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HomeMy WebLinkAbout1988-1257.Peebles et al.88-12-05 ONTARIO CROWNEMPLOVEES EMPLOVls DE LA COURONNE DEL 'ONTARIO GRIEVANCE SETTLEMENT BOARD COMMISSION DE . REGLEMENT DES GRIEFS 180 DUNDAS STREET WEST. TORONTO, ONTARIO, M5G 118 - SUITE 2100 180, RUE DUNDAS OUEST, TORONTO, (ONTARIO) M5G /18. BUREAU 2100 RE'tween: Beforf>: For thf> Grievors: For the Employer: HEARH1G: ylf flf7 TELEPHONE ITtLtPHONE (416) 598 -0888 1257/84, 1258/84, 1259/84, 1260/84, 1271/84 IN THE MATTER OF AN ARBITRATION Under THE CRmm EHPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEHENT BOARD OPSEU (Peebles et al.) - and - The Crown in Right of Ontario (Hinistry of Transportation & Communications) M. R. Gorsky 1. J. Thomson G. A. PC?ckham Vicf>-Chairperson Hember Hember Patrick Sheppard Counsel Patrick A. Sheppard Barrister and Solicitors K. B. Cribbif> Staff Relations Advisor Human Relations Branch Hinistry of Transportation August 26, 1933 Grievors EmploYE'r DECISION In allowing the grievances, this Board directed that the parties endeavour to settle the matter as 'to what headquarters designation would be equitable to both parties because we did not have sufficient evidence with whicW to determine that lssue. WE retained jurisdiction should the parties be unable to resolve the matter. As the parties were unable to resolve the matter as to the headquarters designation that would be equitable to both parties, the Board was re-convened in order to decide this issue. As Mr. Russell's term has expired, it was agreed that Nr. Thompson would replace him as a Hember. f \ , On August 23rd, 1988, Mr. Cribbie, who had taken over carriage of this matter from Mr. Brown, wrote to Mr. Sheppard, counsel for the Union, notifying him that at the commencement ~f the hearing on August 26th, 1988, ari objection to the Board's jurisdiction to inquire into the headquarters designation of Mr. Peebles and Mr. Vecchio would be made, and that the pOSition of the Ministry would be "that the issue is res judicata as the identical issue involving these two grievor's was the subject of the previous decision of the Grievance Settlement Board in Hilliamson et al 289/81." In the said letter, Mr. Cribbie stated that notwithstanding the objection to the jurisdiction of the board, the Ministry would "be prepared to deal with the merits of the headquarters designation of all grievor's on August 26th, 1988.... II and that there would be no request for an adjournment pending a decision on the objection to jurisdiction to hear the issue as it relates to Messrs. Peebles and Vecchio. At the opening of the hearing, Nr. Cribbie made the objection referred to for the reasons stated. I think it is too late for the Ministry to raise an objection ~o hearing the case on the merits as it relates to Messrs. Peebles and Vecchio. The time to do that was when the case was first heard on January Jrd, 1986. No objection was raised at that time and the issue with respect to all Grievors was decided on the merits. The reason for doing so, not- withstanding the form of the grievance, was set out in the award at pp. 5-6: Page 2: III did not und~rstand the pos1tlon of the Employer to be that the grievance must fail if the Griev0rs are not assisted by the Brent Award. Rather, I view the Employer's position as being that the Brent Award did not ~ssist the Grievors and that the matter falls to be determined by the jurisprudence found in Howes and Williamson. On the basis of the Employer's inter- pretation of those Awards, it concluded that the grievances must fail. I believe that the parties, consistent with the Employer's response, wish to have the grievances adjudicated au their ~erits and we will endeavor to do so.1t I. therefore, found that the Employer by its manner of presenting its position on January 3rd, 1986, was under no misapprehension that the cases of all of the Grievor's were being heard on their merits. This would have included those of Messrs. Peebles and Vecchio. At the very least, I would have expected the Award, which was released in ~lay of 1987, to have been judically reviewed, for absence of jurisdiction in the cases of Messrs. Peebles and Vecchio. I \ In the circumstances, I need not deal with the arguments which were presented, especially those relating to the applicability of the doctrine of res judicata to these proceedings. The Award of May 1987 is complete in so far as the issue of entitlement is concerned, and in that. respect this Board is functus. The purpose of re-convening the Board was not to re-examine the correctness of the original determination but to complete the Award as it related to the subject of relief. We will, therefore, proceed to deal with the question of relief which the parties were unable to resolve. \Jhat the Union requests, in asking that this Board be re-convened, is that this Board determine the proper re-designation of the designated headquarters of the Grievors that would