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HomeMy WebLinkAbout1982-0356.Howes.82-11-25 ~ ~,'~ //, ~ .", ..,I 1P> - . ~ i ", ". .. _ C:'.;';{ . ':.;' .:.. ",,- / .. . .' .~: .i ." . . 'L;" ~ . : J . . .r--, " ~.,' . .' .T." . ~ ~ . . ~. .. , . _..,. .-. . . .",..( , ..... . ,; ~ [. '.'I? '!'.'.'O::'f"';-":" . ,,- ~ ,. 'L .. -" '1:';;"";'-" ..' .0.... .~:.... . . ,". , '". .. I . . ".. ~ . ,........, ," oJ . :'.',,,~ 1111 ONTARIO CROWN EMPLOyEES GRIEVANCE SETTLEMENT BOARD 180 DtNDAS STREET WEST, TORONTO. ONTARIO. USG lZ8 - SV1TE 2100 IN THE MATTER OF AN ARBITRATION . . Under TELEPHONE' 416/598-0688 356/82 THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Between: Before: Before THE GRIEVANCE SETTLEMENT BOARD OPSEU (Roger C. Howe$) - And Grievor The Crown in Right of Ontario. (Minist.ry of Transportation' and. ; Communications) R.' L.' Verity, . Q.C. L. Robinson M. . Gibb P. J. J. Cavalluzzo Counsel Golden, Levinson Barristers & Solicitors For the Griever: ., Employer . . .. . . Vice chairman'.,.... Member '. Member' W. J. Gorchinsky Representative Chief Staff Relations Officer Civil Service Commission For the Employer: Hearing: October 26, 1982 .~ '\ .p 2 . ;:", ~ DECISION ., .,.:.', In a Grie~ance dated May 31st, 1982, Roger. C. Howes grieves financial losses incurred by him as a result " ' of the Ministry's redes1gnat1on of his designated headquarters from Baldwin, Ontario to Gormley, Ontario. His Gr1evance~reads in part: r'.. "I grieve that M.T.C. use of a 'designated headquarters' has no foundation in the Collective Agreement and is a method being used by management to c; rcumvent the 'appro- . priate 'commuting articles of the Collective Agreement.... n., . ~. . .'~ ':, .;.": '" ~.o The Grie~or seeks reimbursement for all m11~age expenses incurred by him since the Ministry redesignation of . -.'.-. . . ~ '.,- : : :.~. ' ~~ >',~' . his headq~arters 1n May 0' 1982~ The Grievor commenced working for the Ministry 1n /:-- 1965 with the Department of Highways as it then was. His total '<, ...... career has been with the surveying crews. He became a survey "Party Chief" in January of 1970 and still holds that position. From the outset he has used his own personal automobile to . travel to and from the job site. The-Grievor's experience has been centered in the York area with the exception of three or four months when he worked in Wel1and and lived at Miagara-On-The- Lake. In December of 1970 the Grievor moved his residence to Sutton, Ontario and from that time until 1978 the Grievor's home .--- f? ," .', :, . ~ ,. ", ""'"'". ~ c.._ . .~. ,',.;',;1.';;. :.' .' " . L ...;,,~~,:-~:'~., :~: 'c' . ~." -' .;,. .~.. :. -'. . l ." .... .' . " \," .:.. .' ~ . _H~.'~~'-. .-,,".~ ," ";:.~:~:>'-" :'~' .. < .:.:. ...... . ..'- ", ,,--.. , '.~ n: \ :.'~" > ~. <,EAh... '-.', , .\ <, " . "'-~~\'.':'.' ," .~ /--- 3 I . ' in Sutton was cons1deredby the Ministry as his' deslgnated~ headquarters. Until 1978, the Grievor was paid a "commuting allowance" from his home in Sutton to the job site. In 1978, the "commuting allowance" system was " abolished and replaced by a "mileage allowance". In October of 1978. the Grievor1s headquarters was changed by the Ministry from his residence in Sutton to Baldwin,. Ontario which is a Ministry Maintenance Patrol Yard located just 2 miles south of Sutton. The Gri evorl s home is 1 oca ted 4 mil es north of . . Baldwin and therefore'.the Grievor lost mileage' payments of approximately 8 miles per day. He did not ftl~ a'Grievance at that time as he assumed that the Ministry was atte'mpting <, to simplify the administration of mileage computations. . .....::.. " .:: ~... The Grievor has been working since 1975'0" the construction of the new Provincial Highway No. 404'~ the' extension'of the Don Valley Parkway NOrth from Toronto. . At the present time that highway is completed to a point slightly south of Aurora, Ontario. In May of 1982, the i!ievor received notice that his . . designated headquarters was being changed to the Gormley Patrol Yard located at the intersection of Highway 404 and Major MacKenzie Drive. Gormley is located ap~roximately 6 miles ,; .;~ i 1/ . ~~ .' .' " ,I' . . ,c. 1';' '," - 4 j.. .:,......:. \ ", .',";::;',:,.' south of the Grievor's present job site: The effect of \o/;.~,.{ ~? .':' '. . . :.<') ':';" : this change in the Grievor's designated headquarters was 4' -: . .,' -: . L'-. "".~.. .. ,1, :~ ";~~'~.':..': :"'~.:'.:~~.C .' . ....~, . ".J ,'+.' '~'" < ';~'-.~'~-:'.