HomeMy WebLinkAbout1984-1257.Peebles et al.88-12-05EMPLOY& DE ‘A COURONNE DE L’ONT*R,O
COMMISSION DE
SETTLEMENT REGLEMENT
DES GRIEFS
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IN THE MATTER OF AN ARBITRATICN
Under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING 4CT
Before
THE GRIEVANCE SETTLEMENT BOARD
:sy.
Bet!.Well: OPSEU (Peebles et al.)
Grievers
- and -
~The Crown in Right of Ontario
(Ministry of Transportation & Communications)
Empl oye,r
Before: M. R. Corsky Vice-Chairperson
I. J. Thomson Member
G. A. Prckham Member
For the Grievers: -- Patrick Sheppard
Counsel
Patrick A. Sheppard
Barrister and Solicitors
For the Employer: K. B. Cribbie
Staff Relations Advisor
Human Relations Branch
Ministry of Transportation
HEARTh!G: August 26, 19R8
I .
DECISION
In allowing the grievances, this Board directed that the parties endeavour
to settle the matter a&to what headquarters designation would be equitable
to both parties because we did not have sufficient evidence with which to
determine that issue. 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 Hr. Thompson would replace him as a
Hember.
On August 23rd, 1988, Mr. Cribbie, who had taken over carriage of this matter
from Mr. Brown, wrote to Nr. Sheppard, counsel for the Union, notifying him that
at the commencemenrof the hearing on August 26th, 1988, an 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 Elinistry would
be~"that the issue is res judicata as the identical issue involving these two
gr;evor's was the subject of the previous decision of the Grievance Settlement
Board in Williamson et al 289181."
In the said letter, Mr. Cribbie stated that notwithstanding the objection to
the jurisdiction of the board, the Elinistry would "be prepared to deal with the
merits of the headquarters designation of all griever's on August 26th, 1988,... w
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 i\lessrs. Peebles an<
Vecchio.
At the opening of the hearing, Fir. Cribbie made the objection referred co for
the reasons stated. I think it is too late for the Flinistry to raise..&
objection to hearing the case on the merits as it relates to Elessrs. Peebles and
Vecchio. The time to do that was when the case was firit heard on January
3rd, 1986. No objection was raised at that time and the issue with respect
to all
Grievers was decided on the merits. The reason for doing so, not-
withstanding the form of the grievance, was set out ii the award at pp. 5-6:
I
,
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: ',
Page 2:
"I did not understand the position.of the Employer to be that
the grievance must fail if the Grievers are not assisted by the
Brent Award. Rather, I view the Employer's position as being
that the Brent Award did not assist the Grievers 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
011 their writs and we will endeavor to do so."
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 Grievers 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 Nay of 1987, to have been judically
reviewed, for absence of jurisdiction in the cases of MessrzY. Peebles and
Vecchio.
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 Nay 1987 is complete in So far as the'
issue of entitlement is concerned, and in that-respect this Board is functus. .,,
The purpose of x-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 dealt with the question
of relief which the parties were unable to resolve.
What the Union requests, in asking that this Boar&be re-convened, is that
this Board determine the proper re-designation of the designated headquarters
of the Grievers that would be equitable to the Elinistry and the Grievers. -.
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. ll-
12). which was referred to in our Award at pp. 7-8. Here, the. redesignation
of the designated headquarters of the Grievers to 3501 Dufferin Ave. was
not equitable to the Grievers. As in the Howes case,,the selection of the
Page 3:
designated headquarters for the Grievers was artificial. There was no
requirement that the Grievers report to the selected headquarters at any
time and the designation appears to have been unrelated to the Grievers'
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 off 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
Elr. Peebles, who testified about the Ninistry proposal, stated that the
J%.nistry 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 head$uarters 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 Grievers covered by the
Award i:ould be assigned to one of the six satellite headquarters but, as a
condition qf t~he~Elinistry agreeing to the settlement, all of the other field
staff (22 employees) whose designated headqiarters remain their homes, would
hive to be bw&by the proposal.
XI-. 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 'Grievers, it would still be unacceptable to the Union. In
Nr. Peeble's case, he stated that the closest of the six satellite de-
signated headquarters would be SO 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 wasp no relationship between the
designated headquarters and an employee‘s home. Elr. Peebles suggested
that the only equitable solution was to have the Grievers’ homes as desig-
nated headquarters.
?lr. Peebleslposition 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 Ministry. 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 Elinistry is that the Grievers,
who are field staff, have no fixed place of work and may be assigned to
projec'ts 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 wocild be the most equitable
arrangement, Mr. Peebles referring to his designated headquarters being
made the Grafton PatroL Yard (7161, stated that he would expect to bear
the cost of transportation for the approximately 22 kilometres frond 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 vehi%Xe 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 Grievers who testified and by Mr. Fields, who testified without
objection, on behalf of Xr. Bales and with respect to certain of the other
Grievers.
