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HomeMy WebLinkAbout1976-0104.Union.77-04-20_- Ontarl0 104/76 --- cr,owt4 EMPLOYEES 416 9644426 suite 405 GRIEVANCESETTLEMENT 77 Bloor Street Vest EOARO TORONTO, Ontario M5S lM2 'IN THE. MATTER OF AN ARBITRATION Under The CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD Between: Ontario Public Service Employees Union And Ministry of' Transportation & Communications Before: D. M. Beatty Chairman J. W. Henley Member D. Anderson Member For the Grievor: Mr. J. A. Millard Ontario Public Service Employees Union For the Employer: Mr. N.-H. Pettifor, Staff Relations Supervisor Ministry of Transportation & Communications Hearing: March 28, 1977 Suite 405, 77 Bloor Street West Toronto, Ontario 2. The grievance that has been filed with this Board requires us to perform the relatively routine and straight- forward task of placing an interpretation upon the words of Article 29 of the collective agreement that they will reasonably bear. That article provides: ARTICLE ‘29 ~- ‘TiXE ‘CREDITS ‘h’BILE ‘TRAVELLIiVG 29.1.1 For pay purposes, eqZoy~es shall be credited with all time spent in travelZing when authorized by management. Such time w-i12 be computed as follows: 29.1.2 When travel is by public carrier, from one 111 hour before the scheduZed time of departure of the carrier until ens ~. (1) hour after the act& arrival at the destination. 29.1.3 When tnzveZ is by a&omobiZe and (a) when t+ employee travels directly from his home w&l he reaches his destination, from the assigned hour of departure from the destination w&i2 he reaches home; (b) when the employee reports to his pike of employment before proceeding to txvel, from the time he leaves his pZace of empZo,yment u&i2 he reaches his destinatwn, &C t that compensation OiZZ not ‘be paz *T for the time between the hours of eleven p.m. (11:OO p.m;.I and the reguk starting time of the empzoyee when sleeping acconnnodation is provided. 29.2 AZZ travelZing time shall be compensated at the enployee’s stmight time rate provided.~~ that, when an employee is required to tnzveZ on his day off or a holiday he shaZ2 be compensated atthat rate for a minimum of four 14) hours. More specifically, and as described in their agreed statement of facts, the single issue that has been placed before this Board is: 3. whether or not those empzoyees of the Ministry represented by the Union, who are paid a daily comm&ing allomnce in accordance with Ministry administrative practice, are also entitled to “TmveZ Time” as described in Article 29. In presenting this joint submission to the Board the parties had, prior to coming before us (and in a manner which from our perspective they have done with a pleasant regularity), also agreed as to certain other matters, which were of immediate relevance to the disposition of this grievance. In the first place the parties were of the common view that an employee would be entitled to claim time credits for travelling under Article 29.1 only when he was authorized to travel during periods that fell outside of his regular working hours. Furthermore it was agreed between them that Article 29 had no application to the time an employee wasp required to travel from his home to his designated employment headquarters. That is to say, the time spent by an employee "travelling to work" in the normal circumstances was not intended to be compensated by Article 29. However the parties also shared the view that Article 29 was intended to apply, by its terms, at least to those circumstances in which an employee was required to travel, outside of his regular hours, either from his home to a destination of work which was other than his head- quarters or regular place of employment, or from his regular place of employment, where that was a Ministry facility, to some other work destination. Thus, it was conceded by the employer that under its present practice and policies, it already allocated .-.._ 4. to its employees the requisite time credits when they are required to travel from a Ministry facility which is their employment headquarters to some other work destination in their off duty hours. Similarly and in addition the employer admitted that time credits'are presently allocated'to an employee who is authorized to travel outside of his regular working hours, from his home to some place of business other than his regular employment headquarters. However, and what is in dispute between the parties is whether the employer is similarly obliged in that instance when an employee is required to travel, outside of his regular working hours, on a regular and routine basis,to some place of work from their home when the latter is designated by the employer as being their regular place of employment or headquarters. Put somewhat differently the sole issue before this Board is whether those employees, who commonly fall within a group of persons who work in the Ministry's construction and survey staff~on various construction sites, and who have, for a variety of reasons had their homes designated by the employer as their headquarters, or place of employment, are entitled to the time credits provided in Article 29 when they routinely travel, between their homes and their 'work or job destinations outside of their regular working hours. So described, the resolution of this issue, is as we have earlier noted a 