~:.; " .~ . . , ,~. .. . . ,~- .', '"., ," '.;.> ~ ~:..'. .:." . ~: .,."" :. ~ . '~-'~.~~- .:;~'..~. . ','." . '.~, .... , . . . ,c. i' '.h.... , '. ...-... ( '. to deny the Grievor his mileage expenses from his home in Sutton to the job site which is a distance of approximately 30 mil es . The Grievor's evidence was that his mileage' expenses from May, 1981 to May, 1982 totalled $5,700.00. Under the new headquarters designation at Gormley,:the'Grievor estimated that from May,' 1982 to May, 1983 he would' be entitled to mileage expenses of only $1,600.00. Accordingly~ the. Grievor, .~. would no~ be compensated for mileage from either S~tton:or, Baldwin to Gormley, and his'mileage entitlement wou1dbe restricted from Gormlei to the Job site and return.:whfch would ~e' 12 m11e~ per day. personally had no relationship whatsoever with ,the :Go.rmley Maintenance Patrol Yar~ as no equipment pertaining to the Grievor was stored at.that location. On behalf of the Ministry, Ian Cowan, Director or Human Resources and Services for the Ministry testified in some detail concerning Ministry poli~ies in effect throughout the "years regarding mileage, the changes to those policies, and the reasons for the changes. Mr. Cowan testified that under no circumstances was an employee required to use his privately owned vehicle for employment purposes. In fairness, he testified that there was a wide variety of arrangements made by the (7 r /. . . -, :~~.~~~. ::~'i ... ; .~ ' '. ',.' ". ;. . . '-:" , ".: ,.\ . :. ';~~I~i~ :< :'+",;,." ~:}. .....'. ".'",. , " . - .: ~ ".' ;-. ". .-.' ., ~ . - . .~' .-....... . >.~. ." . :.--..., -.-,..;-,.... : "." ..;~ ": _:,:~ ' . ; . .:..' l . - ~.-.'. -,,;..;.. .' . ",' .. .' L,' ~. . . ...~:. '.~ ...~.:~;;: .....~ . . >" - '.' "." : . . . .{ i{~<. .., '.. ':: ", , : ~ f~ - 5 - . , . Ministry regarding headquarters designation to accommodate. its approximately 10,000 employees. Mr. Cowan emphasized the fact that the Government cannot dictate where an employee' chooses to live. He was of the'opinion that the designation of headquarters was a management prerogative that was not defined in the Collective Agreement. There is no doubt that Mr. Cowan was a very credible witness who was both honest and forthright in histe~ti~ony. Credibility is not a~ issue in these. proceedings as the .Grievor to~ was a credible witness. It is not possible to recite in detail the very abre arguments presented by the Parties' representatives~ Suffice it. to say that both argumentl ~ere excellent and t~e Uni~n's argument in parti cu1 arc was in consi derab1 e detail. :- . .- . On behalf ~f the Grievor,' Mr. Cava1uzzo argued forcefully that the Ministry h~d violated Article 22.1 of the Collective Agreement when it changed the Grievor's designated headquart.rs from Baldwin to Gormley. . Alternatively, it was argued that Article 22.1 was unclear and that the Parties could resort to past practice in determining the intention of that Article. Further, it was argued by the Union that the doctrine of estoppel prevented the Ministry from altering a long standing practice during the course of a Collective Agreement. ,', v ----- .:: <. '- "~ " 1:.( : "':.. - I"" ------, !,." :i, , ". ~ . '.. . ~ ~ . . ~.:~L).~'_~",..,~... . -. ; .~.~ ; '. "- >" f.',.: . .,..,:". ' " :,'~~''';: /--.. - 6 - 'Mr. Gorchinsky. on behalf of the Ministry, argued that Article 22.1 was clear and unambiguous in its wording, and that there was no necessity to rely on past practice. In any event, it was argued that the past practice ceased in 1978 when the Grievor's designated headQuarters was changed by the Ministry from his home in Sutton to the Baldwin Patrol Yard. It was alleged that the Grievor was not required to use his personal automobile for Mfnfstry. busfnesst that transportation would be provided from head- quarters to the job site, and t~at travelling from-the'.Grievor's hom~ to the designated headquarters was the employeers,respons- ibility. Mr. Gorchinsky'argued that the principle in the instant Grievance had been previously dealt with by the Grievance Settlement Boatd Award of OPSEU (J. Williamsonet a1).-:,. and Ministry of Transportation and Communications~187/81, 289/81, 454/81. 546/81. 6 82/ 8 r. . 1 24/82 .. 1 25/82 . 1 26/82', ,..1 27 /8 2 .' 1 28/82 , 129/82 and 130/82 (Barton). The Employer alleged (somewhat briefly) that the fssue before this Board was not within the Board's jurisdiction. We cannot accept the Employerls argument that this Board is without jurfsdiction to determine the merits. The Employer's jurisdictional argument is difficult to comprehend t' -;, ,;; ,'---.... '. . ~ : " )H, ~;~:.;' ": , ' ~ ~ :;~:":'t. :'.:. ,. ;;"'~,~. ,"., ,;. ' - 7 - -:. ....