Mr. Reddick, one of the Grievers. lives in Apsley. which is located out-
side the region, and is'on Hwy. 28, halfway between Lakefield 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. Fir. Reddick
testified that the distance from his home to 3501 Dufferin Ave. is 170
kilometres. Under the tentative hlinistry proposal, his headquarters
would be Undsa;, which would be 101 kilometres from his home. The
closest Ministry facility to Mr. Reddick's home in Apsley, would be at
Younge's Point (707), which is 45 kilometres from his home.
Mr. Reddick acknowledged that it would not be fair td the Elinistry to
treat his home, 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 h= does
for the Elinistry, but stated that he had to pass through Burleigh Falls
every day,.wherea.s, 3501 Dufferin had no relationship to his functioning
for the Ministry, 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.
nr. Field.confirmed the evidence given by Nr. Peebles, about the two
meetings held with representatives of the >linistry. Mr. Field testified
with respect to the case of one of the Grievers,, Mr. Bales, who lives
in Kinmount. Mr. Field stated that Lindsay (703) is 50 kilometres from
:ir. Field's home. The nearest Patrol,Yard to Mr. Bales' home is Coboconk
(713) which is 24 kilometresi,from Elr. Bales' home.
Xr. Bales stated that under the conditional proposal of the Ministry,
!ir. Vecchio's designated headquarters would be Lindsay,vhich is 39 kilo-
metres from his.home. The nearest Ministry facility to Mr. Vecchios"
home, was Youfige's Point (707). a distance of 6 kilometres from his home.
i
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Page 6:
\Ir. Field also' testiiied concerning the case of Mr. Swindel, one of the
Grievors, who lives in Bradford, beyond the Regional boundary. Under
the Elinistry's qualified proposal, the designated headquarters for Elr.
Swindel would be at the junction of Hwy. 400 and 9 (608), which is approxi-
mately 15 kilometres from Mr. Swindels' home.
The position taken on behalf of Nr. Swindel is that he supported the
position of Plr. 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.
31.. Field summarized the'position of all of the Grievers to be that their
!vmes within the region should be their designated headquarters for reasons .
of consistency with the other members in the Local. Failing that, the
nearest Patrol Yard to each Grievers' home within the region should be
their designated headquarters, because it represents an actual place having
some ielationship 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 ca.&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
Elinistry proposal was that the satellite yards were too remote from the
Grievers' homes. Another objection was that the Ministry required all
employees to change their designated headquarters to one of the satellite I
yards as a condition of the ?'linisrry's acceptance.
By consent, it was agreed that the evidence of all the Grievors.vould
be treated as the same as the representative Gyievors. That is, those
living within and without the region.
In his argument, Mr. Sheppard submitted that the situation of the Grievers
was different from other employees in the Publi; Service who work in more
or less fixed locations. Unlike suchemployees, the Grievers cannot plan
P?lge 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 Grievers can be sent to work anywhere
in'the very large Central he:gio". This had led to compensation being
paid CO such employees for travel time, mileage etc. There was, according
to Mr. Sheppard, no reason for the continuing inequitability in treatment
between the Grievers and those employees, such as Mr. Field, who 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. Hr. Sheppard requested that if we rejected his first
submission and require some contribution from the employees, the" we
choose a locncion which has some legitimacy. That is, one which has some
relevance to the work performed by the Grievers for the ElinistrY, es 3501
Dufferi" does not.
He argued that the locations identified by or on behalf of the Griever*
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 Xessrs. Bales (50 K.), Reddick
(101 K.), Swindel (16 K.) and Vecchio (39 K.). If the second position
of the Grievers was accepted, then the figures give" by Mr. Sheppard were:
Peebies (22 K.), Bales (20 K.), Reddick (45 K.), Swindel (16 K.), Vecchin
112 K.).. (All o;e way).
Mr. Cribbie referred us to the fourth page of Exhibit #l, being a letter from
E. Shiels, Senior Party Chief, Surveys and Pl?ns Section, Central Region, to Mr.
Peebles, dated the 4th day of October 1981, being a reply to Mr. Peebles' stage
one grievance of August 27th, 1981, grieving the.. then, designation of 3501
Dufferin as headquarters.The portion of Elr. Shiels letter referred to, is as follow>
.~
Page 8.
"In Feb.181 you elected for personal reasons to change ycur
residence to the Castletowarea and advised Mr. Byblw, 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 Castleton could not be justified
in terms of projected worklcad and therefore that your new
headquarters would be designated at the Central Office at
3501 Dufferin St., Downsview. This was confirmed by a memo
to you from Mr. Byblow dated 81 02 04."
Mr . Cribbie submitted ihat'the principal concern of the i'linistry was the
maintenance of effective administrative control. He argued that if each Griever
was permitted to have new designated headquarters every time he moved, it,vould
create an "administrative nightmare" in the planning of the work load. In
saying so, hk was referring to the situat,ion 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.
or. Cribbie referred to the Award in OPSEU (G. N. Ross) and the >!inistrY of
Transportation and Communications 14102 (Jolliffe) where it was stated at p.'~J7:
-"'There is merit in Mr. Brown's suggestion. that a construction
employee should make a contribution toward time and. travel cost
comparable to the cor,tribution ordinarily made by other public
servants who g3 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 th= jobs."
