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HomeMy WebLinkAbout1984-0555.MacArthur.86-03-19IN THE MATTER OF AN ARBITRATION Under . THE CROWN EMPLOYEES COLLECTIVE BARGAINING “ACT Before THE GRIEVANCE SETTLEMENT BOARD Between: OPSEU (A. W. MacArthur) and Grievor The Crown in Right of Ontario (Ministry of Trampxtation and Commmications) .’ Employer M. R. Gorsky J. McManls F. O’Tcole Vice-Chairman Member Member Fa the Crievor: c For the Employer: Hear inE M. Rotman Counsel Rotman, Zagdanski Barristers & Solicitors M. Fleishman Law Officer Crown Law Office, Civil Ministry of the Attorney General July 19, 1985 -. \ .y ) ‘Pi _.’ ..r. DECISION C' The Grievor, A. W. MacArthur, who is classified as a Technician-I-Construction, filed a grievance on May 7, 1984, as follows: 'I grieve that I have been deait with in a manner that contravenes Article 19 and 23 of the collective agreement, but not exclusively." and claim: "That'1 be compensated in accordance with Articles 19 and 23 for all the occasions where a contravention has occurred"; Articles 19 and 2: of the collective agreement are as (-7 L-. follows: ARTICLE 19-HOLIDAY PAYMENT 19.1 Where an employee works on a holiday included under Article 47 (HolidaysI, he shall be paid at the tale of !w (2) limes his basic hourly rale for all hours worked with a minimum credit 01 seven and onequetier (7-l/4). eight (9). or the number 01 regularly scheduled hours. as applicable. 19.2 In addition to Ihe payment provided by Section 19.1. en employee shall receive either seven and one-quaner (7.114) or eight (8) hours pay af applicable al his basic - hourlv rale or comoensalina leave 01 seven and one- 19.3 \ 'L 19.4 19.5 19.6 qua&r (7;1/4) or eighl(9) h&s as applicable, provided the employee opts lo1 compensating leave prior 10 Ihe holiday. When a holiday included under A&e 47 (Holidays) CC+ tides wilh an employee’s scheduled day 011 end he does no1 work on that day. the employee stpll be endlled lo receive anolhet day 011. dny compensaring leave accumulated under seclions 19.2 end 19.3 may be taken ofl al a lime mutually agreed upon. Failing agreement. such lime off may be taken in conpnclion with (he employee’s vacalion leave or regular day(s) 011. Any compensating leave accumulated unoer seaions 19.2 and 19.3 in a cale?dar year which is not used belore March 31 01 me lollowing year shall be paid al Ihe rate iI was earned. Elleclive March 1, 1978. Ihe Marcn 31 date may be extended by agreemen! a! Ihe local or ministry ,*“*I. No!wilhstandmg anything in Anicle 19, employees who ace in c,assihcam”5 assigned (0 Schea”ie 6 End wno are required 10 work on a holiday included in Article 47 (Holidays) shall receive equivalent lime oll. ARTICLE 23-TIME CREDITS WHILE TRAVELLING 23.1 Employees Shall be credited with all time spent in travel- ling oulside’ol working hours when euthOdZed by the ministry. 23.2 When travel is by public carrier. time will be credited from one (1) hour betore me scheduled lime 01 depanure Of [he carrier until one (1) hour alter lhe Xlual UllYal 01 the carrier at Ihe deslinatlon. 23.3 When travel is by automobile and the employee IravelS directly from his home or place 01 employment. lime, Will be credited from the assigned hour 01 depaflure until ne reaches his deslinalion and lrom Ihe assigned houf 01 depanure from the deslinalion until he reaches his hOme or place 01 employmenl. 23.4 When sleeping accommodalion is provided. lhe hours be,“,een eleven (1 ,:oO) p.m. and Ihe rb~“lar Sl=“l”g ll”X 01 Ihe employee shall no! be CredIted. 23.3 When an employee is required 10 travel on his regular day 011 Or a holiday Wed in Article 47 (Holidays). he shall be credited with a minimum 01 lout (4) hours. 23.6 All IreveIling lime shall be paid al Ihe employee’s basic hO”rly We or. w”e,e “~lu.Sl,y agreed. by Co”pe”Sa,l”g ,*a”*. .~. ..1 i 2 The parties filed fan Agreed Statement of Fact which is as follows: 1. 2. 3. . 4. s. 6. 7. 8 .