~ ,. . , when a previous panel of this Board dealt with what appears to be a similar fact situation,in Re Williamson et al cited above. We are of the view that the jurisdictional argument was not seriously advanced by the Employer, and accordingly will not be seriously addressed by this Board. ,. . , r~';,', ., :::'.' 'oJ, . . ~ ." . , '. """~ '." }.. The relevant Article of the Collective Agreement is 0. Art i c 1 e 22. 1 : "22.1 If an ~mp10yee is required to use his own automobile on the Employer's business the following rates shall be paid effective April 1, 1980: . ,..,c,. :' Ki 1 omete rs Driven . . Southern Ontario No rthe rn Ontario ." -:~ ". o 4,000 km 4,001 12,OOO.km 12,001 km and over 17.0t/km 14.0t/km 11 .5t/km 17.5t/km . 14.5t/km 12.01t/km" .'.j. ".. ... '. -', --... ' / .'. . . The Collective Agreement contains no definition of headquarters or designated headquarters, although there are references in the Collective Agreement to "headquarters". As Professor Barton stated in the Williamson Award at page 5: - "Naturally where there are- explicit prOVisions in the Agreement that govern the matter, those provisions will apply and any inconsistent provisions found in Policy Manuals or Memoranda will not. Article 14.1, the Call Back Provision, deals with; 'place of work.' Article 17.2.2 the Meal Allowance Provision, reads: /'. lIf during a normal meal period the employee is travelling on government bus1ness other than;,.. .(b) within (24) twenty-four kilometers of his assigned headquarters.., I. (/ .8- ,/"-- Article 2n.2, dealing with Isolation Pay, defines a work location as: 'the ,address of the working place at which the employee is normally stationed or, in certain special cases, another location designated as headquarters by the Mi nistry. '. Article 22.1, dealing with Mileage Rates, indicates that: 'If an employee is required to use his own automobile on the employer's business, the following rate shall be paid...'. .. Article 22.3 (Appendix 5) indicates: I ...the use of privately owned automobiles on the employer's business is not a condition of employment.' Article 23, dealing with time credits while travelling, refers in Article 23.3 to travel directly from home or place of employment' ...until he reaches his destination.' It also deals with trips from the destination lunti1 he reaches his home or place of employment. I Artic1.e 24, dealing with job security, uses the designation of 'headquarters'." The Employer has published a Travelling and Living Expense Accounts Manual (Exhibit 11), last updated in March of 1981. In this Manual under Section 1 entitled "Expense Accounts - Authority, Responsibility and Definitions" 'under the subheading ~f "Headquarters" at page 1 - 2, the following . paragraphs are relevant: "1.02 Eligibility for Expenses To establish the authority for reimbursement of an employee for expenses incurred by him on Ministry business the appropriate District Engineer or Branch Head must designate for that employee a stated headquarters as the. point of departure of his operations. The employee must be officially notified of the location of this headquarters (See paragraph 1 .07) .r-- .;; .~- /'--, .----- ~ - 9 - 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 M.infstry's business. The location of an employee's headquarters shall be periOdically reviewed by his'District Engineer or Branch 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 is anticipated that he will work for at least two years. 1.11 Headquarters - Home Located Outside of Regional or District Boundaries Should management choose to make an employee's . home his headquarters. and that home is located outside the Region or District in which he is employed, a location on a Provincial Highway where it crosses the Regional or District . . Boundary on the most direct route between the employee's home and the Regional or District Headquarters, shall be designated as his headqua rters.. II This Board agrees with the rationale of Professor Barton in the Williamson case cited above. where he ~tates at page 7 of the Award: .. W e fee 1 t hat the A g r,e e me n t doe s con t e m p 1 ate employees who may not have a fixed place of work and does contemplate that these employees may have an assigned headquarters. The use of the term 'assigned headquarters' in Article 17.2 and the definition of work location in Article 20.2 (where no~mally stationed or in certain speCial cases and other locations designated as headquarters by the Ministry) seems to contemplate such employees as those surveyors within the ,Ontario Central Region in particular. Thus it seems to us 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 totally consistent with the Agreement." ,~ ? ~ (~ ~ -...., " ", '. ,---. -: . 