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HomeMy WebLinkAbout1988-0189.Perger.88-09-28 ' ~ ~ , ~ a ONTARIO EMPLOYES DE LA C(~URONNE ~ CROWN EMPLOYEES DE L'ONTARtO GRIEVANCE C,OMMISSlON DE SETTLEMENT REGLEMENT BOARD DES GRIEFS 180 DUNDAS STREET WEST, TORONTO, ONTARIO. MSG 'IZ8- SUITE 2100 TELEPHONE/T£t.~PHONE 150, RUE DUNDAS OUEST, TORONTO, (ONTARIO) MSG 1Z$ - BUREAU 21 O0 (416) 598-0688 189/88 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTI'VE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD Between: OPSEU (Ken Perger) Grievor and The Crown in Right of Ontario (Ministry of Transportation) Employer Before: R,L. Kennedy Vice Chairperson H. O'Regan Member D, Montrose Member For the Grievor: N. Luczay Grievance Officer Ontario Public Service Employees Union For the Employer: K.B. Cribbie Staff Relations Advisor Ministry of Transportation Hearing: August 25, 1988 DE~I$ION The Grievor is emDloyed as a Highway General Foreman with his designated headquarters being the Employer's Exeter Road Yard in the City of London. During the summer period he works on a bridge crew, and his regularly scheduled hours will be either 5:30 a.m. to 2:00 p.m. or 3:30 p.m. to midnight. During the summer he travels from his home by his own motor vehicle to the Exeter Road Yard from where he commences his shift at the scheduled starting time, obtains the necessary equipment and supplies for the day's work and then as a part of his regular duties drives in his own motor vehicle from the Exeter Road Yard to the job site. He is not paid for the period of time when driving from his home to the Exeter Road Yard nor does he receive mileage for that trip, but with respect to his travels to and from the job site, he is paid the appropriate mileage allowance, and the time involved is part of his normal working day. During the winter, however, he works on winter maintenance, and for that work his activities are centered at the patrol yard located at Nilestown near the City of London. The patrol yard at Nilestown and the yard at Exeter Road in London are each approximately the same distance from the Grievor's home in London. During the winter there is no particular point for the Grievor to report to the Exeter Road Yard, which continues to be his designated headquarters, so there exists an arrangement entered into to the mutual satisfaction of the Employer and the Grievor wherein the Grievor drives directly from his home to the Nilestown Patrol Yard arriving there at the scheduled commencement time of his. shift. He then works his shift but departs from the Nilestown Patrol Yard 30 minutes prior to the scheduled end of his shift but continues to be paid for that half hour on the basis that that half hour represents his normal work related travelling time. During the winter he is paid mileage by the Employer for the trips between his home and the Nilestown Patrol Yard. The driving time from his home to either Nilestown or Exeter Road is approximately 15 minutes. January 24, 1988 was scheduled as the Grievor's regular day off. He was called into work on that date commencing at 5:30 a.m. when he arrived at the Nilestown Patrol Yard. He worked four hours leaving Nilestown at 9:30 a.m. and returned home. The Employer paid the Grievor with respect to that period for four and one-half hours at time and one-half on the basis that the usual one-half hour allowance for travelling time was included. The Employer also paid mileage with respect to the distance from the Grievor's home to the patrol yard and back. It is the Grievor's position that, pursuant to Article 23.5 of the collective agreement, he has been rec~/ired to travel on his regular day off and that he is, therefore, entitled to'be credited with a minimum of four hours with respect to that travel. A grievance claiming that entitlement was filed on March 7, 1988. The arguments of the parties focused on the provisions of Article 23 of the collective agreement which provides as follows: ARTICLE 23 - TIME CREDITS WHILE TRAVELLING 23.1 Employees shall be credited with all time spent in travelling outside of working hours when authorized by the ministry. 23.2 When travel is by public carrier, time will be credited from one (1) hour before the scheduled time of departure of the carrier until one (1) hour after the actual arrival of the carrier at the destination. 23.3 When travel is by automobile and the employee travels directly from his home or place of employment, time will be credited from the assigned hour of departure until he reaches his destination and from the assigned hour of departure from the destination until he reaches his home or place of employment. 23.4 When sleeping accommodation is provided, the hours between eleven (ll:00) p.m. and the regular starting time of the employee shall not be credited. 