HomeMy WebLinkAbout1986-2508.Galloway.88-03-17 Decision
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ONTAFlIO
CROWN EMPLOYEES
GRIEVANCE
SETTLEMENT
BOARD
180 DI.*/OAS STREET WEST. TORONTO, ONTARIO. M5G IZ8. SUITE 2100
Between:
Before:
For the Grievor:
For the Emplo~er:
Hearing:
IN THE HATTER OF AN ARBITRATION
Under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
OPSEU (Steve Galloway)
and
The Crown in Right of Ontario
(Ministry of Transportation)
M.V. Watters - Vice-Chairman
J.D. McManus - Member
H. Roberts - Member
H. Sharpe
Counsel
Gowling & Henderson
Barristers & Solicitors
K. B. Cribbie
Staff Relations Officer
Human Resources Branch
Ministry of Transportation
January 14, 1988
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TELEPHONEr ~I61598. 0688
2508/86
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Grievor
Employer
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DEe I S ION
This proceeding arises from the grievance of Mr. Steven
Galloway dated January 19, 1987, the material part of which reads
as follows:
"STATEMENT OF GRIEVANCE - I grieve that the Ministry has
inequitably redesignated my
headquarters contrary to the
collective agreement.
SETTLEMENT DESIRED - That my headquarters be
redesignated to one of the
following places which are listed
in order of preference: 1) My
home in Grafton 2) Grafton Patrol
Yard 3) Port Hope Patrol Yard.
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(Exhibit 12)
The grievor, at all material times, was employed as a Senior
Survey Technician with the Ministry of Transportation and
Communications. This is a position which can entail significant
travel on the part of the employee as they may be called upon to
travel throughout the Central Region to attend to their work. It
is clear that employees within this classification do not
generally have a consistent work site at which they attend or to
which they report. More often than not, it appears that their
work is performed in the field. For this reason, they have
historically received a designated headquarters. This process of
designation has been contentious and has resulted in numerous
issues being brought before this Board. A history of the dispute
is well documented in the Wilcox award; G.S.B. 761/84 (Roberts).
We have also reviewed the decision in Peebles et. al., G.S.B.
1257/84; 1258/841 1259/841 1260/84; 1271/84 (Gorsky), to which we
were referred by counsel for the Union. The continuation of the
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problem discussed therein, and the parties' inability to reach a
consensus on the principles to guide the designation of
headquarters, led directly to the inclusion of present Article 38
into the collective agreement. We were informed that this
article, which is reproduced in its entirety below, was itself
the product of an arbitrated award of Professor Swan. .
The application of the policy vis ~ vis designation has
resulted in a lack of uniformity with respect to the class of
employee hereunder consideration. There are thirty-six (36) such
employees. Prior to this grievance, twenty-two (22) employees of
this group had their home designated as their headquarters, with
the balance having a headquarters located at the central Dufferin
Street office. It is unnecessary, for purposes of this award, to
review all of the background leading to this situation. It is
( apparent, however, that some of the employees in the former
category live in the eastern part of the region. The Employer
has been reluctant to change their headquarters in that many of
these employees have resided there for a considerable period of
time.
Prior to December 1986, the grievor lived with his family in
Whitby, Ontario. During this period of residency, his
headquarters was designated as Whitby notwithstanding that there
was no M.T.C. patrol yard at that 10caeion. When living there,
it was not unusual for the grievor to travel extensively in
conjunction with his employment. He testified that he had worked
in Stoney Creek, West Toronto, Beaverton, Brook1in, Lindsay, and
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Newmarket. It seems from the evidence that the grievor could
reasonably expect to be assigned work throughout the region,
although understandably, the heaviest concentration of projects
centred in Metropolitan Toronto and its environs. When his
headquarters was deemed to be at his home, the grievor's mileage,
travel time, and other related benefits were calculated from his
residence. He was, therefore, not called upon to contribute
personally to the cost of travelling to the work site. If, for
example, he was required to work in Stoney Creek, the grievor
would receive the appropriate mileage and travel time calculated
from Whitby. There did exist, however, a financial disincentive
for employees, such as the g~ievor, to commute daily if they were
stationed a long way from their home or headquarters. In such
case, they would only receive the lessor of a "stay-over
allowance" or mileage.