be equitable to the Ministry and the Grievors. In addition, the Union seeks compensation, based on the to be designated headquarters, with retroactivity limited to 20 days prior to the filing of the grievance in each case. Dealing with the matter on its merits, I refer to the Howes case (at pp. 11- 12), which was referred to in our Award at pp. 7-8. Here, the redesignation of the designated headquarters of the Grievors to 3501 Dufferin Ave. was not equitable to the Grievors. As in the Howes case, the selection of the Page 3: designated headquarters for the Grievors was artificial. There was no requirement that the Grievors report to the selected headquarters at any time and tIle designation appears to have been unrelated to the Gricvors' job functions. Following the issuance of our Award, the parties met to discuss its implications. The Ministry made certain qualified suggestions in an apparent endeavour to work out such accommodation. I only heard from Union witnesses about these meetings, no countering evidence having been put forward by the Ministry. The proposal 6f the Ministry was that there be six satellite headquarters affecting the employees in the unit, which were stated to be as follows: The junction of 3501 Dufferin Ave. and Highway 401 The junction of Brock Road and Highway 401 (Pickering) The junction of Highways 28 and 401 (Port Hope) The junction of Highways 35 and 7 (Lindsay) The junction of Highways 9 and 400 The junction of Highways 10 and 401 Mr. Peebles, who testified about the Ministry proposal, stated that the Ministry suggested that employees affected by the Award would be assigned to one of the above satellite headquarters, which would then become an employee's designated headquarters. The employee would be assigned to a designated headquarters closest to his home. No serious discussion appears to have taken place with respect to the above proposal because of the qualification attached to it: that not only the Grievors covered by the Award would be assigned to one of the six satellite headquarters but, as a condition of the Ministry agreeing to the settlement, all of the other field staff (22 employees) whose designated headquarters remain their homes, would have to be b~und by the proposal. ~Ir. Peebles testified that even if the proposal with respect to the es- tablishment of the six satellite designated headquarters was to apply only to the ~rievors, it would still be unacceptable to the Union. In Mr. Peeble's case, he stated that the closest of the six satellite de- signated headquarters would be 50 kilometres from his home and he regarded this as inequitable as the other 22 field staff had their homes as their Page 4: designated headquarters and that there was no relationship between the designated headquarters and an employee's home. Mr. Peebles suggested that the only equitable solution was to have the Grievors' homes as desig- nated headquarters. ~lr. Peebles' posi-Uon was that one of the following three Patrol Yards: Brighton (708), Grafton (716) or Roseneath (709) would represent a more equitable choice than that proposed by the Hinistry. The Brighton Patrol Yard is 24 kilometres . the Grafton Patrol Yard is 22 kilometres and Roseneath Patrol Yard is 27 kilometres from his home. ( One of the difficulties in establishing a designated headquarters that is equitable to an employee and to the Hinistry is that the Grievors, who are field staff, have no fixed place of work and may be assigned to projects anywhere within the very extensive region where they work. It makes very little sense for an employee to try to choose a long term home on the basis of where he will be assigned within the region. This was shown in the cross-examination of Mr. Peebles, when he recited his work history with the Ministry, which demonstrated that the life of field staff is parapatetic. In stating his second choice as to what would be the most equitable arrangement, Mr. Peebles referring to his designated headquarters being made the Grafton Patrol Yard (716), stated that he would expect to bear the cost of transportation for the approximately 22 kilometres from his home at his own expense. The Patrol Yard would be the meeting place from which employees driving to the work site would share a ride with the mileage being paid by the Ministry to the owner of the vehicle transporting the employees. The other allowances would be paid to all employees from the designated headquarters, so defined. Mr. Peebles' evidence was supported in its essential features by that of the other Grievors who testified and by Hr. Fields, who testified without objection, on behalf of Mr. Bales and with respect to certain of the other Grievors. Mr. Reddick, one of the Grievors, lives in Apsley, which is located out- side the region. and is on Ih,ry. 28, half\~ay between Lakef ield and Bancroft. , Page 5: Mr. Reddick's home is approximately 27 kilometres from the boundary of the Central Region, which is located at