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HomeMy WebLinkAbout1982-0145.Ross.84-03-13 ~ "i - , .! ~ ""- 1111 ONTARIO CROWN EMPLOYEES GRIEVANCE SETTLEMENT BOARD TELEPHONE' 416/598- 0688 180 DUNDAS STREET WEST. TORONTO. ONTARIO. M5G lZ8 - SUITE 2rOO 145/82 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Between: , " Before: For the Grievor: For the Employer: Hearing: Before -=" ~ THE GRIEVANCE SETTLEMENT BOARD OPSEU (G.M. Ross) Grievor - And - The Crown in Right of Ontario (Ministry of Transportation and Communications). Employer E.B. Jolliffe, Q.C. H.L. Robinson A.G. Stapleton Vice Chairman Member Member P.A. Sheppard Grievance Officer Ontario Public Service Employees Union r...",. n.w. Browri, Q.C." Counsel Crown Law Office Civil Ministry of the Attorney General January 16, 1984 j II II ! -l i ; - 2 - .1 J I ! ',-- DEe I S ION ,< . This is one of a-series of grievances of which several have already been decided, in which the union a~d employees-wrth. the -- Ministry of Transportation and Communications dispute the Ministry's practice of designating "headquarters" from which mileage allowances and travel time are to be computed when the employees must report for work at construction sites. The work-sites of course are likely to change from time to time. A contentious issue is whether mileage '-- and travel time should be calculated from the emplQyee's home, which , . has~sometimes been _~h.e_ practice I or from a "headquarters" designated - -by the employer"which is subject to change. In his grievance dated February 18, 1982 (not heard until, January 16, 1984), Mr. G.M. Ross complained that: j ,"--. M. T . C. Cons trUCtfon S taft Benefi t s -ha ve-trad itiona..lly_b een. based on employees home address. Benefits are now being based on theoretical "headquarters" which has been repeatedly and arbitrarily changed by Management invariably to Management benefit. Mr. Ross then said his grievance was based on the collective agreement, in particular its silence in respect of a "headquarters" and the authority to allocate "headquarters" or to change it. He 1'-". . requested that 'the employee's "home address" be confirmed as "the historic and only constant and equitable base....." ......... ." ',-- _ 3 _ The Union relies on articles 22.1 and 23.1 of the collective agreement. They are as follows: 22.1 If an employee is on the Employer's be paid effective Kilometres Driven required to use his own automobile business the following rates shall April 1. 1982: Southern Ontario Northern Ontario 0- 4.000 km 4,001-12,000 km 12.001 km and over 23.5c/kIn 18.0C/kIn 15,.Oc/km 24.0c/kIn 18.5C/km 15.5Cjkm \ ...........~ 23.1 Employees shall be credited with all time spent in travelling outside of working hours whed authorized by the 'ministry. Also cited by counsel for the grievor were certain paragraphs in the Ministry.' s Manual relating to "Expense Accounts - Authority, Responsibility and Definitions." The most important paragraphs are the following: '--- 1.09 Eligibility for Expenses To establish the authority for reimbursement of an employee for expenses incurred by him on Ministy business the approp- riate District Engineer or Branch Head must designate for that employee a stated headquarters as the point of departure for his operations. The employee must be officially notified of the location of this headquarters. (See paragraph 1.07) Paragraph 1.07 is as follows: i',; " 'I .~ - 4 - -- 1.07 Responsibility of District Engineers and Branch Heads District Engineers and Branch Heads shall, __(1) designate_the headquarters of each employee and . ., (11) monitor the expense accounts of personnel by initiating a system of unscheduled examinations of claims at irregular intervals . Lack of concern about expenses incurred and expense accounts submitted by the staff may be construed by the personnel as negligence on the par~ of those responsible for administration. Such an attitude can, and all too often docs, lead to abuses. 1.10 Location and Permanence of Headquarters The headquarters of an employee shall be at~the place considered most convenient for the efficient conduct of the Ministry's business. The location of an employee's headquarters shall be '--periodically-reviewed~ by.his _ Distt;'ict Engineer oI'.._Br.anc:.h Head to determine whether or not the original arrangement continues to be equitable to both the employee and the Ministry._ Subject to the periodic review, an employee's headquarters shall ,be moved only when he, is officially transferred to another District or Branch, or to a job site at which it 1s anticipated that he will ~ork for at least two years. I I , ; 1.2 Claims for Distance Travelled An employee's headquarters shall be the determining factor in - -------caTtulating- his claim for-distance costs.