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HomeMy WebLinkAbout1984-1261.Harvey et al.89-02-10i h ONIAHIO u.4PLoILsoc LA ,.““W!tiNL CROWNEMPLOYEES DE L ‘ON,#l*,O B GRIEVANCE CQMMISSION DE !Z.l”‘.MENT REGLEMENT DES GRIEFS Between. ---: 1261/84, 1269/84, 1270/84 IN THE MATTER OF AN ARBITRATION under 'THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT before THE GRIEVANCE SETTLEMENT BOARD OPSEU (;. Harvey, M. Dzieczic & E. Molnar) Grievors and The Crown in Right of Ontario (Ministry of Transportation & Communications) Before: For the Grievors: For the Employer: Hearing: Employer K.P. Swan Vice-Chairperson I.J. Thomson Member W.A. Lobraico Member P.A. Sheppard Counsel R. Field President OPSEU (Local 510) O.W. Brown Q.C., Counsel . . Ministry of the Attorney General M.B. Furanna Staff Relations Officer Ministry of Transportation & Communications November 4, 1985 DECISION This arbitration concerns three separate grievances, all on the same issue and consolidated for the purpose of hearing. All three employees were at all material times in the classification Technician 3 Surveys in the Surveys and Plans Section, Central Region, Ministry of Transportation and Com- munications. All three employees came into this classification in this office in the course of an open competition No. TC (M) El- 115 CR, with a closing date of December 31, 1981. Their appoint- ments came about in somewhat different ways, which are not really here relevant. The were all directed to report, in their letters of appointment, to Mr. Z.J. Byblow, Head, Surveys and Plans, at 3501 Dufferin Street in Metropolitan Toronto. They began work in these positions in mid-February or early March 1982. The job entails working as a member of a survey party engaged in engineering and legal surveys, largely relating to highway construction. As a consequence, the actual work site to which the employees are assigned changes from time to time, and the employees are entitled, as will be seen, to payment for travel time and/or to mileage allowance, depending on the . . circumstances prevailing at the time. These payments are based upon the identification of a "Headquarters", which was in every case identified for these employees as 3501 Dufferin Street. All three were resident at various locations in the Municipality of Metropolitan Toronto. The grievers claim that the identification of this ,i - 2 - headquarters is inequitable, and in particular that it is contrary to the collective agreement and also to the terms of a consent award in a union grievance, 145/82, 147/82 et al., dated September 17, 1984, which dealt with the various issues relating to the establishment of headquarters. Indeed, it is common ground that there had been no dispute by these grievors about the location of their headquarters until the 145/82, 147/82 et al. decision came to the grievors' attention. Fje begin, therefore, by setting out the terms of the Memorandum of Agreement which was incorporated into the Board's award upon consent in the 145/82, 147182 et al. case: This Agreement is in resolution of the following grievances; Nos. 145/82, 147/82, 355/82, 356/82, 359/82, 360/82, 108/84, 109/84,~110/84, 111/84 and 266/84, 267/84, 268184, 269184, 27Of84, 271184 and further to the direction agreed upon between the parties as at May 9, 1984, made under GSB Nos. 92/84 and 93184. 1. ~11 field staff where they have been adversely affected under the provisions of Articles 17, 22 and 23 of the Collective Agreement as a result of a change in head- quarters outside of the Ministry policy (i.e., similar but not limited to that which occurred in Central Region) will be reas- signed to their headquarters as they were on May 1, 1982, or as at a later dated effected, save and except where headquarters were change by mtitual consent, or were employee initiated. Further, for the identified Northwestern Region grievors the date will be November 1, 1981. Such situations must be identified by the employee so affected, in writing to the Regional Director by October 31, 1984. 2. Retroactive entitlements for mileage and meal allowance will be calculated from May I, - 3 - 1982, to July 31, 1984, and paid at the rate applicable at the time it was earned. Retroactive entitlement for travel time from May 1, 1982, to July 31, 1984, will be taken pursuant to the provisions of the Collective Agreement. The above paragraphs will apply to the identified Northwestern Region grievances retroactive to November 1, 1981. 3. Ministry initiated changes in head- quarters since May, 1982, and in the future will be considered/made only where a change in an employee's employment location occurs (i.e., contract assignment or job site). It is the intent of the Ministry that such a change would be of a meaningful distance in order to necessitate a review of headquarters consistent. with the provisions of the Ministry's Travel and Expense Accounts Manual. 