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HomeMy WebLinkAbout1989-0208.Dziedzic.90-10-04 ONTARIO EMPLOYES DE LA COURONNE CROWN EMPL 0 YEE$ DE t. 'ONTA RIO GRIEVANCE C,OMMISSlON DE SETTLEMENT REGLEMENT DES GRIEFS 180 DUNDAS STREET WEST, SUITE 2100, TORONTO, ONTARrO. MSG 1Z8 TELEPHONE /T~L~P~ONE., (4 ~6) 3~6- I 388 180, RUE OUNDAS OUEST, BUREAU 2~O0, TORONTO ~ONTAR/O). MSG ;Z& FACSIMItE/T£LECOPtE : (.~ ~6) 326-~396 208/89 IN THE I~TTER OF ~ ARBITI~TION Under THE CRO~N EHPI~YEES COLLECTIVE BP. RG&INING ACT Before THB GRTEVANCE SETTLE14ENT BO~%RD BETWEEN · OPSEU (Dziedzic et al) Grievor / The Crown in Right of Ontario (Ministry of Transportation) Employer BEFORE T. Wilson Vice-Chairperson I. Freedman Member M, O'Toole Member FOR THE J. Bouchard GRIEVOR Counsel Gowling, Strathy & Henderson ~--- Barristers & Solicitors FOR.THE K. Cribbie EMPLOYER Staff Relations Advisor Human Resources Branch Ministry of Transportation .. HEARING August 18, 1989, 8777 ~-----~'~.~ GSB 208/~9 DECISION The grievors grieve that the employer has inequitably designated their headquarters contrary to the provisions of the Collective Agreement and this Board's Decision in their previous grievances 1261/84, 1269/84 and 1270/84. The relevant provisions of the Collective Agreement are found in Article 38. ARTICLE 38 - HEADQUARTERS 38.1 This article appl/es 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 allo%{ances which require a headquarters to be specified. A in~nistry may designate a headquarters when an employee is initially appointed to a position, or when a position is filled Dy an employee in accordance with Article 4, ArUcte 5, or Article 24 of this Collective Agreement. AH postings, notices and offers in relation to positao,%s covered by this artlcie snail include the designated headquarters for the position. This designation snail be the location considered Dy the ministry to be the most convenient for the e~ficient conduct of the x~inistry's business, having regard to the ministry's protection of the location of the employee's work assignments for a period .of two years. It is not a requirement that the designated headquarters De a faCL[ity whose functions are related to the work to be performed Dy the employee, and the employee's residence may also be designated as his or ~er headquarters. The employer will supply to the Union, for December 30 of each year, a current list of headquarters designated for employees covered by this article. 38.3 -~-- _~-Mu tu a/consent] 38.4 A ministry may change the headquarters of an employee covered by this article, if: (ai the employee's residence has been designated as his or her headquarters and he or she subsequently initiates a change of residence; or (b) a ministry facility which nas been designated as the empioyee's headquarters ceases to operate as a ministry facility; (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 rights to change the headquarters o2 an employee otherwise than by mutual agreement with the employee, the ~oHowing procedure apply: (a) The m/nistry snail first 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 new headquarter's location. (b) The ministry shall determine the new headquarters location in a way which ~s equitable to both the employee and the m/nistry. (c) The employee siTall be given three (3) months notice o~ the change in designation of the headquarters. 38.6 [ 0 m/tted ] 38.7 Employees who relocate their residences 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 or relocation expenses. The grievors are Technician III Surveyor (survey technicians) with the Ministry ~ansportation. They got to their positions as a result of competitions in December 31, 1981 and started in March 1982 under individual circumstances. They work as part of survey parties with respect to highway construction. Consequently their actual work sites change regularly. Accordingly, they receive travel time and mileage based on their designated headquarters location. Originally, they all had assigned as their headquarters the Ministry's offices at 3501 Dufferin Street, Toronto, (North York). They all lived in Metropolitan Toronto but had virtually no contact with the offices at 3501 Dufferin. Normally, they drove to a pick-up point or directly to work sites. The grievors filed grievances in 1984 with respect to their headquarters designation and a hearing was conducted before the Board on November 4, 1985 before a panel chaired by Mr. K.P. Swan~ The grievors claimed that the headquarters designation was contrary to the Collective Agreement and to the terms of a consent