In mid-November, 1986 the grievor gave notice to the
Employer of his intention to move to the Town of Grafton in the
eastern section of the region. A telephone conversation
subsequently occurred between himself and Mr. Zen Byblow,
Head-Surveys and Plans, on November 25, 1986 with respect to such
move and the need to redesignate headquarters in accordance with
Article 38. While the grievor may have indicated a preference
that his new home be so designated, it ~s clear that a decision
was not made at that time as the grievor indicated a desire to
consult with his union steward. Because of his work schedule,
the actual relocation, and the onset of Christmas, the grievor
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did not get back in contact with Mr. Byblow as had been agreed.
It is equally clear that Mr. Byblow did not attempt to reach the
grievor on the subject. Rather, on the basis of lack of contact
with the grievor, he elected to send the letter dated December
17, 1986 which ultimately led to the filing of the grievance
presently before this Board. This letter designated the
grievor's headquarters to Ajax, Ontario. Subsequent to the date
of the letter, a meeting was held in Mr. Byblow's office whereat
the grievor and his union steward objected to the Ajax
designation. They also suggested sites such as Newcastle and
Newtonvil1e as viable alternatives to Ajax. These suggestions
were not accepted by the Employer.
While there was considerable discussion at the hearing as to
the adequacy of the consultation which occurred between the
( grievor and Mr. Byblow with respect to the redesignation, counsel
for the Union stated that she was not requesting the Board to
remit the matter back to the parties so that a more comprehensive
consultation could be held. The Union preferred that we assess
the equitability of the designation. We do not take issue with
this request, as in our estimation the real dispute between the
parties is whether the location was equitable in the context of
Article 38 of the collective agreement.
The letter of Mr. Byblow referred.to above reads as follows:
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TO: Mr. S~ Galloway
Technician Surveys
Date: 86 12 17
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Headquarter Redesignation
Following receipt of your notification of your change
of residence, your supervisor provided you with a change of
address form to be completed and returned, and also
requested that you telephone me regarding a change in
headquarters as a result of your residence change.
In our telephone conversation on Nov. 25/86, I informed
you that as a result of your residence change, your
headquarters would be redesignated and that I was consulting
with you regarding your interests and preferences on a new
headquarter location. You indicated that you would consider
and advise me.
since you have not responded, this will serve as notice
in accordance with Article 38 of the Collective Agreement,
that your new headquarters will be designated at the M.T.C.
Patrol Yard at Highway 401 and Brock Road in Ajax.
Also in accordance with Article 38, your new
headquarter designation is based on the following
considerations
that your former home at Whitby is no longer a valid
headquarter designation.
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that your new home at Grafton is too distant from the
central work place and projected work locations in
the surrounding Toronto area.
- that a new headquarters at the Central Office at
3501 Oufferin St. Downsview is the most convenient
location for the efficient conduct of the Ministry's
business for the majority of the time.
- that the new headquarter location is equitable to you
and the Ministry.
Therefore, notwithstanding that 3501 Dufferin St.,
oownsview is still the Ministry's desired location for your
new headquarters, in the interest of equitability to you,
the M.T.C. facility at Highway 401 and Brock Rd. in Ajax
being nearest to your former headquarters, will be your new
headquarters effective March 23/8~.
Please complete and return the Change of Address Form
(another copy attached) at your earliest convenience.
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A new Headquarter Designation form will be prepared and
issued upon receipt of your address information.
ZJB:ms
Z.J. Byblow
Head, Surveys and Plans
Central Region
3501 Dufferin Street
"(Exhibit '5)
At the hearing, Mr. Byblow gave evidence as to the reasons
for the decision taken. His testimony did not depart
materially from the considerations listed in the above-cited
correspondence.
Given the significance of Article 38 of the collective
agreement to the resolution of this matter, we reproduce it in
full:
ARTICLE 38 - HEADQUARTERS
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This 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.
