel with a specific rate prior to the completion of the cost,comparison exercise. While the rate used in this instance appeared to this board to be somewhat low, we were presented with evidence as to there being four facilities in the area with lessor daily rates. We are not prepared, therefore, to interfere with the usage of the average rate. We note in this regard that a” employee who does elect, or is required to stay on-site, wi.11 receive their actual Cost of accommodation. I” summary, after reviewing the respective positions, we are unwilling to require the employer to use an actual rate~for costs which are prospective in nature. Similarly, the board has not bee” persuaded that’the employer improperly used the overtime rate for purposes of calculating’travel costs. -10: I The substance of the evidence led for the employer was that once the project !I got underway the grievor was required on-site for eight hours. This was a I! judgment that the employer was entitled td make. II Ue cannot find any reason to interfere with it. Clearly, the grievor did not possess a right under the collective agreement to insist that he be /permAtted to travel on shift. /I In our judgment, the employer can validly require an employee’to work the entirety of their shift. ;I. If travel off shift is the result of such decision, 1; the employer is bound to pay for same at ihe appropriate rate. The rate for 1 this grievor pursuant to the award in Clements, 370184 (Samyels) v.9~ overtime. II We therefore conclude that the employer was correct in using the overtime rate II for purposes of calculating both the cost,,of commuting and the cost of staying on-site. ‘I I/ The Union argued that the reductioi of the kilometers actually Ii travelled, so as to ensure that the grievbr’s entitlement did not exceed the i ! cost of staying on-site, constituted a vidlation of the collective agreement. II Specifically, counsel submitted that suchian approach served to decrease the kilometric rate agreed to by the parties.; Hr. Brant, in his evidence, described how this practice was applied akd stated that, (I in this case, it resulted in the grievor’s claim being rediced by approximately thirty-one (31) I/ kilometers per day. He expressed the opinion that it was more cost effective II . to reduce this variable in that it is pait in cash rather than as accrued time off. Travel time, in contrast, can be taken as compensating leave pursuant to Article 13 of the collective agreement. 1. 1; I’ I I; I I -11: The hoard does not. agree vith the position taken by the Union on this aspect of the case. It assumas that the grievor was actually entitled to the kilometers involved in commuting. We have previously found that he was not so entitled on the basis of having tiade a personal decision. Such decision advanced his interests as opposed to those of the employer. We think that the grievor’s entitlement was properly limited to the cost of staying on-site.’ The adjustment of the kilometers travelled, while admittedly artific,ial, did not .serve to reduce this entitlement. For all of the above reasons, the grievance is denied. i DATED at Windsor, Ontario,. this 26thday of August* 1988. Michael V. Watters, Vice Chairman L. Turtle, Member -12- .~. ~..~,~ .,.. ..~...~ in,. . .