decision in Union grievance 145/82 et al. The panel, in that case dismissed their grievances setting out the following reasons at page 11: The grievors were hired to work for a section which is located at 3501 Dufferin Street. The address is included in the 3ob competition posting, although it is not specifically referred to as "the headquarters," and each of the employees was notified shortly after employment that trave! claims should be based upon a 3501 Dufferin Street headquarters location. In no case did any grievor complain about that until the consent award was issued. In fact, the consent award arose from a wholesat~hange o2 headquarters made across the Ministry, and its terms and conditions should be understood in the context of a change of existing headquarters, rather than of the propriety of an initial assignment of headquarters specified at the time of the appointment. In our view, therefore, the consent award simply does not apply to the case of the grievors. In strict terms, they are st/il at. the same headquarters as that to which they were assigned on May 1, 1982, so nothing in paragraph 1 [of the Memorandum of Agreement] applies to them. They have not been the subject o2 any changes, so paragraph 3 cannot yet apply to them either. Paragraph 3, 4 and 5 may apply at some tim~_the future, but have no relevance to the matter presen~y before The grievors further argued before Mr. Swan that the consent award incorporated by reference the provisions of the Ministry's Travel and Expense Account Manual. With respect to that, Mr. Swan stated: Assuming that to be the case, theonly provision which could apply here is clause 1.10. It provided that the headquarters of an employee "shall be at the place considered most convenient.for the e~ficient conduct of the Ministry's business." On the evidence before him Mr. Swan conciuded the existing location did fit that definition. The location of the employee's headquarters was then to be periodically reviewed to determine whether or not "the original arrangement continues to be equitable to both the employee and the Ministryl" Again Mr. Swan found that it has not been shown that either the designation of headquarters in early 1982 ~or the three employees was either inequitable at that time or had b~come inequitable at t~e time that the grievances were filed. The three grievors have since then moved their residences. Under the old Management Manual, there were periodic reviews of designated headquarters. The Ministry argues that'this is not relevant to the issue since in its sdbmission, Article 38 Of the collective Agreement is a complete code. It does not specifically mention periodic review. The Union argues that Article 38 codifies and incorporates the old jurisprudence and continues periodic review. The Ministry disagrees and relies on this Board's decision in Simpson and MinistrvofTransportation GSB'926/88. In the Simpson grievance, the grievor had previously had his home designated as his headquarters. In 1981, he moved his home from Toronto to Beaverton and then requested that his headquarters be redesignated as Beaverton. The Ministry refused his request and instead redeslgnated i~Eferin Street o~ices as Simpson's headquarters. Article 38, it was agreed became part of the Collective Agreement in 1986. The grievance was filed in September 1988. At page 4 the Decision states: Union counsel argued that pursuant to Peebles, GSB 1257/84 the grievor is entitled to have his headquar%ers redesignated in a fashion which is equitable to both himself and the Ministry. Employer counsel argued that such a grievance had to be filed in 19~£ when the redeslgnation occurred. The grievor is now trying to rely on jurisprudence which predates the clause under which he seeks to grieve. It was argued that under Article 38 the qrievor has no right to grieve because there has been no intervening event which would require the Ministry to consider a request for redesignation. It is clear that the Collective Agreement now contains specific language which deals with the designation of headquarters, a circumstance which did not exist when PeDbles (supra) was arguedand decided. Obviously the parties have turned their minds to the issue and the language of the Collective Agreement must supersede any jurisprudence which predates its existence. ~at then is the triggering event which would bring Article 38 into play? [Discussion of other subsections of Article 3B omitted]. This leaves only Article 38.4... (pSi As the grievor's home nas not been his designated residence since £981, Article 38..4 (a~ cannot