Burleigh Falls. Mr. Reddick testified that the distance from his home to 3501 Dufferin Ave. is 170 kilometres. Under the tentative ~Iinistry proposal, his headquarters would be ~~dsay, which would be 101 kilometres from his home. The closest Ministry facility to Mr. Reddick's home in ApsleYt would be at Younge's Point (707), whicll is 45 kilometres from his home. Mr. Reddick acknowledged that it would not be fair to the ~Iinistry to treat his homet being outside the Central Region, as his designated head- quarters, but considered the Burleigh Falls location, being 14 kilometres from Younge's Point, as being fair and equitable. He regarded Burleigh Falls as being a fair designated headquarters as it would be treated as the closest point in the region from his home, which he argued would other- wise be the fairest designated headquarters. Mr. Reddick acknowledged that there is no relationship between Burleigh Falls and anything he does for the Ministry, but stated that he had to pass through Burleigh Fells every day, whereast 3501 Dufferin had no relationship to his functioning for the MinistrYt nor did he ever go there. Rob Field, the President of Local 510, testified that of the 36 members of Local 510, 22 have their homes as designated headquarters and 14 have 3501 Dufferin, as their designated headquarters. ~r. Field confirmed the evidence given by Mr. Peeblest about the two meetings held with representatives of the Ministry. Mr. Field testified with respect to the case of one of the Grievors, Mr. Balest who lives in Kinmount. Mr. Field stated that Lindsay (703) is 50 kilometres from (Jr. Field's home. The nearest Patrol Yard to Mr. Bales' home is Coboconk (713) which is 24 kilometres from ~!r. Bales' home. ~r. Bales stated that under the conditional proposal of the MinistrYt Mr. Vecchio1s designated headquarters would be Lindsay, which is 39 kilo- metres from his home. The nearest Ministry facility to Mr. Vecchios' home, was Younge~s Point (707), a distance of 6 kilometres from his home. Page 6: ~r. Field also testified concerning the case of Mr. Swindel, one of the Grievors, who lives in Bradford, beyond the Regional boundary. Under the Ministry's qualified proposal, the designated headquarters for Mr. S\o/indel lYOuld be at the junction of .h~y. "00 and 9 (608), \o/hich is approxi- mately 15 kilometres from Mr. S\o/indels' home. The position taken on behalf of Mr. Swindel is that he supported the position of Nr. Reddick that the Regional boundary location closest to his home should be his designated headquarters and alternatively the Patrol Yard closest to his home in the Central Region should be his designated headquarters. I \. :'Ir. Field summarized the posi tion of all of the Grievors to be that their homes within the region should be their designated headquarters for reasons of consistency Hith the other members in the Local. Failing that, the nearest Patrol Yard to each Grievors' home within the region should be their designated headquarters, because it represents an actual place having some relationship to the functioning of employees for the Ministry. Mr Field stated that an employee's home, or the boundary point as above defined, as the case may be, was the most equitable designated headquarters because this had been the case in the past. In cross-examination, Mr. Field stated that his problem with the qualified Ministry proposal was that the satellite yards were too remote from the Grievors' homes. Another objection was that the Ministry required all employees to change t~eir designated headquarters to one of the satellite yards as a condition of the Ministry's acceptance. By consent, it was agreed that the evidence of all the Grievors would be treated as the same as the representative Grievors~ That is, those living within and without the region. In his argument, Mr. Sheppard submitted that the situation of the Grievors was different from other employees in the Public Service who work in more or less fixed locations. Unlike such ,employees, the Grievors cannot plan Page 7: where they will live with some assurance that they will have only a certain distance to travel to work over a considerable period time. Other employees usually are not required to carry Ministry equipment or drive Ministry vehicles and therefore do not expect any compensation for getting to the work place. In contrast to such employees, the G rievors can be sent to work anY\-lhere \ in the very large Central Re:gion. This had led to compensation being paid eo such employees for travel time, mileage etc. There \-las, according to ~lr. Sheppard, no reason for the continuing inequitability in treatment bet\-leen the Grievors and those employees, such as Mr. Field, Hho are permitted to treat their homes as designated headquarters. There was, it was argued, no rationale presented for the existence of two parallel, unequal systems. Mr. Sheppard requested that if we rejected his first submission and require some contribution