~ 9. m THE MATTER OF A GRIEVANCE BEFORE THE GRIEVANCE SE~ENT Ba4P.D BETWEEN MR. A. W. Mac.4RTKLTR AID TEE CROWN Ih' RIGHT OF ONTARIO/MINISTRY OF TRANSPORTATION AND CPXLI'NICATIONS, THE PARTIES AGREE THAT: The matter is properly before the Board and the Board has ju:isdiction to hear this matter The griever drove his ovn automobile to travel to and from work and not a Government automobile The griever on the Friday, prior to the day in question, was instructed to travel to and from his headquarters to~his job site within his eight-hour work day. It is agreed that the griever was not to be paid for travelling from his home to headquarters but that he was authorized to travel for the period of time specified in paragraph 8 hereof bettieen his headquarters and his specified job location. Mr. MacArthur is employed by the Central Region of the Ministry of Transportation and Connnunications Mr.'Mac4rthur is employed by the Ministry as a Senior Construction Technician classified as Technician 1 Construction and at the material time of this grievance, he was assigned to inspection duties in the Toronto Area Construction Office of Central Region Mr. Mac4rthur's'headquarters were designated as Highyay 10 and 401. His job location was Highway 427 and Morningstar Drive in Mississauga Mr. Mac4rthur was authorized to travel 50 minutes per day being the time required to travel from his designated headquarters to the job location and return. On Monday, April 23, 1984, a holiday listed in Article 47~ Of the Collective Agreement, Mr. PlacArthur was requested to work a total of eight hours including his travel time. Ne travelled from hi.5 designated headquarters to the job location and back withil? the eight hours he was requested to work on that day. 3 9. He received payment for this day in accordance with (cont'd) Article 19 of the current Collective Agreement with respect to Working Conditions He also claimed a credit of 4 hours in accordance with Article 23.5 of the same agreement, vhichves denied to him by the Ministry .and is the subject of his grievance DATED at Toronto, this . 14 day of /G.+ 1985 Counsel also agreed that the Grievor is a Schedule 4 employee, and, accordingly, normally worked a forty hour week with a normal work day of eight hours, from 8:00 a.m. to 5:00 a.m., Monday to Eriday. It was further acknowledged that, in the winter months, the normal working hours are 8:OO a.m. to 5:00 p.m. and that during the summer months the start and finish times for daily work varies depending on the nature of the construction involved and on who is assigned to inspection duties. It was also verbally acknowledged that Exhibit 3 was in effect at the time the grievance was filed. The paragraph of the memorandum which is in issue in this case is paragraph 2, which is as follows: 2. Travel Time on a Statutarv Fiolidav Employees who are authorize6 to travel on a Stztitory iioliday tillbe crr?i:ed tith a rninirncrn of 4 hburs travel tine pzoti<ed the toal time spenttravelling ~1~s tota! woridng time exceed 8 hours. 1 4 .Counsel for the Union relied on d number of cases which ("' he argued were,~in all material respects, identical to the one before US. The first case relied upon by the Union was that of Bonora and The Ministry of Transportation and Communication, 554/84 (Verity). In the Bonora case, the Grievor alleged that he had been improperly' denied four hours travel credit pursuant to Article 23.5 of the collective agreement and the issue was whether he was entitled,to payment for travel time under the latter Article for work on a designated holiday. The grievor in the Bonora case was also employed by the Ministry as a Senior Construction Technician, and was class- ified as Technician-I-Construction. The grievor in the Bonora~ case. c was,'in April.pf 1984, assigned to inspection duties in the Ministry's Toronto Area Construction office, his headquarters being designated as 3401 Dufferin Street and his assigned job locationwas a site in Mississauga. The Ministry authorized the grievor, in that case; to ~' use his own motor vehicle in travelling the required thirty minutes I between the designated "headquarters and the job site." As, in this case, the grievor in the Bonora case was regularly scheduled to work a forty hour week, eight hours per day, Monday to Friday of each week. Normally, he was not scheduled to \ work on weekends or statutory holidays, and was not scheduled to work on Easter Monday, April 23, 1984, which was a legal holiday as listed in Article 47 of the coilective agreement. The only factual differences between this case and the Bonora case are the names of the grievers, the location of their headquarters and the fact that in the Bonora case the travelling time permitted from the designated headquarters to the job location was thirty minutes instead of the fifty minutes allowed in this case for"trave1 from [the] designated headquarters to the job location and return." - ~. ,-'\ "4, .i 7 i.:.' '. As in this case, the grievor in the Bonora case was instructed to work Easter Monday and to use his personal motor vehicle in travelling from the designated headquarters to his job site within his