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Home My WebLink About1984-0554.Bonora.85-06-11- ..i ) -, ,$ ..#z 1;’ c / ‘..I, ,-, : c 554184 IN THE MATTER OF AN ARBITRATION Under ‘THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Between: Before: Before THE GRIEVANCE SETTLEMENT BOARD OPSEU (Angelo Bonoral and The Crown in Right of Ontario (Ministry of Transportation and Communications) For the Grievor: For the Employer: Hearing: R. L. Verity, Q.C. Vice-Chairman I. J. Thomson Member W. D. Shuttleworth Member M. I. Rotman Counsel P. W. Codner Staff Relations Officer Personnel Services Section Grievor Employer Ministry of Transportation and Communications May 3, 1985 -. 2 - DECISION In this matter, the Grievor, Angelo Bonora, alleged that he was improperly denied four hours travel credit pursuant to Article 23.5. The issue is whether the Grievor.was entitled to payment for travel time under Article 23.5 for work on a designated holiday. ., The Hearing proceeded primarily by way of an agreed statement of facts. The Grievor is empioyed with the Ministry as a Senior Construction Technician and is cl~assified as Technician 1 Construction. In April of 1984, he was assigned 'to inspection duties in the Ministry's Toronto area construction office. At 'that time, the Grievor's headquarters were designated as 3501 Dufferin Street and his assigned job location was a site in Mississauga. The Ministry authorized the Grievor to use his own motor vehicle in travelling the required 30 minutes from the designated headquarters to and from the job location. The Grievor is regularly scheduled to work 40 hours a week, 8 hours per day .Monday to Friday of each week. Normally, he is not scheduled to work on weekends or statutory holidays. Accordingly, the Grievor was not scheduled to work on Easter ,_ ::i .z ,. / .,.. i were C ited by the Parties: - 3 - Monday, April 23, 1984,, which was a legal holiday as listed in Article 47 of the Collective Agreement. However, on the Friday preceding Easter Monday, the Grievor was instructed to work Easter Monday and to use his personal motor vehicle in ,travelling from the,designated ,head- quarters to his job site within his 8 hour work day. The agreed statement of facts established that on Easter Monday, S the Grievor'worked for 7-112 hours and spent l/2 hour travel- ling between the headquarters and the job site. He was compensated by way of holiday payment as specified in Articles 19.1 and 19.2 of the Collective Agree- ment. However the denial of the 4 hour travel credit resulted in the filing of the present Grievance. The following Articles of the Collective Agreement "23.5 When an employee is required to travel on his regular day off or a holiday listed in Article 47 (Holidays), he shall be credited with a minimum of four (4) hours." "23.1 Employees shall be credited with all time spent in travelling outside .of working hours when authorized by the ministry." ,; i i - 4 - c _-. "21.1 There shall be no duplicat'ion or pyramiding of any premium payments or compensating leave provided by this Agreement." A Ministry Memorandum dated November 29, 1983 and signed by J. Smrcka, Manager Construction Office, purported to set out the Ministry policy regarding travel time on a Statu- tory Holiday. That Memorandum read in part, as fol~lows: " 2 . Travel Time on a Statutory Holiday i~mployees who are authorized to travel;on a Statutory Holiday will be credited with a minimum of 4 hours travel time provided the total time spent travelling plus total working time exceed 8 hours." In argument, the Union alleged that the Employer erred in its failure to abide by the clear language of Article 23.5 and to reimburse the Grievor with the minimum 4 hour tra- vel credit. Also, the Union alleged that the Grievor was paid 4 hours travel time on the Victoria Day holiday on May 21, 1984, and therefore the Ministry was thereby estopped from denying the merits of this Grievance. The Employer contended that it would have been improper to allow the travel credit in view of Article 23.1 and the Ministry's policy. In addition, it was argued that to allow the credit would be a violation of the non-pyramiding provisions of Article 21. 1 The Board is unable to agree with the Union's estop- pel argument. The Grievor was accorded the 4 hour travel credit on May 21 for.the,specific reason that management authorized the travel credit. Clearly, the evidence does not substantiate an estoppel claim. However, the Board is satisfied that the balance of the Griever's claim has merit. In our opinion, the wording of Article 23.5 is clear and unambiguous. That Article is a : specific provision which provides for a credit of 4 hours to an employ-ee required to travel either on that employee's regul ar day off or on a, holiday as specified by Article 47. See Tomasini and Ministry of Transportation and Communications 71178 (Adams). The evidence establishes that April 23, 1984 was a Holiday as specified in Article 47 - a Holiday on which the Grievor had not been scheduled to work, but was subsequently required to work, and in order to so, was authorized to travel to and from the job site. Havin,g regard to the provisions of Article 23.5, it is quite immaterial that the travel time occurred within the period of the Grievor's 8 hour work assign- ment. In our opinion, the provisions of Article 23.1 are inapplicable to the facts of the instant Grievance. That Article is concerned with Employee travel credits where travel ‘i - 6 - ( ,-- is undertaken outside of working hours and when authorized by the Ministry. Further, we do not agree that the benefit pro- vided,by Article 23.5 is pyramiding, which is specifically prohibited in Article 21. In ouropinion, the Ministry's memorandum entitled "Travel Time" is in conflict with the provisions of Article 23.5. Where there is such a conflict, the provisions of the Collective Agreement govern the Parties' relationship. i The facts of the instant grievance are clearly dis- tinguishable .from the facts in Haddock and .Campbell and the Ministry of Transportation and Communications, 104/80 (Linden). In that case, the Board dismissed two grievances claiming entitlement to travelling~time 'credits under 23.5. the Haddock grievance, t he travel was undertaken within an 8 In hour shift; whereas in the Campbell grievance travel was out- side the shift. The distinguishing feature in that desicion is that both grievors were scheduled to work on designated holi- days as part of their regular shift schedule. In the instant matter, the Grievor has already been paid on the basis o at the holiday rate hours credit in add l/2 hour travelling time on Easter Monday Therefore, to allow the Grievor the four tion to what has already been paid, would amount to duplication of payment. Such duplication is i ‘.Z ,, . -j- IV< i- prohibited under Article 21. c Accordingly, in allowing this Grievance under 23.5, the Board deducts from the payment monies already paid to the Grievor for ~the l/2 hour travel time at the Holiday rate. During the Parties' brief presentations, no evidence was adduced which established the precise quantum of compensa- tion paid to the Grievdr for his services on April 23. There- fore, the Board retains jurisdiction.in the event that the Parties experience any difficulty regarding the implementation of this Award and the appropriate compensation payable to the Grievor. Accordingly, this Grievance shall succeed on the terms specified above. DATED at Brantford, Ontario, this llthday of June, A.D., 1985. K -(. Verity, Q.C. - 'Vice-Chairman W. 0. Shuttleworth - Member