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HomeMy WebLinkAbout1988-1392.Beaton.90-02-13;,.. · "'" ~'~:' .<," :~ ONTARIO EMPLOY£SOELA COURONNE , · ' '.~ ' - " CROWN EMPLOYEES DE L'ONTARfO :: ""~*'" 'GRIEVANCE C,OMMISSION DE ' SETTLEMENT REGLEMENT BOARD, DES GRIEFS 180 DUNDAS STREET WEST, TORONTO, ONTARIO. M5G 1Z8- SUITE 2100 TELEPHONE/T£L~PHON~ 180, RUE DUNDAS OUEST, TORONTO, (ONTARIO) MSG 1Z$. BUREAU2100 (4f$) 598-0~98 ', 1392/88 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN: OPSEU (Beaton) Grievor - and - .The Crown in Right of Ontario (Ministry of Natural Resources) Employer BEFORE: J.W. Samuels Vice-Chairperson T. Browes-Bugden Member M. O'Toole Member FOR THE N. Coleman GRIEVOR: Counsel Gowling, Strathy & Henderson Barristers & Solicitors FOR THE C. Slater EMPLOYER: Senior Counsel Human Resources Secretariat Mangement Board of Cabinet HEARINGS: May 30, 1989 August 30, 1989 October 11, 1989 DECISION 2 The three grievors work in the North Bay District Neil Lang and Floyd Beaton are Timber, Technicians, and Roger Weber is a Conservation Officer. ~Until December 1, 1988, they worke'd out of the Ministry's work centre'at Powassan. On that date, the work centre was closed as part of a- reorganization of the. Ministry's 'administrative arrangements in the District, and the three grievors were now to work out of the District Office in North Bay, roughly 32 kilometers north of Powassan. Their grievances concern the application of the collective agreement to this change. Roger weber has been with the Minis[ry for over 15 years.. In April 1982, he moved to the Powassan area to take'up his position as a Conservation Officer. The posting to which he responded said that the officer would be "stationed at the Town of Powassan". He bought a home in Trout Creek, a short distance south of Powassan. There are six Conservation Officers in the North Bay District. Weber's geographic area of responsibility is a large space around Powassan, to the south of North Bay. In that area, Mr; Weber is concerned with enforcement of provincial and federal conservation legislation (for example, Game and Fish Act, Fisheries Act, Migratory Birds Convention Act), and with management of natural resources. This latter responsibility consists of fur,bearing management (working with the trappers in the area); in the winter, helping out in the Loring Deeryard, in the far west of Mr. Weber's geographic area, ensuring that the deer .who congregate there for the winter are adequately fed; .and stocking fish. Mr. Weber's hours vary from day to day, but basically he works an eight-hour day.. Most Of the time, he is in the field. But he'spends about ten percent of his time' in' the office--formerly at the Powassan work centre and now in North Bay. ~Most of his paperwork concerns prosecutions under the conservation legislation, and he does this paperwork at home_ or at his Ministry ~office. At the ~PowasSan work centre, and now at the North Bay office,' Mr. Weber has work space, a locker, a secretary, some files, a freezer in which he keeps evidence for prosecutions, and various pieces of equipment and. materials. He uses a Ministry vehicle, boat~ snow machine,· ~nd~ other equipment.~ Before December '1988,'he parked the Ministry vehicle at his home at alt times. He would use it all summer for enforcement work, .and in the winter he would use it to travel to and from the Deeryard, and to pick up dead animals on the road when called to..do so. His day would start when he got .into .the vehicle. The Ministry vehicle was used .only fOr Ministry business. After December 1, 1988, Mr. Weber had the vehicle at all times only in the summer. During the winter, at first, the Ministry vehicle had to be parked at a facility in Fadey's Comer, forty kilometers west of Powassan. There was .still work to be done in the Loring .Deeryard, th'oughuless than in previous-years. If Mr. Weber had to go to ithe Deeryard, his day would not start until he got into the Ministry vehicle. He would drive to Farley's Comer in his personal vehicle on his own time. If Mr. Weber had to go to the North Bay office, and this would happen quite often because there was paperwork to be done at the office 'and he was now involved in a bear management project out of N°rth Bay, his day would not start until he reached the office. He would drive west in his own vehicle to Farley's Comer, get into the. Ministry vehicle and proceed north-east to North Bay, a total one-way trip of some 110 kilometers all on his own time~ This meant about three hours driving per day. outside working hours. ,. This' arrangement lasted for about two weeks..Then Mr. Weber 'was told to Use the Ministry vehicle out of Farley's Comer o~nly if he was working to the west. If he was working north of Powassan to North Bay or further north than North Bay, he would drive to North Bay in his personal vehicle on his own time and then take a Ministry vehicle out of 4 North Bay. He would have to keep a lot of equipment in his personal vehicle, because he would be using more than one Ministry vehicle, and it would be necessary-to transfer the equipment.to whatever vehicle he was. using for his work on the particular day.. There is no doubt that .Mr. Weber's vehicle arrangements in the winter are not as convenient or efficient for him now as they were before December 