4. The Ministry agrees that pending and future changes in headquarters will be dealt with in accordance with the Ministry's stated policy. It is agreed that because individual circumstances can vary significantly, the question of equitability should be determined in a fair and impartial consultation with the employee so affected. Such employee will be identified using the following considera- tions: qualifications availability current location (home, closest facility,and work location) seniority -- Where qualifications, availability and location are relatively equal, length of continuous service shall be a consideration. 5. Employees affected by a change' in headquarters as a result of a change in job site will be entitled to the provisions available to, and normally afforded, civil servants. - 4 - None of the foregoing abridges an employee's rights under the Collective Agreement nor management's rights per Section 18 of the Crown Employees Collective Bargaining Act. Reference is also made, '-both in this grievance and in the consent'award, to Article l?, 22 and 23 of the Working Conditions.and Employee Benefits Collective Agreement. The applicable provisions, to the extent that they relate to the location of the employee's headquarters, are as follows: ARTICL% 17 - MBAL ALLOWkNCE . . . 17.2.1 Cost of meals may be allowed only; 17.2.2 If during normal mea~l period the employee is travellinq on government business other than: (al on patrol duties, except as provided under subsection 17.2.3, or (b) within twenty-four (24) kilometres of his assigned headquarters, or (cl within the metropolitan are in which he is normally working: . . . ARTICLE 22 - MILEAGE RATES EXPRESSED IN KILOMETRES -s 22.1 If an ,employee is required to use his own automobile on the Employer's business the following rates shall be paid effective April 1, 1982: - 5 - all time spent in travelling outside of working hours when authorized by the ministry. 23.2 when travel is by public carrier, time will be credited from one 11) hour before the scheduled time of departure of the carrier until one (1) hour after the actual arrival of the carrier at the destination. 23.3 When travel is by automobile and 3 the employee travels directly from his home or place of employment, time will be credited from the assigned hour of departure until he reaches his destination and from the assigned hour of departure from the destination until he reaches his home or place of employment. . . . Finally, the consent award refers to the Ministry's Travel and Expense Account Manual. That document refers to the identification of a headquarters in some detail, as follows: HEADQUARTERS 1.09 Eligibility for Expenses To establish the authority for reimbursement of an employee for expenses incurred by him on Ministry business the appropriate District Engineer or Branch Head must designate for that employee a stated headquarters as the point of departure for his operations. The employee must be officially notified of the location of this headquarters. (See para- graph 1.07) .s 1.10 Location and Permanence of Headquarters The headquarters of an employee shall be at the place considered most convenient for the efficient conduct of the Ministry's business. The location of an employee's headquarters shall be periodically reviewed by his District Engineer or Branch Head to determine whether or not the original arrangement continues to be equitable to both the - 6 - employee and the Ministry. Subject to the periodic review, an employee's headquarters shall be moved only when he is officially transferred.to another District or Branch, or to a job site at which it is anticipated that he will work for at least two years. 1.11 Headquarters - Home Located Outside of Regional or District Boundaries Should management choose to make an employee's home his headquarters, and that home is located outside the Region or District in which he is employed, a location on a Provincial Highway where it crosses the Regional or District Boundary on the most direct route between the employee's home and the Regional or District Headquarters, shall be designated as his headquarters. 1.2 Claims for Distance Travelled An employee's headquarters shall be the determining factor in calculating his claim for distance costs. If an employee's home is closer to his job site than is his head- quarters, he shall be allowed compensation only between his home and the job site. If, however, an employee is required to report to his headquarters either on going to the job site or on returning from it, he may claim the distance between those two points. Incidents of this type must be noted on the expense account. within the limits prescribed by these Instructions, and subject to the approval of the District Engineer or Branch Head, when assigned to a job located at a distance from his headquarters, an employee-may, (i) commute from his. headquarters (or residence) to the job site (see Living Expenses, paragraph 3.061, or (ii) reside in the vicinity of the job site. In the latter case, (ii), the employee shall be entitled to claim lilrinq expenses (Section 3) pro::ided he continues to maintai.n the - I - ly prior resident at which he lived immediate to his assignment. 