from the employees, then He choose (l location which has some legitimacy. That is, one Hhich has some relevance to the work performed by the Grievors for the Ministry, as 3501 Dufferin does not. He argued that the locations identified by or on behalf of the Grievors have such relevancy, as pooling or other activities can occur there. Mr. Sheppard argued that the Ministry's qualified proposal was inequitable, because the location specified was artificial and would leave excessive travel uncompensated for on the part of Messrs. Bales (50 K.), Reddick (101 K.), Swindel (16 K.) ~nd Vecchio (39 K.). If the second position of the Grievors was accepted, then the figures given by Mr. Sheppard were: Peebles (22 K.), Bales (2~ K.), Reddick (45 K.), Swindel (l6 K.), Vecchio (12 K.). (All one way). Nr. Cribbie referred us to the fourth page of Exhibit #1, being a l-etter from E. Shiels, Senior Party Chief, Surveys and Plans Section, Central Region, to Mr. Peebles, dated the 4th day of October 1981, being a reply to Mr. Peebles' stage one grievance or August 27th, 1981, grieving the, then, designation of 3501 Dufferin as headquarters. The portion of Nr. Shiels letter referred to , is as folloHs: Page 8. IIIn Feb./S1 you elected for personal reasons to change your ~esidence to the Castleton area and advised Mr. Byblow, Head, Surveys and Plans of the change by memo dated 82 02 02. I understand that you also met with Mr. Byblow to discuss the matter and were advised that in accordance with previously established Ministry practice (Z. Byblow's memo of 77 12 20 and C.R. memo #22 attachment) that a redesignation of head- quarters to your new home at Cast1eton could not be justified in terms of projected workload and therefore that your new headquarters would be designated at the Central Office at 3501 Dufferin St., Dmmsview. This was confirmed by a memo to you from Mr. Byblow dated 81 02 04.11 Mr. Cribbie submitted that the principal concern of the Ministry was the maintenance of effective administrative control. He argued that if each Grievor was permitted to have new designated headquarters every time he moved, it would create an "administrative nightmare" in the planning of the work load. In saying so, h~ was referring to the situation where the employee's home was the , designated headquarters. Such a situation, he argued, would also have the effect of considerably adding to the cost of projects. ( Mr. Cribbie referred to the Award in OPSEU (G. N. Ross) and the Ministry of Transportation and Communications 14/82 (Jolliffe) where it was stated at p. 17: IIThere is merit l.n ~fr. 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 expense between their homes and their jobs.1I Mr. Cribbie suggested that the same reasoning applies in this case and I agree. At the same time, I agree with the further statement by Mr. Jolliffu at p. 17: "By the same token, it \wuld be inequitable to penalize them for being obliged to travel long distances to job sites, that being a burden . d b II other public servants are not requlre to ear . Page 9. The difficulty, with which we are faced, is to balance the equities. On the one hand, arriving at that distance which is a reasonable contribution on the part of the employee, and that contrioution the Ministry must make in order not to penalize employees being obliged to travel long dis~ance to job sites. In the Rose case, atvp. 17-18, Mr. Jolliffe observed: 'IIn our view the choice of a "headquarters" unrelated to the requirements of construction work is not a sati~factory solution. Patrol yards such as those at Winona and Beaver Dams are used by main~enance 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 testi- mony of !,lr. Smith and Mr. Illingworth that they were selected for the purpose of reducing travel claims, and the seiection had th3t effect on 181 (or 5l per cent) of employees, but 43 (or 12 pp.r cent) gained and for 129 (37 per cent) there was no change. The figures fail to suggest equitable results, although ther~ may be some cost-saving for the Ministry -- as long as few take advantage of the relocation allowances authorized." What we are faced with her~ lS a similar problem, as the varlOUS suggestions made by the parties for the choice of, Itheadquarters" have no vital relation to the requirements of the Grievors' work. What is clear, is that the choice of the Dufferin site, is in all essentials, a choice unrelated to the real requirements of the Grievors' work. It is mainly concerned with the neede of the Ministry. The six satellite "headquarters", being part of the con- ditional proposal made by the Ministry, while somewhat better, in that they reduce some of the more extreme disparitieb, are also largely unrelated to the requirements of the Grievors' work. The suggestion favoured by the Grievors, who work within the Region, that their homes be treated as "headquarters", does not take into account Mr. Jollifj!'s valid concerns, nor does the suggestion by