1, 1988, when he had the Ministry vehicle at all times. Mr. Weber does quite a bit of his paperwork at his home, and he receives many phonecalls and visits from members of the public at his home. He's known as the Ministry's Conservation Officer in.the area. Neil Lang has been with the Ministry for over 33 years, all in the Powassan area. He is'a Timber Technician, and spends most of his time on cut control, checking on logging operations. Most of his time is spent in the field. Ten to fifteen percent of his time is spent in an office. He lives in Powassan and he intends to retire there in March 1990. Before December '1, 1988, he worked out of the Powassan work centre. He used a Ministry vehicle which was parked at Powassan when not in use. After this date, he worked out of the North Bay office and the vehicle was parked in. North Bay when not in use. This means that Mr. Lang has to drive the 32 kilometers to North Bay in his personal vehicle on- his own time. Floyd Beaton has been with the Ministry· over 34 years. He has lived in and worked out of Powassan since 1967. He will retire at the end .of March' 1990. He is a Senior Technician, and spends sixty percent of his time in the office, planning and organizing forestry management programs. The rest of his time is spent in the field. He uses a Ministry vehicle for his trips to the field. -. 5 While the work centre was open in Powassan, he could.walk to the centre to commence his working day. Now he drives to North Bay in his personal vehicle on his own time. Now, in these circumstances, the Union' claims as follows:- .. that, before December .1, 1988, Mr. Weber's "designated" headquarters was' his home, because he started his Working day when he got into his Ministry vehicle in his own driveway, and that the Ministry failed to determine his new headquarters in a way whic,h was equitable to both Mr. Weber and the Ministry, and therefore the Ministry violated-its obligations under Article 38 of the collective agreement. The Union asks us to order the Ministry to reconsider the assignment of headquarters for Mr. Weber, and to order the Ministry to return the Ministry vehicle to Mr. Weber's full-time possession. · that, in changing headquarters for Messrs. Beaton and Lang from Powassan to North Bay, the Ministry was obligated to act fairly 'and reasonably, and failed to do so, and that we should now make an order to correct the equities in the situation. This argument is also made for Mr. Weber in the alternative, in the event that we do not accept. Ce primary argument for Mr, Weber. ~ Every employee has a "headquarters", and the location of the employee's headquarters will determine the employee's rights to vari°us benefits under the collective agreement~g, meal'allowance under Article 17.2.2, placement righti when surplus under Article 24. The collective agreement contemplates two types of "headquarters"--a real headquarters, that is the place where the employee actually workS; and a "designated" headquarters, that is a place named as a headquarters for an employee who does not in fact work at one of the employer's facilities. 6 Generally, 'there is no difficulty determining an employee's headquarters. It is where the employee works, or the employer's facility which is used as the employee's base of operations. -. However, 'some employees have jobs which involve work out in the field at all times. There is no real link with any particular facility of the employer--for example, an employee who supervises road construction for the Ministry of Transportation. This employee spends all his time out in the field at construction sites. His work location will v~iry from day to day. These employees 'must have a headquarters for purposes of the collective agreement, so one has to be i'deSignated". Because this exercise is largely artificial--that is, the "designated" headqUarters is not really a headquarters, but is Simply a location said to be the headquarters for administrative purposes there must be some limitation on the Ministry's power to designate the headquarters, otherwise the Ministry could artificially establish a headquarters which would compromise. Unnecessarily and unfairly an' employee's rights under the collective agreement. Article 38 of the collective agreement governs the establishment of '"designated" headquarters. Article 38.1 provides that the 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 agreement and of various allowances which require a headqUarters to be specified. And Article 38.5 obligates the Ministry to be equitable .in the designation of headquarters. It says: ' Where a' ministry exercises its right to change the headquarters of an employee otherwise than by 7 mutual agreement with the employee, the following p~ocedu~re will apply: (b) The ministry shall determine the new headquarters location in a way which is equitable to both the employee and the ministry. This language was introduced into the 1984 collective agreement by the Swan award' of October 2, 1986, and it reflects the'jurisprudence developed earlier by this Board.. In Howes, 356/82 (Verity), the Board dealt' with the designation of headquarters for a survey party chief who worked for the Department of Highways. He went from job site to job site and' had no real link with any Ministry facility: From 1975 up to the date