- If. an-employee..!.s.____._~_~"__ home is closer to his job site than is his headquarters, he shall be allowed compensation only between his home and the job site. If, however, an employee is required to report to his headquarters either on going to the job site or on returning from it, he may claim the distance between those points. Incidents of this type must be noted on the expense account. Within the limits prescribed by these Instructions, and subject to the approval of the District Engineer or Branch Head, when assigned to a job located at a distance from his headquarters, an employee may, \ (I) commute from his headquarters (or residence) to the job site (see Living Expenses, paragraph 3.06), or (11) reside in the vicinitt~rof the job site. In the latter case, (ll), the employee shall be entitled to claim i' I'it _ 5 _ '-" living expenses (Section 3) provided he continues to maintain the residence at whi~h he lived immedioEitely prior to his assignment. In Howes 356/82 (Verity, Vice Chairman) it was heM that "any redesignation of 'designated headquarters' must be equitable to both the employee and the Ministry within the meaning of paragraph 1.10 of the Ministry's Manual. II That statement was 'discussed by the Divisional Court on an application for review. .......-' In a unanimous judgment it was said: -"(J In the present ins tance t the Board-undoubted 1y had-juris;; diction to enter upon the inquiry, it found-section 22.1_ "____ devoid of meaning without exterior reference, and it referred to the very document put forward by management in the course of its.application of section 22.1. There was certainly initial jurisdiction and we find nothing patently unreasonable in the interpretation given by the Board to the agreement and its application. ; --~---An--appffcatioh-for leave" to appeal from that judgment. was dismissed early in February of this year. It is thus apparent --- that the principle recognized in Howes must be respected. This has already occurred in Speedie & Jones 355/82: 359/82 (McLaren, Vice Chairman} decided on March 2. The remaining question is whether the facts in this case are such as to support fiP?ings similar to those in the Howes and Speedie cases. "--- '-' \.~. .", ~,.:;. '. '"-"' . " _ IS_ The grievor, George M. Ross, has served with the Ministry for 29 years. His history is unusual in that he rose from the level of a Project Supervisor to that of a construction Supervisor in 1967, but for health reasons took a demotion (from management to the bargaining unit) in 1978, since which he has been rated as a Highway Construction Inspector 2. The Ministry is responsible for the construction and maintenance of the provincial netz",ork of h.ighways. Almost all construction projects are awarded by tender to private enterprise, ---.- -------- ,-~ ----- - ~-- - -- but the Ministry finds it necessary to- -employ desJgnengineers---;-- survey parties and also inspectors to assure the quality of the work and compliance with contract requirements. Many projects are undertaken in the crowded corridor between the Niagara penin~ sula and Metropolitan Toronto. Whether for construction or im- , pr.ovement ,~hes~pJ;_QJ~_c;t~ ar~...: ne_~ess~rily scattered; they may last for only a few weeks or for many months and activity slackens in the winter. Thus an inspector may be employed at several different work-sites over a period of one or two years. To reach the site and to carry his equipment from place to place he must use either his own vehicle or a Ministry vehicle. Mr. Ross is not licenced to drive the la tter an,d has always used his own. r~o;, r '- ',,- Fr., '---' ~ I' - 7 - In the summer of 1978 the grievor worked for three months on a Highway 3 project near Port Colborne. His home on Lincoln Avenue at Beamsville was designated as his headquarters. From there to the work-site was about 50 kilometres. He was paid for mileage. travel time and meals. On October 1, 1978, the Winona Patrol Yard (a maintenance facility for which the grievor had no responsibility) was designated as the grievor's headquarters. He was then assigned for two months a or more to a project on Ford Drive, near Oakville, which was 42 miles froni- his home and 32 miles -from the Winona Patrol- -Yard. - . After the redesignation his allowances were'computed on the 32- mile basis. Following a winter vacation, the grievor was assigned to a Martindale Road project at St. Catharines, which was l~mil~s further from Winona than from his home. Allowances were then computed on ,the distance from his home, not the distance from Winona. Initially he received no meal allowance but later did. Similarly, when assigned to a Highway 406 project in St. Catharines, the work-site'was "slightly farther away" and he was paid from his home. This project continued until December, r-..