eight hour work day. On Easter Monday, the grievor in the Bonora case worked for seven and one-half hours and spent .one half-hour travelling between the headquarters and the job site. In the instant case, the Grievor travelled from his designated head- quarters to the job location and back within the eight hour; he was requested to work onEaster Monday. In both this case and the Bonora case, the grievors were compensated by,way of holiday payment as cy, spedified in Articles 19.1 and 19.2 of the collective agreement, but were denied four hour travel,credit which, in both cases, resulted in the filing of grievances. At p.3 of the Bonora case, reference was made to the provisions of Article 23.5 of the collective agreement, .which provides that an employee required to travel on his regular day off, or a holiday listed-in Article 47, shall be credited with a minimum of four hours. Reference was also made to Article 23.1, which provides that employees shall be credited with all time spent in travelling I\. outside of working hours, when authorized by the Min'istry. At p.4,of the Bonora case, reference was made to Article 21.1 of the collective agreement which provides that there will be "no duplication or pyramiding of any premium payments or compensating leave provided by this agreemen:." Reference was also made to Exhibit 3, in this case, and particularly to paragraph numbered two of that Exhibit. In both cases, the argument of the Union was the same: it alleged that the Employer erred in failing to abide by the language of Article 23.5, which was said to be clear, and was , i ..’ I---. 7 " i; 6 !' said to require the Employer to reimburse the grievers with the minimum four hour travel credit. In the Bonora case, there was an additional argument, which was not raised in this case, based on the Ministry being estopped from denying the merits of the grievance because it had, allegedly, paid four hours travel time on the Victoria Day holiday on May 21, 1984,to another employee. As in this case, the Employer in the Bonora case contended that it would be improper to allow the travel credit claimed in view of Article 23.1 and the Ministry's policy. The further (1~ argument,common to both cases, was that to allow the.credit would be a violation of the non-pyramiding provisions of Airticle 21. Counsel, for the Ministry did not take issue with the position of Union counsel that the factual situations of this case and the Bonora case were, in all material respects, the same for the~purpose of rendering a decision. Counsel, for the Employer, however, argued that the;interpretation arrived at the Bonora case was "clearly wrong" and ought~.not. to be followed. A unanimous Board, in the Bonora case, accepted the Union's position ~that Article 23.5 was clear and unambiguous, that it was, "a specific provision which il provides for a credit of four hours to an employee required to travel either on that employee's regular day off or on a holiday as spec- ified by Article 47." (Bonora case p.5) Reference was made to the case of Tomasini and Ministry of Transp.ortation and Communications 71/78 (Adams). It is evident that the board in the Bonora case viewed the Tomasiticase as standing for the principle enunciated by it. Counsel for the Employer argued that the Tomasini case was wrongly viewed by the Board in the Bonora case. He noted that, in the Tomasini case, the Grievor was a Schedule 6 employee who was subject to Article 7.3 of the collective agreement, 7 /-’ on a normal hours of work schedule of a minimum c If thirty-six and one- TV. quarter (36 l/4) hours per week. Such an employee has no maximum number of weekly hours. He submitted, that it is not possible to apply the provisions of Article 23.1 to such an employee. This was stated to be so, because there is no maximum number of weekly'hours provided ~for in the case of such an employee, who cannot be deemed to be "travelling outside of working hours." Counsel for the Employer argued that as the Grievor in this case and in the Bonora case were Schedule 4 employees, who normally worked a forty hour week, there was no reason for Article 23.1 of the collective agreement not CT‘ being applied in their case. Counsel for the Union pointed out that counsel for the Employer, in the Tomasini case,. argued (at p.3) that no portion,of Article 23 had any application because of the fact that Article 23.1 might have no application to Schedule six employees, who were required to travel on a regular working day, because there were no maximum number of weekly