of his grievance,in 1982, the grievor worked on the construction of the new Highway 404. Throughout, he lived in Sutton. Until 1978, his home was his "designated headquarters", and he received a.. "commuting allowance" from his home 'to the job site each day. In 1978, when the commuting allowance system was. replaced by.the "mileage allowance", the Ministry designated its Baldwin Patrol Yard as the grievor's headquarters. The Baldwin Yard was 4 miles from the grievor's home. In May 1982, the Ministry informed the grievor that now his designated headquarters would be the. Gormley Patrol Yard. This change resulted in a loss to the grievor of mileage expenses for roughly 60 miles per day (the return distance from the grievor's home tO the job site). The grievor had no relationship whatsoever with the Gormley Patrol Yard. He grieved. The Board decided that, though there was no explicit language in the collective agreement governing the point, "any redesignation of 'designated headquarters' must be equitable to both the employee and the MiniStry..'' (at page 11). This decision was upheld by the Ontario Divisional Court at (1984), 45 OR (2d) 36i. In Muscatello, 762/83 (Brent), the griev0r was a probation officer working-out of the Brampton office. For a brief period of time, the grievor had a developmental assignment at the MimicO Correctional Centre. Normally, when the grievor used his vehicle and travelled in the course of his duties, he. received a mileage and meal allowance. For the period of the Mimico assignment, the Ministry designated the Mimico Correctional Centre as the grievor's headquarters, thereby denying the grievor any mileage or meal allowance for travel to Mimico. The Board, following the Howes award,~ held that the designation of headquarters must be done in an equitable fashion. Similarly, in Broil, 1296/85 (Barrett), the Board held that the' Ministry could not change the gdevor's headquarters for the period 9f a temporary assignment, when such a change would defeat the grievor's right to claim travel expenses. ~ In our case, firstly, we find that all ,three grievors had the Powassan work centre as a headquarters before December 1, 1988. We do not accept the Union's argument 'that Mr. Weber's home was his "designated" headquarters. No such designation ever .took place,. When Mr. Weber applied for the job, it was posted as a position "stationed at 'the Town of · Powassan". ,Though Mr. Weber was in the field for the majority of his~ . time, his base of operations was.the Powassan work centre. At the centre, Mr. Weber had secretariaI help, some files, a work space, a freezer to store evidence for prosecutions, and other paraphernalia. Mr. Weber used the centre .when necessary. Mr. 'Weber was not an employee covered by Article 38--it could not, be said of him that .he did "not attend at or work at or work from any permanent ministry facility in the course of his du[ies". Secondly, the move to North Bay. was not a temporary assignment. The Ministry shut down the Powassan work centre in order to make its operations more efficient, and cost effective. Therefore, Article 38 does not apply in this c~tse, and nor do the principles developed in the Board's jurisprudence before~ Article 38' 'was / introduced into the collective agreement. The Union argued that we shOuld follow Howes, MUscatello, and Broil. But these cases dealt with employees for whom headquarters were "designated". Because the process of designation is largely artificial,, the Board held that the employer must aCt fairly and equitably. But here we are dealing with a real change of headquarters. And there is no limitation in the collective agreement on the Ministry's power to structure its operations as it wishes, using whatever physical facilities it determines would best suit its needs. The Ministry did not "redesignate" the .grievors' headquarters. Rather, the grievors' headquarters was really changed. There is nothing in the collective agreement which gives the grievors any entitlement to compensation if the grievors now Work out ·of the North BaY office. In.fact, when the Powassan centre was closed, the Ministry offered the grievors a relocation package if they wished to move to North Bay. None of them wanted to move. The Ministry did not feel obligated to make such an offer, but. chose to do so as "a human resources initiative". In'our view, the offer was generous, but was not required under the collective agreement. In North Bay, the grievors have joined many employees who commute daily to the office from places much further away than Powassan. None of these employees receives a mileage or other allowance for travel to and from the office. 10 Finally, a word about Mr. weber's Ministry vehicle. It did Seem from the evidence that he was able to work very efficiently when the vehicle was with him 'at all times, summer and winter. He is on the go almost constantly. However; it is not our job to second-guess management on how best to run its Operations. For us, it suffices to say that there is simply nothing in the collective agreement which'gives Mr. Weber any entitlement .to permanent possession of a Mini'stry vehicle. in conclusion, the grievances 'are dismissed. Done at London, Ontario, this 13th day of ~FebruarY, 1990.. ~mu~ls, Vice-Chair_person T. Browes;B g , ~, M. O'Toole, Member