the Grievors living without the Region, that some point on the Regional boundary, be treated as their "headquartersrt. Page 10. There is merit in Mr. Jolliffe1s suggestion, in the Ross case, att'p. 18: , I (6) There is no evidence on which this Board could devise a formula that would be equitable to both the Ministry and 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 parties should negotiate a better formula. It is suggested that the parties try to agree on what would be an appropriate contribution for an employec 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 ki10metres getting to work and spends 20 ( \ minutes of his own time doing it, then it is conceivable the parties might decide to compensate constr.uction employecs for any \ travel or time in excess of those figures, calculated from. the employee's residence. What the appropriate figures should be 15 a matter for inquiry and negotiation, not to be determined by h . II t 1 s Boa rd . When this matter was referred to the parties lito determine what headquarters designation \wuld be equitable to both parties" (Award p. 8), it Has because we did "not have sufficient evidence before us to determine Hhat the head- 'quarters designation be equitable to both parties....II. Should the parties be unable to accept our suggestions, we may be ultimately forced to do the best we can with the evidence presented to us. We \wuld rather. t1wt the resolution of the dispute have a more rational basis. One such basis \~as presented in the Ross case. Nr. Jolliffe's suggestion, at p. 18, poge 11 . while only an example. would create a rational basis for determining the contribution of the Grievors and the Ministry. There is nothing in the Agreement which requires the eloployees to live in any particular place within the Region and they ought not to be penalized for ~loing so. Where an employee chooses to live without the Region. the employee cannot expect the Ministry to make payments with respect to travel from the employee's home to the bvundary of the Region. However. from that point, there would have to be deducted from the actual distance travelled the employees con- tribution calculated on some rational basis. Although Hr. .Tolliffe was dealing with construction employees, much of what he stated has application to this cas~. The Grievors' job-sites are entirely beyond their control and I would find, fcr the most part, those locations would be dictated by priorities in the public need for improved transportation facilities. The argument made by Mr. Cribbie, based on Mr. Shields letter to Peebles of September 4th, 1981, is not supported. / \ The equities which must be recognized, on the facts of the case, 6re the employees' right to recompense for excess travel time and the MinistrY'8 right to expect some reasonable contribution from the employees, by way of their absorbing part of the distance between their homes or the Regional boundary and a work site. I do not think that we can, on the evidence before us. pick one of the alternatives. on any rational basis. If I was forced to, I would not pick 3501 Dufferin nor the Grievors' homes or the Regional boundary line (where certain Grievors reside outside the Region). These are the most inequitabie choices on the facts before us. I say nothing about the case of the other employees, whose homes are their headquarters, and we have no facts concerning them which would enable us to draw any conclusion applicable to this case. The six satellite headquarters suggested by the Hinistry, 1n its conditional proposal, because they create a greater flexibility, reduce the level of inequity created by the Dufferin aesignation. They suffer from the fact that they create a considerable disparity between the Grievors, which cannot be supported. The Grievors' second ~uggestion, that their headquarters be the named Patrol Yards or, in the case of those Grievors living outside of the Region, the boundary, similarly lacks any rational foundation, in that the Lontribution of the employee is unrelated to any logical criteria. I also was unpersuaded that there was any particular relation between the latter designations and the functions of the Grievors. . Page 12. We agree that we have not been furnished \-lith sufficient evidence to enable us to issue an award which is reasonably related to the criteria identified by Hr. Jolliffu in the Ross case. We are not happy about having to do Sat but we feel that \.,re must, once again remit the matter back to the parties in the hope that they will engage in a meaningful attempt to arrive at an equitable solution. Even if, despite our urgings, thc partics cannot agree on the contribution of the employees, and the Board must, once againt be re-convened, we will at least have more cogent evidence upon which to make a more rational decision, r)"tp,:! at Toronto this :,th ddY 01 Decpmbpr, 1988. m .tt. 4.t1l~ M.R. Gorsky, Vice-Chairperson ~ I.J. Thomson, Member G.A. Peckham Member