~-, 1980~ after whcih he worked on' another Martindale Road job. for about a year. J~.' ---.:... - ~-;~'~------ ~~- ".'~.,<. ....."-~.... - 8 - From July, 1981, to May, 1982, the grievor's allowances were paid on the distance from his home to Martindale. However, advance notice was given on February 10 (Exhibit 5) that as and from May 3, 1982, his "designated headquarters" would be Beaver- dams Patrol yard, another maintenance facility for which he has no responsibility and never visits. The distance from the new headquarters. to his work on Martindale was only 13 kilometres: the distance from his home was considerably more. The change also resulted in the 1655 of the meal allowance. 0:,0' Mr. Ross further illustrates the effect of the change by referring to his work on a large culvert and pedestrian bridge on Highway 406, commencing in August, 1982. From Beaver Dams to the site was 11 ki1ometres, a 10-minute drive, so that he received no meal allowance. From his home it was 26 kilometres, a 24-minute drive. The grievor estimated that his financial loss since February, 19B2, amounts to about $4,500. Obviously approximations, that figure ,is broken down as follows: Loss of meal allowances Loss of travel time a~lowance Loss of mileage allowance S 1,900 1,350 1,250 ';"\'r"' S 4,500 '- - 9 - The present grievance is in respect of the change made in 1982, not the change made in 1978, but of course the history of the matter is relevant. The grievor's claim is that'ever since the date of his grievance he ought to have been paid allowances computed on the distance between his home and the work-site. He complains also that he was never consulted about any of the changes he had described. " Mr. Ross also explained the nature of~h~s work; in particular, the need to carry instruments for the purpose of testing ~----- the air content of cement as poured. This type-oi work may comme~ce at 7 a.m. or as early as 4a.m. In pouring a "deck" the first load must be tested and thereafter about every third load. The grievor asserted that "on a cost-plus contract the Ministry allows trans- portation costs for the equipment and the operators.~ Mr. Tom Smith, called by the Employer IS counsel, was formerly Regional Director of the Central Region and now heads the Highway Engineering Division. He described the history of allowances from 1958. Recent changes were .due to the high costs; it was found that "about 25 per cent of the salary bill was being spent on getting 'people to the job." He also said that the $avings have been "under half-a-million a ye~r." The Ministry "",. had offered to compensate an e~p~oyee {at a cost of about $lS,OOO} :. '-- - 10- who chose to move nearer to his headquarters, but few had taken advantage of the offer. The cost of what he termed "fringes" in 1981 was "roughly three million, and I felt it was--too high." Mr. Smith asserted that in October, 1981, the plan for headquarters changes had been presented to local unions involved and he was surprised to learn that Mr. Ross had not been consulted. He recognized Exhibit 10, an unsigned letter from UManagement '-- ,Personnel Construction Cen tral R~gion" dated February 16; 1981, -'-<,' protesting that "proposed changes" in headquarters were not equitable, would result in peopl~-leaving M";T-:-C-:-- and-would -'cause a morale- - ---.----- - -"_._~- ~ --~_._-- - problem with those remaining. It also asked for a meetlngwith "Senior Management." ~} The changes referred to involved a drastic reduction - in~the__number of_so-5=_alled h~adquarters. Prior to May,- 1982, there were at least 14 along the Lakeshore from Mississauga to Fort Erie and Port Colborne. Thereafter only two remained, one near Hamilton and the other at Beaver Dams, as appears from Exhibits 9A, 9B and 9C, identifi~d by Mr. Smith. It is obvious that the two were selected having regard to the major projects planned in the area, i.e. they were near such projects, but not necessarily near to the homes of 'employees in the district. ;."'f.