hours that applied to them. At page 6 of the Tomasini award it is stated: i -"'The Board is of the opinion that the grievance must succeed. The wording of the collective agreement is quite -. speclrlc, and makes no exception for Schedule 6 employees. When an employee is required to travel on his regular'day off, and the grievor was so required, he is,to be credited with a min- imum of four hours. The fact that 23.1 may have no application ' to Schedule 6 employees who are required to travel on a regular working day because th'ere is no maximum number of weekly hours that applies to them is no reason to conclude that the entire ar- ticle has no a?plicrtion to them. Similarly, the fact that there is some difficulty in making a compilation under Article 23.6 is an insufficient reason for concluding that no compilation can be made. In our view, the parties should be able to agree to a a reasonable period of work time preceding the regular day off (i.e. a monthly) providing his representation on which tiavel occurs for the purposes of calculating the employee's average number of neekly.hou,rs from which a compilation under Article 23.6 can be made." ,lective Agreement, In reviewing the provisions of the Co1 counsel for the Employer stated: Article 19.1 provides that an employee 1. holiday i would be / who works on a ncluded under Article 47, as the Grievor did in this case, entitled to be paid at the rate of two times his basic hourly i rate, in this case, for eight hours,being the number of regularly scheduled hours. In addition to the payment provided for by section 19.1, the employee is to receive eight hours at his basic hourly rate or'compensating leave for eight hours if he exercises this option prior to the holiday, as provided for in Article 19:2. 2. Article 23 must be looked at in its entirety and Article 23.5 cannot be looked at in isolation:-~-- 3. There are two requisites to,payment to an employee for tr~avelling time pursuant to Article 23.1: i (a) The employee must travel outside of working hours and (b) The travelling must be authorized by the Ministry. 4. Article 23.5 deals with the specific case of how payment is to be made when an employee is required to travel on a holiday as listed in Article 47. 5. Where the two prerequisites provided for in Article 23.1 have been complied with and the employee is required to undertake such travel on a holiday as listed in Article 47, then, and only then, must~the employee be credited with a minimum of four hours. It was .._ ,submitted that there s nothing inconsistent ab : reading the two sr * * Articles together. In the case of Bateman and the Miriistry of ~Transporation and Communications, 2/77 (Prichard), the jurisprudence relating to whether an award of another panel of the board should be accepted is reviewed. At p.O-10 of the award it is stated: "Therefore, we are of the view that this panel of the Board should not accept or advance a wholly contradictory interpretation of the relevant provisions of the collective agreement in the absence of a demonstration that the interpretation.arrived at by an earlier panel is "clearly wrong" (2 ?C.G xd. (19731, 2 L.A.C. (2dl 143 (Rayner)). That is to say we are of the conviction that where one panel of this Soard has adopted an interpretatioq of a particular clause in the agreement, the parties can not be permitted and should not be encourased to relitigate that determination unless the prior award is manifestly erroneous. Were it otherwise and were'this panel, or any other, t0 simply disregard earlier determinations made by this Board, the Parties would be precluded from'ever being able to rely upon our decisions with . any sense of certainty or finality, To the contrary, such a Practice would actually encourage an unsuccessful party in One case to seek such further hearings beisre different Panels of this Board in the context of other grievances until such time as it. secured a result it considered j&t and proper, Keedless to say this Board does not intend to Pursue such a policy. Rather, both conrmon sense and the arbitral jurisprudence recqnize thzt if issues between the parties are, pursuant to Section lg OT :.5+ crckm ID1cL'e6s cJI.!ecciYe aa=-ei,Tino AC=, to receive a final and binding determination, the parties must accept, in the first insrance and s;lbjecC to judicial review the interpreta;ions placed on their agreemeni by this Soard. In the event those interpretations are -nacw=ble to ei-ther or both of the parties their recourse for relief. lies in the negotiation of the