Ontario Public Service Employees Union (Nickel) v. The Crown in Right of Ontario (Ontario Clean Water Agency), 2000 CanLII 20491

GSB #1539/97

OPSEU#97G052

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Ontario Public Service Employees Union

(Nickel)

Grievor

• and -

The Crown in Right of Ontario

(Ontario Clean Water Agency)

Employer

BEFORE Michael V. Watters Vice Chair

FOR THE Ed Holmes, Counsel

GRIEVOR Ryder, Wright, Blair & Doyle

Barristers and Solicitors

FOR THE Marsha Gottesman, Counsel

EMPLOYER Legal Services Branch

Ministry of Community and Social Services

HEARING October 28, 1998, April 30, 1999,

January 31, February 8, February 16, July 17, 2000.

This proceeding arises from the grievances of Mr. Brian Nickel and

Mr. Michel Caron dated June 5, 1997 and January 19, 1998,

respectively. The former grievance states, in part:

"On May 28, 1997 I was told by management to report to a

new work location. I believe this constitutes a change

of headquarters; and this change was not in compliance

with Article 11.

(Exhibit #1)

The latter grievance states, in part:

"I hereby grieve a directive made by O.C.W.A. to effectively

change my legal headquarters without adhering to the

procedures of Article 11 and its sub-sections outlined in

the collective agreements between O.P.S.E.U. and the

Province of Ontario.

Exhibit #2)

As noted, both of the grievances reference article 11 of the collective agreement. That provision, as set out below, applies to "employees who do not attend at or work at or work from any permanent ministry facility in the course of their duties..." The parties to this dispute agree that article 11 is inapplicable to the grievors as both attend at or work at or work from a permanent OCWA facility, this being the Kingston Township Wastewater Plant. This location was also referred to as the Kingston Sewage Treatment Plant during the course of the evidence. I will hereafter refer to this work site as "the KSTP". I accept the submission of counsel for the Union that the real issue in this case is what, if any, benefits accrue to an employee when the Employer directs them to report to a workplace other than their regular place of employment.

The grievors at all material times worked as Operators in the

Kingston Township Hub of the Ontario Clean Water Agency (hereinafter referred to as OCWA). The purpose of their position is described as follows in the Specification and Class Allocation form filed as Exhibit #9.

"to maintain and operate all process control, systems and

other related equipment required in the operation of the

water and wastewater facilities, the related pumping

stations, collection and distribution systems located

within the Kingston Township Hub."

The Kingston Township Hub consists of a number of projects including water and wastewater facilities in Kingston, Odessa and Lansdowne. The aforementioned Hub was amalgamated with the Belleville area Hub in or about December, 1998 to form the Kingston-Quinte Hub. This development does not impact the resolution of these grievances.

Mr. Nickel was hired into the Operator position effective November 30, 1987. Mr. Caron transferred into his position on April 15, 1991. His seniority date is June 26, 1989, as he previously worked as an Operator in Longlac, Ontario. At the time of their hire, both grievors were informed that their permanent worksite or "headquarters" would be the KSTP. When they commenced their employment, the water and wastewater facilities and related systems in Kingston and the immediate area were operated by the Ministry of the Environment. In or about November, 1993, responsibility for the operation of these facilities was transferred to OCWA. Initially, each facility had a Superintendent and operational and clerical staff. In July, 1996, OCWA restructured its operations around the hub system. Generally speaking, thereafter the cluster of facilities comprising the Kingston Township Hub were serviced by OCWA employees working out of Kingston rather than by employees

positioned at each of the separate facilities. Positions at the individual facilities were eliminated and staff who previously worked there were reduced or surplused. The staff remaining were all considered to have headquarters at the KSTP. A rotational system, as described in greater detail later in this award, was adopted by the Employer pursuant to which employees were assigned to the various projects in the Hub. In the period material to this case, Mr. Jeff DeMarsh was the Manager of the Kingston Township Hub and Mr. Joe Lewis was the Assistant Manager. Mr. Lewis was the grievors' direct supervisor.

Mr. Nickel lives in Morven, Ontario. Morven is in close proximity to Napanee and is approximately thirty-five (35) kilometres to the west of the KSTP. Mr. Caron lives in Kingston. His residence is approximately nine (9) kilometres from the KSTP. As mentioned earlier, Odessa and Lansdowne are part of the Kingston Township Hub. Odessa is approximately fourteen (14) kilometres to the east of Mr. Nickel's residence and is the same distance to the west of Mr. Caron's residence. Mr. Nickel, if using Highway #401, would pass by Odessa when travelling from his home to work in Kingston. Lansdowne is approximately eighty (80) kilometres northeast of Kingston.

The workday for both grievors commences at 7:30 a.m. and concludes at 4:00 p.m. In the period prior to the events giving rise to these grievances, Mr. Nickel commuted on a daily basis from his residence to the KSTP, and return, using his personal automobile. Between 1987 and 1993, he travelled alone and went directly to the KSTP for the start of the workday. Commencing in late 1994, his wife started to travel with him as she also worked in Kingston. It was Mr. Nickel's practice to first drop his wife off at her job at Kingston General Hospital before reporting to the KSTP at 7:30 a.m. Mr. Caron, likewise, commuted from his home to work using his personal automobile. He estimated that the commute took between ten (10) and thirteen (13) minutes. Mr. Caron testified that he also carpooled to work for a period of time and that, on occasion, he biked to the KSTP. In this period, neither grievor was paid for the commute. More specifically, they were not compensated for the kilometres travelled between their residence and work, and return, nor were they paid for the time spent travelling to and from the KSTP. Mr. Nickel acknowledged that during his commute, he did not conduct any business for the Employer.