23.5 When an employee is required to travel on his regular day off or a holiday listed in Article 48 (Holidays), he shall be credited with a minimum of four (4) hours. 23.6 Ail travelling time shall be paid at the employee's basic hourly rate or, where mutually, agreed, by compensating leave. It was the Union position that Article 23.5 stands on its own, that the Grievor was required to travel to Nilestown on his regular day off, and he should, therefore, be credited with a minimum of four hours' pay. It was further argued that even if reference were to be made to Article 23.1, the Grievor's working hours were 5:30 a.m. to 9:30 a.m., and therefore the Grievor had travelled outside of his working hours. It was argued that this clearly must have been authorized by the ministry in view of the fact that the Grievor was paid mileage with respect to that travel. It was argued by the Union that it was irrelevant whether or not travel was a normal part of an employee's work during a regular shift. The Employer took the position that the two sections had to be read together and that before Article 23.5 could be applicable, the employee had to be travelling outside of working hours. For the Grievor on the day in question the. travelling was an integral part of the Grievor's work, he worked for four hours and travelled for one-half hour, and therefore he was properly paid premium pay for the four and one-half hours. He had no entitlement under Article 23.5 by reason of the fact that he failed to meet the threshold requirement of Article 23.1. Within that section he had spent no time travelling outside of working hours. The fundamental issue to be resolved on this grievance is whether or not Article 23.5 stands alone or creates an entitlement only when an employee has met the prerequisite of travelling outside of working hours'with authorization that is established in Article 23.1. That matter has received extensive consideration by other panels of this board, although with different results. The Union places reliance on the decision of Vice-Chairman Verity in Bonora 554/84, wherein on a holiday a grievor spent seven and one-half of his scheduled eight hours working and one-half hour travelling. In that decision Mr. Verity concluded that under Article 23.5 it was immaterial whether the travel occurred within or outside the period of the Grievor's eight hours assigned working hours and allowed the entitlement under Article 23.5. Mr. Verity distinguished the earlier case of Haddock and Campbell 104/80 (Linden). The Bonora decision was subsequently considered by a panel of the board chaired by M. R. Gorsky in MacArthur 555/84, which decision is based on factual circumstances that are not materially different from the factual circumstances in Bonora and in the instant case. Mr. Gorsky reviewed in detail the Bonora decision and the Haddock and Campbell decision, which had been distinguished by Mr. Verity, and he concluded that the two decisions were, in fact, in conflict and that the approach in Haddock and Campbell reflected the correct view. He declined, therefore, to follow Bonora. It is the view of this panel of the board that the MacArthur decision correctly considers the issue, and we would conclude that before there is any entitlement under Article 23.5, an employee must, within the language of Article 23.1, be travelling outside of working hours with authorization. That is the clear holding in the Haddock and Campbell decision, although the rationale leading to that conclusion has not been set out in any great detail in the decision. The rationale has, however, been put to paper in the decision in Fox an~ Bunda 529/81 (Draper), wherein the two sections and their interrelationship are explained. As stated by Mr. Draper, Article 23.1 does not qualify the expression "working hours" with any word such as "normal", "regular", or "scheduled", and therefore if the travel is part of the normal wor~ing arrangement, it is not outside of working hours and does not attract the credit under Article 23 even though performed on a day off or holiday. Put another way, it is our view that Articles 23.2 and those following are merely variations on the theme set in Article 23.1. It is, therefore, our conclusion that on January 24, 1988 the Grievor's travelling constituted an integral part of his working hours, and he was properly compensated for four and one- half such hours at the premium rate pursuant to the provisions of the collective agreement. There is no entitlement to the four- hour credit provided for in Article 23.5, and the grievance is, therefore, dismissed. DATED this 28' th day of September, 1988. /~_/~ Ross L. Kennedy, Chair "I dissent". (Without written reason.  ~O'.Regar~ , Member D. Montrose, Member