succeeding collective agreement and not by way of the re-adjudication of the sme issue before a different panel of this 5car3. ,-, 10 The parties also referred to the case of Haddock and Campbell and the Ministry of Transportation and Communications, 104/80 (S. Linden). In that case, the board dismissed two grievances claiming entitlement 'to travelling time credits under Article 23.5. In the Haddock case, travel was undertaken within an eight hour shift; in the Campbell case, travel was outside of the shift. It is noted, in the Bonora case, at p.6: "The distinguishing feature of that decision . is that both grievors were scheduled to work on designated holidays as part of their regular shift schedule." Counsel for the Employer interpreted Article 23.5 as applying solely to cases where an employee travelled outside of working hours as is provided for in Article 23.1. Counsel for the Employer also submitted that the payment at the rate of twice the Griever's basic .hourly rate for eight hours, as provided'for in Article 19.1 and the payment of eight hours pay at the ~~~~~~~ applicable basic hourly rate, pursuant to Article 19.2, both of which' were received by the Grievor, when added to the payment provided for under Article 23.5, would amount to a prohibited "duplication or ( pyramiding of any premium payments . . . provided by this agreement" as provided for in Article 21.1. In the Bonora case, this issue was dealt with rather shortly at p.6 where it was stated: "Further, we do not agree that the benefit provided by Article 23.5 is pyramiding, which is specifically prohibited in Article 21." 6 11 Unfortunately, the jurisprudence of the Grievance Settlement Board as to the circumstances when Article 23.5 will apply is somewhat unclear and confusing. Nevertheless, I believe the jurisprudence can be clarified, if not reconciled: In the Tomasini case, Article 23.5 is said to apply even though Article 23.1 might have no application to an employee. In that case, the grievor, being a Schedule 6 employee who had no maximum number of weekly hours, was no bar to the application of Article 23.5, if he was required to travel on his regular day off. ,Having~ so decided, there could be no difference in the result if the grievor in the Tomasini case was required to travel on a holiday listed in Article.47. Mr. Adams, in Tomasini, did not explaid'why he con- cluded that Article 23 dealt with cases where employees were authorized to travel both inside and outside,of working hours. The only specific reference as to which employees are covered by Article 23 is found in Article 23.1, which only refers to employees travelling outside of working hours. If Article 23 is to be interpreted as applying to employees travelling inside of working hours, such a conclusion must be arrived at by inference from the context. Mr. Adams, in the Tomasini case at p.6, did so by taking the word "employee" to be specific and to include all employees. In the absences of an exception being provided for in the agreement, it did not matter that Article . 23.1 did not apply to the employee. While it would appear that Mr. Linden,, in Haddock and Campbell (eat p.3), agreed with.the conclusions reached by Mr. Adams in such cases as Tomasini, the reasons for such finding is hard to ascertain. Unlike Mr. Adams, Mr. Linden, in Haddock and Campbell (at pp. 3-4), would not separate the sub-articles of Article 23 for the purpose of interpretation. At p.4, Mr. Linden finds that Article 23 applies only .; /. ,,L’.’ ( .i _:. ( to employees covered by Article 23.1. Mr. Campbell was travelling outside of his regularly scheduled hours but, without authorization. Mr. Haddock travelled within working hours, as authorized, as did the Grievor in this case, and was paid premium pay under the collective agreement. Mr. Linden disallowed Mr. Haddock's claim for an addi- tional four hours travelling. At p.4 he states his reasons for holding that neither Campbell nor Haddock qualified for payment under Article 23.5: "Employees are paid additionally for travelling only when it occurs outside of ordinary working hours and then only when it is specifically authorized by the Ministry. (Article 23.1). ;c That was not the situation in this case, and accordinqly, the grievances herein are dismissed." (emphasis supplied).. Mr. Linden could not have been clearer: Article 23.5 cannot be read in isol- ation but is affected by the context in which it is found: Article 23. In that context, he found that travel contemplated inside of working hours was part of working