10 . We also adopt the rationale of Professor Barton at page 8 of his Award where it is stated: "We feel that in the situation in which there is no regular place of employment, it is reason. able for the Employer to designate some central area such as Downs view, Ontario as. an assigned headquarters and to only pay mileage from that assigned 'place of employment' to a particular destination (job site)." What appears to be unclear in the Williamson Award is the fact situation which that Board was required to address. In the instant Grievance,'we aTe of the opinion that ," by virtue of the Grievor's work as a Survey Party Chief, he was required to use a motor vehicle to transport his equipment. That fact is admitted in the testimony of Mr. Cowan~ The Grievor has used his personal automobile for the Employer's, business purposes consistently from the time he became a Party Chief in ,.-. , '- ., ~. -'. January of 1970. . The evidence is clear that no one has ever told the Grievor at any time that his car was not required. It is . also clear on the evidence that every expense account relating to mileage submitted by the Grievor has been honoured and paid by the Emp1oyer. In our view, the Ministryts actions have been such as to lead the Grievor to believe that his personal ~uto- mobile was required .for th~ job. At this late date, we are of the opinion that it is not open to the Ministry to rely upon the provisions of Schedule 5 of the Collective Agreement and arguet ,.l.!; 'J; ,-... - 11 ~ ,.'. .1 with any degree of credibility. that the Grievor was not required to use his persona1 motor vehicle on the job. ,r--.. We would agree with the Barton rationale in !! Will iamson et al, tha t where t~ere is no reoul ar place of employment (as in the instant Grievance), the Ministry may designate headquarters and pay mileage from that designated headquarters to the job site. Similarly, the Ministry has the right. if it so des.ires. to designate an employee's home as his headquarters. This Board would extend the Barton rational e to state that any redesfgnation of "designated headquarters" mu~t be equitable to both the employee and the Ministry within the meaning of paragraph 1.10 of the Ministry's Manual. " '.c.. In our view. the redesignation of the designated head- quarters of the Grievor from Baldwin to Gormley may be equitable , quarters which is clearly a management prerogative, but that right must be exercised equitably in the interests of both the employee ~nd the Ministry. ....-. . .. .',!;. " /<' ;..... I .'.. '. ' ..:c '.f.,. . ~ ~ ..' .' :~: :', ; '~. .. .:~~~~..~. .J~~:.\"~ ,.:.'. - .. . . r . ~u . ..'-. ."T. " - 12 - 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 Grievorts headquarters to Gormley, and in SG doing has violated the provtsions of Article 22.1 of the Collective Agreement. . We do not have evidence before us to determine what headquarter designation .. would be equitable to both Parties. Accordingly, we leave that issue to the resolution of the Parties, and will. remain seized in the event that the Parties are unablt 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 lost mileage from Baldwin to the . . /~~\;::k'~~' : - . ;!'~ :" " , ...'. t' ,.;::..,:.'-'>t. . . . . . . ..'. .... ~ -;. ~:'. c. . ..... ..: -. ':-1. ;., 1~~;: . .~.').~.. __ .' . , .'. . . ',r .. . ._~~..' r c .j. ':~,.')< ~).;.':. . '1......... .~":..' . '.ii":'-... ;; ;'IW:~t:'t ~: ~ ..;r::?: ,- . ... It'<: ~. -; ~: :>:~. c '.} i.1;,H: :.. jab site and return, subsequent to the Ministry's redesignation of his headquarters in May of 1982. In addition. we shall .,' '"retain jurisdiction in' the event .that there are any di'fficulties ': between the Parties with regard to compensation to the Grievor, 'or in the interpretation or administration of this.Award. DATED at B~antford, Onta~io, this 25th day of November, . A.D., 1982. cF- ~ .a:::-7" R. L. verity, Q.C., V1ce Chair.man 8 : (Ii) 'v ~,> ~ ~ 3700 . ~---~ . ...& .... ..J L. Robinson, Me~er M. Gibb, j'lb b tb)v~ Membe r