'relatively simple and straightforward one. Succinctly, and as we have repeatedly advised in our earlier awards, this Board must, where it can do so, give effect to the 5. clear and unambiguous language of the agreement to which the parties have manifested their consent. Put somewhat differently we cannot, in the face of clear language in the collective agreement to the contrary, add to or derogate from the expressed rights and obligations stipulated by the parties~ simply on the basis of our own reservations with the merits or wisdom of particular provisions of the agreement. Nor, as'the employer implicitly urged us to do, can we refrain from giving effect to the clear language of the agreement simply because this particular Ministry may, in the circumstances described, have already.instituted its own policies for remunerating such persons by means of a commuting allowance. Indeed, that is true however much we may sympathize with the reasonableness or the merits of the employer's internal practices and policies. Very simply such policies and payments are in the nature of ex gratia allowances, unilaterally promulgated by this Ministry, and cannot be_allowed to supersede or derogate from the obligation assumed by.the signatories to the collective agreement. In the result, the fact that the employer presently compensates such persons by means of a commuting allowance when they are required to travel more than 15 miles between their homes'and the work location, cannot derogate from whatever rights those same persons are entitled to by virtue of Article 29. In formulating the issue before us in such a manner, the resolution of this grievance falls to be determined by the familiar formula of plumbing for an interpretation of Article 29.1 that its language will reasonably bear. So directed we are of the conviction that by its plain terms Article 29.1 6. is wholly applicable to the circumstances of the instant grievance and requires the employer to credit an employee, whose home has been designated as his headquarters or place of employment, for all of the time he is authorized to travel, outside of his regular hours, between his home and his various work locations. Moreover, in our view, Article 29 is fully applicable, in the circumstances described; -regardless of the distance travelled by the employee. That is to say, when persons whose homes have been designated as their employment headquarters are required to travel, pursuant to the modes described therein, from their homes to some other job site.or work location in periods other than their regular working hours, they are, on our reading of Article 29 "travelling when authorized by management" , and thereby entitled to be credited for all time so spent. In other words we are of the considered opinion that when this Ministry offers, to their employees, as it does, the option of either living, at the employer's expense, at the work site itself or of travelling on a daily basis from their home, as their designated employment headquarters, to the location of their work, it has explicitly authorized the time spent travelling~to the work destination if and when the employee chooses that alternative. In short, we reject the position advanced by the employer, that because the decision of which of these two alternative modes of working at job sites located away from one's employment headquarters is made by the employee, rather than the employer, that the.employer has not "authorized" the employee to travel in those 7. circumstances. To the contrary, in our view, the presentation of these alternatives to the employee, simply means that both of these modes of reporting for work are in fact authorized by the employer. That is to say and to advert to the accepted dictionary meanings of the term "authorized", once the employer asked the employees in question, whose homes had been designated as their employment headquarters, to choose between either living at the work location or travelling to and from that site from their homes, it expressly "sanctioned", "countenanced", gave its "permission", and "invested" them with the "requisite authority" to select either alternative. In short and in proceeding in a such manner, the employer "authorized", or permitted those persons to travel outside of their regular hours,from their designated headquarters to their work destination. In those circumstances, on our reading of its terms, Article 29.1 requires the.allocation of th~e'time credits. Moreover, such a conclusion is, in one sense, consistent .,with the employer's own practice, conceded above, in which it -._ ;.:i+ allocates the relevant time credits under Article 29 to an employee who is required to travel outside of their regular working hours from a Ministry facility to a particular work site, where the former is designated as the employee's employment ._, headquarters. That is to say we are unable to perceive any language in Article 29.1 which would support.the distinction urged upon us by the employer. To the contrary and regardless of whether an employee's employment headquarters is his home, as in the case before us, or a Ministry facility, Article 29.1 obliges the employer to allocate time credits for the period of time that is required to travel between that place and the actual work location. In our view the fact that the employer itself already credits