hours and paid accordingly, that is, it would be compensated for in "the normal way, that is, in [an employees] normal pay schedule." Travelling outside of working hours was seen as a different case imposing a greater burden on (: employees and, accordingly, compensated for 'on a different basis. This view was not taken by Mr. Adams,in Tomasini, where the application of Article 23.1 was treated as irrelevant in the.case of Schedule 6 employees claiming payment under Article 23.5. His argument is no less applicable to a Schedule 4 employee,such as the Grievor, Mr. Adams finding that the wording of Article 23.5, standing alone is "quite specific",and he did not view Article 23.5 as being applicable only to employees falling within Article 23.1. 7 l 13 c-' From the context of Mr. Linden's statgment,in which he agrees with the conclusions reached by Mr. Adams, he would appear to concur in Mr. Adams~ statement in Tomasini that the nature of the travel contemplated in Article 23 is travel only incidental to an employee's 'primary job duty, and not to travel where an employee "was engaged in the performance of a specific job duty." (Tomasini at pp.6-7). In Haddock and Campbell; Mr. Lin,den's agreement with Mr. Adams' conclusions is in the context of his treatment of a Union argument that travel time and working-time are different and that such differ- i' ence has been recognized in three awards of Mr. Adams, one of which? .? was the Tomasini case. Mr. Verity, at p.6 of the Bonora case',distinguished the case ~, before him from the Haddock and Campbell case because of the fact that, in the latter case, the grievors "were scheduled to work on designated holidays as part of their regular shift schedule." This.fact, while noted by Mr. Linden, played no part in his reasons for concluding that Article 23.5 only applied where Article 23.1 also applied. Mr. Verity, at p.5 of the Bonora case, followed Tomasini c for the reason given by Mr. Adams: "That Article [23.5] is a specific provision which provides for a credit of 4 hours to an employee required to travel either on that employee's regular day off or on a holiday as specified by Article 47." As in the Bonora case, the Ministry, here, relied upon a Kinistry Memorandum, dated Nove.mber 29, 1983, signed by J. Smrcka, Manager, Construction Office, which purports to set out the Ministry policy regarding travel time on a statutory holiday. That Memorandum states, inpart: (y:: j. i ‘, 14 "2. Travel Time on a Statutory Holiday Employees 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 exceeds 8 hours." Mr. Verity in Bonora, at p.6, stated: "In our opinion, the Ministry's memorandum entitled Travel Time is in conflict with the provisions of Article 23.5. Where there is such conflict, the provisions of the Collective Agreement govern the Parties' relationships." If Article 23.5 applied to the facts of this case,1 would agree with Mr. Verity that the Employer would, by relying on the part ofgthe Memorandum quoted, be adding terms not found in the Collective Agreement. A further examination of the award in the Haddock and Campbell case discloses that Mr. Linden related Article 23.5, context- ually, not only to Article 23.1, but also to Article 19.1 and 19.2. At p.4 Of the latter award,reference is made to &lr. Haddock being paid a premium under Article 19 (See Exhibit 1 attacfie=p~ghe-Award]. The unlikelihood of Article 23.5 being applicable to a case where an employee is paid "for the day's work" as well as "premium pay" is discussed by Mr. Linden. As did Mr. Linden, I find that the existence of Article 19, and its.provisions with respect to premium pay for working on a holiday, affect the interpretation of Article 23.5 and its application to travel time on a holiday during working hours. In the result, I do not find this to be a case where the point in issue has been decided by a panel or panels of the Grievance Settlement Board in such a way as to bring the principle in the Bateman case forward for application. There are, rather, two streams of decision,as represented by the Tomasini case (followed in Bonora) 18. (, P> .fl-., i: 13 , and the Haddpck and Campbell case. As I view those cases, they i ,I interpreted Article 23 in different ways. In Tomasini, it was irrelevant that Article 23.1 did not apply, as Article 23.5 was treated as covering cases both within and without the situation envisaged by Article 23.1. In Haddock and Campbell, an opposite conclusion was arrived at, notwithstanding the acceptance of certain other conclusions of the