~. ,,--. '- >; ;.~ i ". - 11 - The second witness, Mr. Ray Illingworth. was involved in the 1982 selection of nine headquarters from Peterborough to -..--- - - Beaver Dams, near Thorold. He did it "from the fi ve~ye-ar construction award schedule." In his analysis he studied each employee's home address and the distance to the nearest proposed headquarters. Affected were 301 bargaininng unit employees and 52 management employees. Without taking account of meal allowances, 'he made the following analysis: .J Employees who gained: ~-_. Employees who' lost: Employees-no change :.--- 43 or 12 per cent lalor 51 per cent- 129 or 3 7-~per cent Mr. Illingworth also said that 73 employees or 22 per cent would be eligible for the "relocation" allowance since their homes were more than 40 kilometres away from their headquarters. He estimated the total savings effected by the 1982 change would amount to $450,887, but if relocation were utilized the cost could be as high as one million. Mr. Jerry Smrcka, Manager of the Construction office, agreed that Mr. Ross required the use of a car to do his job. Mr. Illingworth had said that if the grievor did not use his ;--...., own vehicle the Ministry would provide onc. ,\ '- ...... -~. _T'---'-_ _____~, "'. 'f~,,- .~t~~ -<-:;; , '......1 - 12 - In his argument Mr: Sheppard relied heavily on the provisions of paragraph 1.10 in the Ministry's own Manual. It --.------ .~ clearly meant, he said, that in reviewing and chang-in-g the location of headquarters there was an obligation to consider whether it would be "equitableH for both the employee and the Ministry, and to act accordingly. This had not been done, he submitted. There may have been Ua grand design to save the Ministry money," but it had no relation to the equities. He urged that an attempt should be made to determine the proper locatiOn of the headquarters, that the grievor should be compensated for what he had lost and that the, board should remain seized if' the par!..ies themselves could not agree on the amount. For the Employer, Mr. Brown, said that.cost-saving is a legitimate concern. Although the Union had succeeded in Howes, he_s_aiqil:Le_I3o~~(Lha<;La)so ~p~h_eld man"~g_me,nt' s ~i9!1t _t9_ d~,~~g~~teJ _"_ headquarters under section 18 of the Crown Employees Collective Bargaining Act. He argued that lithe equities fall on both sides. II Employees should assume at least part of the cost of getting to work. Other employees regularly employed at one location normally bear the whole cost of travel to and from the work-place --- and travel on their own time. He suggested that the reduction in the grievor1s entitlement was a ~?t unreasonable contributionlt on his , part to the cost of getting to work. '-- - 13; - il I , I I ! '.\ .... We have taken note of other cases in which a similar problem arose. In Williamson et a1 187/81. et aI, the facts were some~hat different and the panel of this Board chaired by.Profe~~o~_ Barton held that "on the question of whether or not a headquarters other than a person's home may be designated, the practice adopted by the Ministry is ~otal1y consistent with the Agreement," and all the 9rievances failed. At the same time, the following significant observation was made at page 8 of the decision: '-.-. .. , '< If the designation of assigned headquarters were changed on '3 regular basis one might have some suspicion that -~~~- thi-emproyer' was mhus ing' its power to~des ignate. In this case th~ evidence is that until october, 1978, the designated headquarters of the grievor was his home in Beams- ville. Then it became the Winona Patrol Yard, but if the job-site was closer to his home than to Winona, the mileage calcul?tio~,~as' made from his home, as though it were again his "headquarters.1I '-" This may have been reasonable, out it illustrates the highly artificial character of the "headguarters," which is not really a headquarters at all but a convenient reference-point on the map if it happens to be closer to the job-site than is the employer's home. In May, 1982, a new "headquarters" was designated at the Beaver Dams Patrol Yard, with similar rather anomalous results. /"..