1.13 Transfer of Headquarters If it appears that work in a specific area will continue for a period of at least two years, and if an employee who resides some distance from the area is assigned to work in that area for the duration, a permanent transfer should be considered, Rased on these provisions, we now turn to the facts as they apply to each individual grievor. In every case, the evidence comes from the grievor himself: there was no dispute in the evidence whatsoever as to the facts personal to each grievor. Mr. Dziedzic.had been employed in the same classifica- tion in another section prior to his successful application for this job. In that other section, his headquarters was at 1201 Wilson, usually called the Downsview Site.. Despite the change in headquarters to 3501 Dufferin Street, he still reported about 90% of the time to 1201 Wilson, from where he would travel by Ministry vehicle to the work site. Downsview was only a meeting point, however: he had no office, locker or equipment store there. On the other hand, he had absolutely no contact with 3501 Dufferin, except that it was the office for the section in which ~.m he worked. He never went there, and had no office, locker or equipment store there. On the other 10% of his occasions of reporting to work, he would be assigned to work in the eastern part of the region. Since he lives in East pork, he would either drive .his car directly to the job or drive to a pick up point to he taken to ! - rl - work either in a pooled private car or a Ministry vehicle. There is no dispute that he was paid entirely in accordance with the collective agreement and the Manual, but always on the basis of his headquarters being 3501 Dufferin. When he worked west of Dufferin; he would be compen- sated for mileage and time from the Dufferin location to the Vilson location, even though he would report directly to the Wilson location, and then for the time taken to continue on to the job site. When the job site was cl~oser to his home than to Dufferin, he would be compensated for travel from his home. He claims that the most equitable headquarters for him would be his home, or alternatively the nearest Ministry Patrol Area Office to his home, which is at Kennedy Avenue and 401 Highway. Mr. Harvey was hired into the job here at issue from the outside; although he had been in a similar position before, he had resigned in 1981 and was being rehired. He also has no contact with 3501 Dufferin, and reports about 60% of the time to the Wilson Avenue site, where once again he ,has no contact except for ‘meeting the vehicle which is to take him to the work location. The rest of the time, he either drives his own car to the job site, or.meets another vehicle at a pick-up point closer to his home. ?Je is also paid strictly in accordance with the Manual, but he claims that the most equitable headquarters for him would either be his home in Sea-borouqh, or the Patrol Area Office at Kennedy Avenue and F:ighwalr 401. Prior to hi.s resi,q::a- - 9 - tion, his headquarters had been his home. Mr. Molnar transferred from another section in March 1982. He also has no contact with 3501 Dufferin, and goes to the Downsview location less than 10% of the time. The rest of the time he either drives to a pick-up location and is driven to the job site, or drives his own car there. About 20% of the time, the location is such that he is paid mileage from his home. About 70% of his time, his mileage is calculated from Dufferin to Downsview, and then on to the job site. !?e also claims that a headquarters at his home, which is in Etobicoke, would be the most equitable location. In the alternative, the nearest Patrol Area .is either at Mimico or at Highway IO. The evidence also discloses that a review of employees in the Surveys and Plans section indicates that 22 employees had their headquarters designated at their personal residences, while 15 were assigned to 3501 Dufferin as a headquarters. There appears to be no special reason to distinguish between the two groups on the basis either of the work assigned, their qualifica- .' tions for that work, the sites at which they perform that work, or the location of their personal residences. From the consent award in the 145/82, 147/82 et al. case, however, it can be presumed that the location of employees on staff prior to May 1, 1982 would have been affected by the provisions of paragraph 1 of the consent award, which might have caused some of the otherwise unexplained discrepancies. The question of the assignment o f headquarters has been - 10 - a problem between the parties for some years, and has occupied a great deal of time of the Grievance Settlement Board on occasion. The difficulty for employees in the position of these grievors is I that there is