Tomasini case. Whatever factual differences that distinguish this case from Haddock and Campbell and Tomasini, the board in the former case was in no' way influenced by the differ- ence in the fact situations. The Bonora: case followed the Tomasini case for the reasons stated in the latter case and distinguished the Haddock and Camobell case for reasons which I find to be incorrect. I am therefore left with conflicting decisions of panels of the Board. In these circum- stances,it would have been better to endeavor to have.the matter settled by the Divisional Court. In my view, the position of Mr. Linden in Haddock and Campbell is, for the reasons which I have stated, the more correct view. I need not go through the exercise suggested in Bateman. For all of the above reasons the grievance is denied. c Although not required to deal tiith the application of Article 21, because of my finding that Article 23.5 has no application in this case, if I am wrong, I would decide the issue of pyramiding as follows: Article 21 is entitled "Non-Pyramiding of Premium Payments", and provides: "21.1 There shall be no duplication or pyramiding of any premium payments . . . provided by the Agreement." The Griever received payment for the holiday worked pursuant to Article i9.1, in that he was paid at the rate of tWO (21 times his basic hourly rate for eight (8) hours, being his number of regularly scheduled hours. He .also received payment for eight hours at his basic hourly rate, in accordance with Article 19.2. lb '0 '.,. f If the ,'-' Len's position is acceptei/ that Article 23.5 , applies even where Article 23.1 does not, then the Grievor was (7 entitled to a three (3) hour and ten (10) minute premium for the fifth (50) minutes spent by him travelling, as authorized,~ from his designated headquarters to the job location and return. He was also entitled to, and was paid for, two (2) times his basic hourly rate .~ .~ for the same fifty (50) minute period, (Article 19.1) as well as the payment, at his basic hourly rate, for the same fifty (50) minute period, as is provided for under Article 19.2. Article 19.2 contem- plates payment to an employee under Article 19.1 for hours worked and it wars not, nor could it be, argued that payment under- Article 19.1 and 19.2 amounted to prohibited duplication of pyramiding under Articl: / I c.;. 21.1. :..’ Mr. Verity, in the Bonora case, stated, at p.6, that," . . . we do not agree that the benefit provided by Article 23.5 is pyramiding . . ;1 ..;;, which is specifically prohibited in Article 21." Further at pp.6-7 of the Bonora award, it is stated: .,. "In the instant matter, the Grievor has already been paid on the basis of %.hour travelling time on Easter Monday at the holiday rate. Therefore, to the 'Griever the four hours credit in addition to whathas already been paid, would amount to duplication of payment. Such duplication is prohibited under Article 21. "Accordingly, in allowing this grievance under Article 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." 'I view the Bonora Award as having decided that there was a pyramiding of benefits for the half-hour period spent travelling between headquarters ,and the job site. In doing this, the Board in the Bonora case, must be found to have ruled that there was a pro- hibited pyramiding for a period of one-half (l/2) hour representing the travel time in that case. It was concluded that the Griever's claim could be brought within the terms of both provisions, (Article ( 23.5 and Article 19.1) however, the Board deducted payments for l/2 '._ 17 *; ' 2 A!. .-' hour travel time from the monies payable under Article 23.5. I ( agree with this finding and would disregard .the earlier unsupported conclusions that there was no prohibited pyramiding. DATED at London, Ontario, this 19th day of March, 1986. M: R. Gorsky, Vice-Chairman "I dissent" (see attached) J. McManus, Member m&J g(-yy~ M. F. O'Toole, Member DISSENT RE: OPSEU (A. W. MacArthur) and The Crown in Right of Ontario (Ministry of Transportation and Communications) GSB #555/84 I disagree w ith the majority decision. The previous Ministry of (Verity) and cases relied on by the Union (Bonora and the Transportation and Communications, 554/B4 Tomasini and The Ministry of Transportation and Communications, 71/78 (Adams)) were in all material respects identical to the one before us'. Applying the reasoning in those decisions, I believe that the Board should have upheld the grievance. I would have awarded the grievor compensation'in l'ine with the Bonora award.