Elr. Cribbie suggested that the same reasoning app,lies in this &se and I agree.
At the same time, I agree with the further statement by, Mr. Jo+liffeat P. 17:
"By the same token, it would be inequitable to penalize-'them for being
obliged to travel~long distances to job sites, that being a burden
other public servants are not required to bear".
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, ar,d that contrioution the Ministry must make
in order not to penalize employees being obliged to travel long distance
to job sites.
In the Rose. case, atpn. 17-18, Mr. Jolliffeobserved:
“In our view the choice of a “headquarters” unrelated to the
requirements of construction work is not a satisfactory
solution. Patrol yards such as those zt Winona and BP-aver Dams
are used by maintenance 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 Xr. Smith and Mr. Illingworth that they were selected for
the purpose of reducing travel claims, and the seiection had that
effect on 181 (or 51 per cent) of employees, but 43 <or 12 per
cent) ga.ined and for ci9 (37 per cent) there was n6 change. The
figures fail to suggest equitable results, although there inay be
sqme cost-saving for the Ministry :- as long as few take advan:age
of the relocation allowances authorized.”
What we are faced with here is a similar problem, as the various suggestions
made by the parties for the choice of, “headquarters” have no v+it& relation
to the requirements of the Grievers’ 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 Grievers’ work. It is mainly concerned with the need:
of the Ministry. The six satelIite “headquarters”, being part of the con-
ditional proposal made by the Ministry, while somewhat better, in that they
reduce some of the more extreme disparities, are also largely unrelated to
the requirements of-the Grievers’ work. The suggestion favoured by the
Grievers, who work within the Region, that their homes be treated as’
“headquarters”, does not take into account Mr. JollifA’s valid concerns,
nor does the suggestion by the Grievers living without the Region, that
sme point OR ,the Regional boundary, be treated as their “headquarters”.
Page 10.
There is merit in Mr. Jolliffe’s suggestion,~in the Ross case, atrp. 18:
,I (61 There is noevidence 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 shownthat 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
employee 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 kilometres getting to work and spends 20
minutes of his own time doing it, then it is conceivable the
parties might decide to compensate construction employees for any
travel or time in excess of those figures: calculated from.the
employee's residence. What the appropriate figures should be
is a matter for inquiry and negotiation, not to be determined by
this Board. I,
When this matter was referred to the parties llto determine what headquarters
designation would be equitable to both parties” (Award p. S), it was because
we did "not have sufficient evidence before us to determine what the head-
quarters designation be equitable to both parties....".
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 would rather
that the resolution of the dispute have a mo;e rational basis. .One Such
basis was presented in the Ross case. Mr. Jolliffe's suggestion, at P. 18.
Pagell.
while only an example, would create a rational basis for determining the
contribution of the Grievers and the Ministry. There is nothing in the
Agreement which requires the elaployees to live in any particular place
within the Region and they ought not to be penalized for doing so. Where
an employee chooses to live without the Region, the employee cannot expect
the Ministry to make payments with respect to travel Erom the employee's
home to the bandary 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 Mr. .Tolliffewas dealing with construction employees, much of what
he stated has application to this case. The Grievers' job-sites are
entirely beyond the,ir 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
Er. Shields letter to Peebles of September 4th, :981, is-not supported.
The equities which must be recognized,.on the facts of the case, ,ire ,the
employees' right to recompense for excess travel time and the Ministry's
right to expect some reasocable 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 rationai basis. If I was forced to, I would not pick
3501 Dufferin nor the Grievers' homes or the Regional boundary line (where
certain Crievors 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 Minisiry,
in its conditional proposal, because they create a greater flexibility,
reduce the level of inequity created by the Dufferin desigtiation. They
suffer from the fact that they create a considerable disparity between the
Grievers, which cannot be supported. The Grievers' second suggestion,
that their headquarters be the named Patrol Yards or, in the case of those
Grievers living outside of the Region, the boundary, similarly lacks any
rational foundation, in that the contribution of the employee is unrelated
to any logical criteria; I also KIS unpersuaded thai there was any particLlar
relation between the latter designations and the functions of the Grievers.
Page 12.
We agree that we have not been furnished with sufficient evidence to
enable us to issue an award which is reasonably related to the criteria
identified by Mr. Jolli!?? in the Ross case. We are not happy about
having to do so, but we r‘eel that we 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, the parties cannot agree on the contribution
of the employees, and the Board must, once again, be re-convened, we will
at least have more cogent evidence upon which to make a more rational
decision,
I??+4 at Toronto this
5:h day of December, 1988.
7dMib+
M.R. Gorslcy. Vice-Chairperson
1-J. Thomson, Member
G.A. Peckham Member