38.2 A ministry may designate a headquarters when an
employee is initially appointed to a position, or
when a position is filled by an employee in
accordance with Article 4, Article 5, or Article 24
of this collective agreement. All job postings,
notices and offers in relation to positions covered
by this article shall include the designated
headquarters for the positi~n. This designation
shall be the location considered by the ministry to
be the most convenient for the efficient conduct of
the ministry1s business, having regard to the
ministry's projection of the location of the
employee's work assignments for a period of two years.
It is not a requirement that the designated
headquarters be a facility whose functions are
related to the work to be performed by the employee,
38.1
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38.3
38.4
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38.5
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and the employee's residence may also be designated
as his or her headquarters. The Employer will supply
to the Union, by December 30 of each year, a current
list of headquarters designations for employees
covered by this article.
By mutual agreement in writing between the ministry
and an employee, a new headquarters may be designated
for an employee at any time, and by mutual
agreement in writing between the ministry and the
employee, a temporary or seasonal headquarters may be
designated for the stated period, following which the
previously designated headquarters will be reinstated
unless it has been changed in accordance with this
article.
A ministry may change the headquarters of an employee
covered by this article, if:
(a) 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 has been designated
as the employee's headquarters ceases to
operate as a ministry facility; or
(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.
Where a ministry exercises its right to change the
headquarters of an employee otherwise than by mutual
agreement with the employee, the following procedure
will apply:
(a) The ministry shall first give notice to the
employee of its intent, and shall consult
with the employee to determine the
employee's interests and the employee1s
preferences as to the ~ew headquarters
location.
(b) The ministry shall determine the new head-
quarters location in a way which is equitable
to both the employee and the ministry.
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(c) The employee shall be given three (3) months
notice of the change in designation of the
headquarters.
38.6
Where it is necessary to identify which one or more
of a group of employees is to be assigned to a new
headquarters, the employees to be reassigned shall be
identified by considering the qualifications,
availability, and current location (home, closest
facility and work location). Where qualifications,
availability and location are relatively equal,
length of continuous service shall be used to
identify the employee to be reassigned.
38.7
Employees who relocate their residence 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 on relocation
expenses.
There is no dispute that the fact situation presented to the
Board falls within the parameters of Article 38. The grievor
was clearly one of a class of employees "who do not attend at, or
( work at, or work from any permanent facility in the course of
their duties". Given the nature of his position, there was
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therefore a need to designate a headquarters for purposes of
applying the allowance provisions of the collective agreement.
It is similarly apparent that the Employer had authority under
Article 38.4 (a) to change the headquarters as a consequence of
the grievor's change in residence from Whitby to Grafton. As
indicated above, the former location had previously been
designated as his headquarters. In exercising the aforesaid
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right, the Employer was obligated to comply with the procedure
established in Article 38.5. In consideration of the position
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taken by the Union, we are prepared to assume that the
appropriate notice was given and that the necessary degree of
consultation occurred. We are left with the threshold question
as to whether the Ministry determined the new headquarters in a
fashion that was "equitable to both the employee and the
ministry". The Board was informed that this was indeed the first
instance in which a redesignation of headquarters had been
effected because of a 'relocation of residence. The Union was
consequently, and understandably, eager to have some
interpretation as to the effect of Article 38.5 (b).
There was much discussion at the hearing as to the
artificiality of the concept of headquarters. Such is to be
expected, in that a degree of artificiality can be said to exist
whenever the headquarters is located at other than a permanent
( ministry facility at which the employee works or to which they
report. Clearly the designation of either a residence or a
facility with which there is no solid working relationship may be
depicted as being artificial. Notwithstanding this potential for
artificiality, Article 38, in clear language, permits such
designations to be made. Specifically, we note that Article 38.2
states that "It is not a requirement that the designated
headquarters be a facility whose functions are related to the
work to be performed by the employee, aud the employee's
residence may also be designated as his or her headquarters". We
have not been persuaded, therefore, that the existence of
artificiality is an influential factor in issues of this nature.