- , , ' '- - 14' - The two changes undoubtedly reduced the grievor's entitlements for mileage, travel times and, on occasion, meal allowances. Al though the Ministry I s prerogatives are made clear in section 18(1) of the'Crown Employees' Collective Bargaining Act, the reasoning in Howes was that the Ministry had fettered itself by requiring (in the Manual) ~hat arangements be equitable for both the Employer -and employees. and that reasoning was upheld by the Divisional Court. .J ~ - -... ... -~ ~-~~ In Howes the Boardconchided by-- stating: This Board finds that the Ministry has violated its own regulations as set out in paragraph 1.10 of the Ministry's Manual in the redesignation of the Grievor's headquarters to Gormley, and in so doing has violated the provisions of Article 22.1 of the Collective Agreement. We do not have evidence before us to determine what headquarter ~_~__ "designat1on_,~.ould be equitable to both. Parties. _.~ Accordingly, we '.leave-r.hat-issue to the resolution-of- the Parties. and will remain sei~ed in the event that the Parties are unable to resolve the matter. In the interim, this Board will re-establish the status quo and revert back to Baldwin as the Grievor's designated headquarters pending an equitabLe resolution of the issue. The Grievor shall be compensated for any and all los~ mileage from Baldwin to the job site and return, subsequent to the Ministry's redesignation of his head- . quarters in May of 1982. In addition, we shall retain jurisdiction in the event that there are any difficulties between the Parties with regard to compensation to the Grievor. or in the interpretation or administration of this Award. '- ,,~-, I I I I i r I - --I I \ I ) I i ,'" . La '- - 15 - In Speedie & Jones, decided in March of this year, the Board concluded as follows: ::.? .......,.....,.-.- - ----~ The Board finds that the employer has violated its own admin- istrative practice as set out in paragraph 1.10 of the manual in redesignating the grievors' headquarters to Gormley. In so doing, it violated th~ provisions of Article 21.1 and 23.3. It is ordered that the matter be remitted to the parties to be dealt with in accordance with the provision as set out in the manual'which requires a headquarter designation which would be equitable to both parties. Until that process has been completed, the grievors are to be placed in the position 'that they were in prior to the change in the administrative practise, which in th~ case of Mr. Speedie means that his designated headquarters is to be Lorneville and in the case of Mr. Jones, it is to be Baldwin. This order is to remain in ___effect_until_a_headquar_~r~es~gnation which 1s equitable to both parties has been achieved. It-is ordered~hat tne-grrevors--~--- be compensated for all monies. lost as,a result_of_the breach of Article 22.1 and 23.3. It is further found that ther.e-has-.--~~~u been a breach of Article 17.2.2(b) and the grievors are to be paid for the cost o~ meals pursuant to that provision. The Board 1s retaining jurisdiction to determine the qUantum of the monies which would be owing to the grievors as a result of. these orders. ; It is worthy ofoote that in the above case the Board referred to Article 23.3 of the Agreement, which is as follows: 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 des- tination and from the assigned hour of departure from the destination until he reaches his home or place of employment. "'r' i tI '.' .---. ~~ - 16 - In this case also, we are bound to find that the Ministry violated its own administrative practice as set out in paragraph 1:10 of the Manual, and in so doing violated the provisions of Article 22.1, 23.1 and 23.3. Before disposing of the matter it may be appropriate to offer the following comments. (1) The Ministry's employees assigned to construction 51 tes are in a different position from that of other public servants who normally travel fro~ their homes to a fixed place of employment each working day of the week, and return at the end of the day or the end of a shift. ~---- The posi ti"onis also -d-i-fferen t--fro-m-th-a-t-of --~~ - ----~- a public servant who may be sent out of 'town for- a day or--more -- at -~=---- a time for a specific purpose, and who may travel' by car or --bus or train or by air. ( 2 ) - The sp~ci a1 characteristics of the work done by_ an: - ~.