apply. There was no evidence led that 3501Dufferin Street has ceased to operate and therefore, cannot apply. Finally, it was the Ministry's evidence that in the future the work sites will be moving closer to the grievor's designa~d-~eadquarters, and consequently Article 38.4 (c) cannot apply. As there was no'evidence led of an event to which Article 38 would apply, the grievance must be dismissed.' This leads us into an analysis of how Article 38 appeared in the Collective Agar. Mr Swan, the vice-chair in the Decision relating to these grievors earlier referred to herein, was also th~ Chair of 'the interest arbitration which determined the outstanding issues in the 1984 Collective Agreement. The original award issued on May 23, 1985 and therein certain specific issues were remitted to the parties for negotiation with the Board remaining seised. The Board resumed hearings in February and March 1986 and a Supplementary Award issued on October 2, 1986. One of the issues was #5. 'Headguarters in the original award on this particular point. Mr. Swan had writtenz "FinallY, there is a proposal by the Union to provide in the Collective Agreement for the establishment of a "headquarters" for employees who have to' travel to their work site. The Union asserted, and there was no contradiction from the employer, that the Union's proposal was in line with current policy of the employer and would merely put that policy into the Collective Agreement so that it might be enforced through the grievance procedure. We are prepared for the purposes of resolving this matter, to make an award along the lines of the Union's proposal. However, we are not prepared to draft language at this point, and therefore remit the matter to the parties for negotiations..." In the Supplementary Award Mr. Swan found from the submissions of the parties at the renewed hearings that the Union's proposal departs in several specific ways from the state of the current policy. T~e~-a~.page 22 Mr. Swan writes: Having considered all of the propositions put by the parties, I am prepared to awardthe following language. While.it differs from the language proposed by the Union, and very si~ificantly from the language proposed by the employer, it is intended to replicate the original intention of the Board or.Arbitration, which was to convert the current employer policy, as adapted in the settlement of'a number of grievances and as influenced by a number of decisions of the Grievance Settlement Board, into enforceable collective agreemen~-l~guage of general application. In arriving at this language, I have attempted to take into account a number of concerns expressed by both parties in the course of the hearings. This provision is to form a separate a~ticle of the Collective Agreement: [Then follows the current language of Article 38]. This then poses the question "is periodic review continued 'or does its specific non-mention in Article 38 end it?" Mr. Swan clearly states that he is codifying pre Article 38 rules but states that there was a disagreement between the parties on those rules. On this material I do not k~ow whethe~ periodic review was discussed in the submissions before Mr. Swan. Interestingly enough, twice the article refers to a two year framework: 38.2 and 38.4 lc). It is also practical that after two years the situations may have changed but there is no specific reference to periodic review. On this material, I cannot be sure whether 14r. Swan intentionally omitted reference to periodic review and if so why. But the onus to prove that periodic review survived under Article 38 was on the grievors in these grievances and they have failed to do so. There is another issue. The material before me fails to disclose whether under the pre-Article 38 standards, a voluntary move of residence by an employee in the circumstances where his residence was not his designated headquarters '~'~ld ~have resulted in a redesignation of his headquarters and if so how such grounds would beweighed. The grievors did testify on what locations in their opinions would represent more equitable headquarters but we have no real evidence on how their move of residence fitted in as a grounds for review. Therefore, they have neither shown a triggering event for review nor how the equltles s~oui@De~-measured if there was a triggering event. Given all these considerations, £ leave open any issue relating to the Simpson decision whic~ the Union challenges as unsound. Accordingly, the grievances are denied. DA'fED at Toronto this 4th day of October, 1990. Thomas H.' Wince-Chair 2'00 le Member