really no rational Ministry office which can be identified as one to which they report, since their actual work locations are spread across the region, wherever circumstances and priorities require them to be assigned. The Board has commented adversely, from time to time, on the artificiality of the assignment of employees to certain headquarters, as for example in Howes, 356182, November 25, 1982. On the other hand, from the point of view of the performance of work, an employee's home is an equally artificial headquarters, since the employee performs no work there, and the Ministry has absolutely no connection with it whatsoever. From the employee's point of view, of course, locating his or her headquarters at his or her residence means that he or she will be paid for every kilometre and every minute spent travelling to a distant work site, As soon as the headquarters is moved away from the employee's residence, the employee's compensation for both travelling time and travelling distance, as well as his or her entitlement to meal allowance, will--be diminished. Almost all of the Board's jurisprudence in relation to headquarters deals with alterations of headquarters from one location to another. 1n many of these cases, the Board has expressed the suspicion that the change in headquarters has been designed simply to save expense to the Yinistry, and has 20 ether - 11 - valid purpose whatsoever~. The present grievances do not raise .any such issue. The grievors were hired to work for a section which is located at 3501 Dufferin. The address is included on the job competition posting, although it is not specifically referred to as *the headquarters", and each of the employees was notified shortly after employment that travel claims should be based upon a 3501 Dufferin Street headquarters location. In no case did any qrievor complain about that, until the consent award was issued. In fact, the consent award arose from a wholesale change of headquarters made across the Ministry, and its terms and condi- tions should be understood in the context of a change of existinq headquarters, rather than of the propriety of an initial assign- ment of headquarters specified at the time of appointment. In our view, therefore, the consent award simply does not apply to the case of these grievors. In strict terms, they are still at the same headquarters as that to which they were assigned on May 1, 1982, so nothing in paragraph 1 applies to them; They have not been the subject of any changes, so para- graph 3 cannot yet apply to them either. Paragraph 3, 4 and 5 may apply at some time in the future, but have no relevance to the matter presently before us. The Union argues that the consent award incorporates by reference the provisions of the Manual. .?ssllming that to he the case, the only provision which could aP~;l.:: here is cl,ause l.ln. That clause pro,Jides that the headquarters of ?n employee "shall - 12 - he at the place considered most convenient for the efficient conduct of the Ministry's business". In the absence of any evidence to the contrary, there seems to be no reason why the office of the branch under which the grievors are employed does not fit that definition, particularly since no one was able to offer another location that was not at least as artificial as 3501 Dufferin. The location of the employee's headquarters is then to be periodically reviewed to determine whether or not "the original arrangement continues.to be equitable to both the employee and the Ministry". It is to be observed that this is mutual equitability, and the employee cannot insist on a head- quarters which maximizes his or her travel claims, completely to the detriment of the Ministry. The Ministry's interests, which are essentially financial, are also entitled to consideration in this exercise. In Ross, 145/82, Vice-Chairman Joliffe, following a careful analysis of this issue, concluded: There is no evidence on which this Board could devise a formula that would be equi- table to both the Yinistry and the employees. We do not think that it has been shown that the system in vogue before October, 1978, was fair to both parties. _. We might observe that there is no evidence before us either on which we could produce a formula of complete equi- tability, but we must go on to say that it has not been shown hefo.re us that the designation of headquarters in ear!\, lqP.7 'or thesr? three employees was either j~nequitahle at the time, Or !iad - 13 - become inequitable at the time that the grievances were filed. While the headquarters designation may not maximize the grievers' travel compensation, that does not make it inequitable. Should an inequitable situation arise after the date of the grievances, of course, there is provision in the Manual For periodic review. Should such a review not produce an equitable outcome, the grievance procedure remains available to resolve the matter. In the result, therefore, the grievances are dismissed.