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to the Dufferin Street Office. The Union considered such a turn
of events as reflecting the interests of the employer. Its
position essentially was that the Employer should assume a
greater portion of the travel costs than would be the case with
the Ajax designation.
It was the Employer's submission that the redesignation was
equitable in all of the circumstances for the reasons listed in
Mr. Byblow's letter of December 17, 1986. The Employer further
argued that they should not be compelled to fully compensate the
grievor in the form of mileage and travel time with respect to
the extra travel necessitated by his move to Grafton. Counsel
emphasized that this move to the eastern part of the region,
which was of considerable distance from the heaviest
concentration of projected work, was voluntary on the part of the
(- grievor. It was stated that it would be inequitable to the
Employer's interests to require it to designate the new residence
as the headquarters for to do so would shift all of the monetary
burden to the Employer. The thrust of the argument was that the
grievor should share in the increased travel cost and that the
designation of Ajax accomplished this objective in a fair and
equitable way. The Employer did not consider any of the
grievor's preferred locations as being equitable when viewed in
the context of what site would be most-convenient for the conduct
of the Ministry's present and future business.
After reviewing all of the evidence and argument presented
at the hearing, it is the judgment of this Board that the
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It is apparent to this Board that issues of this nature
i cannot be resolved with mathematical precision. Nor do we intend
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to suggest that the answer to the dispute between these parties
could be found by simply selecting a midpoint between the former
headquarters and the present residence. Indeed, to adopt such an
arbitrary approach could result in inequities to either the
employee or the ministry. While evidence was presented on
certain alternate sites in this instance, we do not consider that
there is sufficient evidence before us to permit the Board to
decide on what would be an equitable headquarters taking into
account the interests of both parties. We therefore think it
preferable to remit the matter back for further discussion such
that a headquarters can be selected that more equitably allocates
the responsibility for travel costs. In summary, we construe
( Article 38 as requiring a sharing of that expense in the
circumstances of this case.
It is obvious that a redesignation to a headquarters east of
Whitby will result in greater expense to the Employer, especially
if the grievor is assigned to work west of Toronto. We note in
this regard that the Employer has a right to change a
headquarters pursuant to Article 38.4 (c) if "the employee is
assigned to a work location or work locations at least forty (40)
kms. by road from his other existing hQadquarters, 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". Such provision could have future application were the
grievor to be given that type of long term assignment.
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As indicated earlier in this award, twenty one (21) other
l employees of the class under consideration have their homes
designated as their headquarters. Some of these individuals live
in the same general area as the grievor. While uniformity of
treatment may be desirable, the individual facts of these cases
may differ. For example, we were informed that Mr. Orr has lived
at Hastings for a considerable period of time and that the
Employer is hesitant to interfere with a long standing
headquarters. We do not believe it appropriate to impose an
obligation on the Employer to designate to the residence on the
grounds that twenty one (21) of thirty-six (36) employees have
been so treated over time. It is apparent to us that many, if
not all, of these designations occurred prior to the inclusion of
Article 38 into the collective agreement. More significantly,
( should we do so, this Board would be ignoring the clear dictate
of the collective agreement, that is, that the new headquarters
should be equitable to both parties. There is little to assure
us that the imposition of such an obligation would satisfy the
contractual objective. Similarly, we are not inclined to order
that the Employer provide the grievor with a ministry vehicle for
travel as suggested by counsel for the Union. Such an order goes
well beyond the relief claimed in the grievance. Additionally,
such a step would not likely be cost eff~ctive in the long term.
For all of the above reasons, the grievance is allowed to
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the extent that we find the designation of headquarters to Ajax
to have been inequitable. The Board will retain jurisdiction
should the parties fail to arrive at an equitable resolution of
the headquarters issue. Similarly, we reserve the authority to
deal with the question of compensation should the grievor's work
site change materially prior to the establishment of an equitable
designation.
DATED AT TORONTO ONTARIO THIS 17th DAY OF
MARCH,. 1988.
frf). v. Wa1ilt.L:).
M.V. Watters - Vice Chairman
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H. Roberts - Member