- '\~~-~~--'-- --~ Inspector such as the grievor are perfectly clear. The location of the job-site is entirely beyond his control and it is also beyond the control of the Ministry in the sense that the location is dictated by priorities in the public need for, improved transpor- tation facilities. Thus the job site may happen to be only a kilometre away from the employee's home --- or it may be as much as 100 kilometres away. Moreover, it is always temporary; it may I'r-' '. .. - 17 - last only a few days or as long as two years. These characteristics have nothing ~n common with most work in the public service. (3) There is merit in Mr. Brown's suggestion that a construction employee should make a contribution toward time and travel cost comparable to the contribution ordinarily made by other public servants who go to and from work on their own time and at their own expense. It is not reasonable that construction employees should be compensated for. all their travel time or expen se between !j their homes and their jobs. By the same token it would be inequitable I " to~penalize. them-for being~ oblige-d~to- travel--long-di-stances~to~------ - job si tes, that befng - ci-' bu"rden 0 ther public servant-s -a-re not-~requiied - to bear. (4) In our view the choice of a "headquarters" unrelated to the requirements of construction work is not a, satisfactor~ _;_ solution. Patrol yards such as those at Winona and Beaver Dams are used by maintenance crews with an entirely different function. They are never visited by Inspectors like Mr. Ross and have no connection whatever with his work. It is clear from the testimony of Mr. Smith and Mr. Illingworth that they were selected for the purpose of reducing' travel claims, and ~he selection had that effect on 181 (or 51 per cent) of employees, but 43 (or 12 per cent) f".,-, gained and for 129 (37 per cent) there was no change, The figures '; ~. -:-;. .,,::"'!.. - l~ - fail to suggest equitable results, although there may be some cost-saving for the Ministry -- as long as' few take advantage of the relocation allowances authorized. (5) Another comment must be that what seems fair to most employees in one year may become unfair a year later because of shifting priorities or the adoption of new construction schedules. Even if devised with the best of intentions, the present formula appears certainJto create inequities. (6 ) - There is no evidence on which this--Board-could~ devise a formula that would be- equftable to both -the- Ministryuand- - the employees. We do not ,think it has been shown that the system in vogue before October, 1978. was fair to both parties. The Board's conclusion is that the part~~s should~----~ -~- ~--._- -- - - -,. negotiate a better formula. It is suggested that the parties try to agree on "what would be an appropriate contribution for an employee to make. For example --- and it is only an example --- if the parties were to find that the average public servant in urban areas travels 8 kilometres getting to work and spends 20 minutes of his own time doing it, then it is conceivable the parties might decide to compensate construction employees for any r,.." travel or time iri excess of those figures, calculated from the f '. .'.. - 19 - employeels residence. What the appropriate figures should be is a matter for inquiry and negotiation, not to be determined by this Board. As we have pointed out, the designation of the employee1s home as his "headquarters" is not a satisfactory permanent solution. Nevertheless, the changes imposed on Mr. Ross in 1978 and May, 1981, were contrary to the requirements of the agreement and the manual. His complaint about the change in 1978 is not really before us because his grievance was presented in February, 1982, and related to the, second change,. which was to become effectrve iri~May. ~ In~~---' "'~~', ..,..'-,-. .""'<- .~: our opinion the only remedy available is restoration of-the situation as it existed in February. 1982. His official "headquarters" then was the Winona Patrol yard, although the employer's practice was to compute allowances on the distance from his home if it happened ~c;-~ -- -~-----to be closer_to_the__job-si te~_ This seems to have been a kind ofi "heads r win: tails you lose" arrangement. Consistent with the Board's decisions in Speedie & Jones as well as Howes, it is ordered that the matter be remitted to the parties to be dealt with in accordance with the principle that a headquarters designation must be equitable to both parties. Until completion of that process the grievor is to be placed in ""f-. t the position he was in prior to,May 3, 1982, when his official 'I, "-0 f:. - 20 - headquarters was the Winona Patrol Yard. It is,further ordered that he be compensated for all financial loss as a result of the change in May, 1982. The Board is retaining jurisdiction to de~ermine the quantum if the parties are unable to agree on the amount due to the grievor. Q.C. Chairman (;;L~ K.-,^ ~.~ - ~ Dated at Rockwood this 13th day of March, 1984. L' ~ H.L. Robinson Member '-- 4 ff~~ A.G, Stapleton Member EBJ:sol "':'"