employees with the time spent travelling, outside of the regular working hours,between their employment headquarters and their place of work when the former is a Ministry facility, supports our interpretation that Article 29 requires a similar response when the employment headquarters is, at the employer's designation, the employee's own home. Although, in the face of what we have characterized to be clear and unequivocal language, we have described the resolution of this particular grievance as being relatively simple and straightforward, we would readily concede that the application of this award to and the implementation by this Ministry may have serious and profound implications for it and its employees alike. Very simply, and as the employer eloquently argued before us, the present policy, which is nowhere to be found in the collective agreement, of paying persons, whose homes have been designated as their employment headquarters,a commuting allowance when they are required to travel in excess of 15 miles is the product of several years of experience in the Ministry as well as of suggestions made by the employees themselves; and is intended; with respect to the particular group of employees described above, to further their expressed ambition and ability to live with their families throughout the work week. Whether such a Ministerial initiative, both with respect to the designation of an employee's ,home as his employment headquarters and with respect to the payment of the commuting all~owance, must or should coexist with a contractual 9. requirement such as Article 29, is not for this Board to decide. As noted at the outset, our jurisdiction is restricted to considering the terms of the agreement and not to assessing the reasonableness of an employer's internal policies. Neverthe- less, where, as here, a Ministry has attempted in good faith and in a reasonable manner, to respond to a particular and unique employment situation so as to alleviate the expressed concerns of a specific group of its employees, the wisdom of and need for negotiating an all encompassing; omnibus clause such as Article 29, may appear to be less compelling than it otherwise might have. Indeed it may well be that in drafting such provisions the negotiators should presumptively refrain from treating the.public service as a monolithic and uniform structure, and give effect to the acknowledged diversity of the employment relationsfiips with which they are dealing sol as to provide particular provisions applicable to specified employment situations where they are warranted. Failure to do so may well result, as in the present circumstances, with other more serious consequences befalling many of those employees for whom the negotiated clause was intended to benefit. Indeed, it is that same failure by the bargaining agent to fully ass&s and particularize the anticipated,costs and benefits of pressing a grievance before this Board which could, as in the present case, well result in a majority of employees having.to suffer and endure the "fruits" of a "successful" award that has been pressed by a minority of its members. 10. In the result and for the reasons given, we must conclude that those employees who travel to a work location from their homes, when the latter are ~designated as their employment headquarters, outside of their regular working hours, are entitled to claim the benefit of the time credit specified in Article 29 for any period they are so travelling and regardless of the distance travelled. While we would expect that this determination as to the proper meaning to be applied to Article 29 will allow the parties to resolve the individual grievances that gave rise to the complaint before us, we will remain seised of this grievance with respect to its implementation for thirty days following upon its release. In addition, and with respect to any individual grievances that may be subsumed under and governed by the principles articulated in the present award, we would direct the parties, as to the matter of what amount of compensation may be due and owing to those grievors, to our earlier award in'Re'Ont&o PubZic Service Emplogees ‘Union and ~Ministry ‘df ‘the ‘Attorney Genera2 71/76 wherein we stated: While it is, in our view, clear that the employer failed to conply with the provisions of Article 10.3 throughout the period from January 26, 1976 until July 12, 1976, we do not believe that these enpzoyees, who initiated their complaint only on May 25, 1976, my properly claim relief throughout that period. To the contrary, and to hoZd otherwise, would be to inppoperly penalize the eqloyer for the breach of an agreement of which it ms not aware. Thus, where as here, the breach of the agreement is in the nature of a continuing one, boards of arbitmtion have consistently limited an enpbyee’s right to claim dmnages for the breach of the agreement to the period of time within which it was pemissible to fiZe his grievance. ore Union- Gas ‘Co. 'of ‘Cada ,Limited (19721, 2 L.A.C. (Zdl 45 (Weatherill). 11. Re.Au~matic'Scra,,Machine'Products Ltd. f1972), 23 L.A.C. 396 (John&ml. 'R@'iVati&Z 'Atiti'Rci&ititi@ 'Wizif~Ot&riz~Co. 119671, 18 L.A.C. 326 Palmer). In the result, and for the reasons given this grievance must succeed. Dated at Toronto this 20th day of April 1977. I co- J. W. Henley Member I co- D. Anderson Member