In this initial period, prior to the events giving rise to the present dispute, the primary work location for both Mr. Nickel and Mr. Caron was the KSTP. During the course of their day, they were periodically required to perform work at the other projects in the Hub, as the need arose. By way of example, they might have to attend at the Kingston Township Water Treatment Plant, some three (3) kilometres away, or at facilities at or close to either Odessa or Lansdowne. The grievors were provided with an OCWA vehicle (hereinafter referred to as a "company vehicle") for "ad hoc" trips of this nature. Mileage and travel time were not claimed in respect of such trips as the work in question was performed within the normal workday and through the use of a company vehicle. Mr. Nickel and Mr. Caron were also required from time to time to be on-call in order to respond to problems or emergencies at any of the facilities within the Kingston Township Hub occurring between 4:00 p.m. and 7:30 a.m. or on weekends. The grievors had access to a company vehicle when acting on-call. Mr. Nickel and Mr. Caron also described certain secondments they were on in the 1995-1996 period. It is unnecessary to review these in detail for purposes of this award.

In late January, 1997, Mr. Lewis informed Mr. Nickel that he was required to work at Odessa commencing February 1, 1997. In the period February 1 to May 27, 1997, Mr. Nickel commuted with his wife and young child/children to Kingston via their personal automobile. I was informed that the child care was provided in Kingston. Once there, Mr. Nickel dropped his family off and then proceeded to the KSTP for the start of work at 7:30 a.m. This grievor would then take a company vehicle and drive to the facility at Odessa. At the end of the day, he would leave Odessa in the company vehicle and return to the KSTP for 4:00 p.m. Thereafter, he would pick up his family and return to Morven in his personal vehicle. During this period, Mr. Nickel was not compensated for travel between the KSTP and Odessa, and return, as throughout all such travel was in a company vehicle and occurred within regular working hours.

At some point following this reassignment, Mr. Nickel approached Mr. Lewis and advised him that his wife would only be working three (3) days a week up until the end of April, 1997. As a consequence, Mr. Nickel offered to report directly to Odessa at 7:30 a.m. on the two (2) days he did not have to drive her to Kingston. The grievor emphasized that this would be a temporary arrangement only as his wife's job would revert to full-time at the end of April. It appears from the evidence that Mr. Lewis ultimately agreed to the proposal after considering same for an unspecified period of time.

Mr. Nickel testified that on May 27, 1997, Mr. Lewis instructed him to report directly to Odessa commencing the following day. Instead of reporting to the KSTP at 7:30 a.m. and taking a company vehicle for the drive to Odessa, Mr. Nickel was expected to report directly to Odessa for the start of work at 7:30 a.m. and to remain there until 4:00 p.m. It was further expected that travel from his residence to Odessa, and return, would be by way of his personal vehicle.

Mr. Nickel asserted that the direction of May 27th inconvenienced him as he had structured his personal life around his headquarters. As previously mentioned, Mr. Nickel's spouse also worked in Kingston and his child care arrangements were located in that same community. Following receipt of Mr. Lewis' direction, the grievor was required to leave home fifteen (15) minutes earlier in the morning so that he could drop his wife and child/children off in Kingston and then report to Odessa for 7:30 a.m. At the end of the workday at 4:00 p.m., Mr. Nickel left Odessa in his own vehicle and returned to Kingston to collect his family. He estimated that the new routine increased travel in his personal vehicle by approximately forty (40) kilometres per day in comparison to the earlier period when a company vehicle was used for travel from the KSTP to Odessa and return. Mr. Nickel added that the extra time spent travelling at the end of the day resulted in his child/children spending greater time at the babysitters. He claimed that it was not feasible for his wife to drop him off at Odessa in the morning on her way to Kingston. This was premised on the fact that she worked till 5:00 p.m. Mr. Nickel suggested that, as a consequence, he would have been "stranded without a vehicle" at Odessa for one and one-half (1 1/2) hours while he waited for his wife to pick him up after work. Additionally, he noted that such an arrangement would have augmented the time his child/children spent in day care. Mr. Nickel stated that this change "became an issue" when it started to cost him money and disrupt his personal life.

Mr. Nickel testified that he raised the above concerns, including those related to child care, with Mr. Lewis. In his words, they failed to arrive at a satisfactory resolution. He, accordingly, filed his grievance on June 5, 1997.

Mr. Nickel travelled in accordance with the directive between May 27th and the end of December, 1997. He did not claim or receive an allowance for kilometres or time travelled. Mr. Nickel maintained that management personnel told him he could be sent "anywhere within forty (40) kilometres" without any consequent obligation to provide compensation. He further indicated that his headquarters remained in Kingston throughout the entire eleven (11) month period during which he reported to Odessa.

Mr. Lewis testified that he viewed the initial arrangement for the grievor's travel to and from Odessa, in respect of the period February 1 to May 27, 1997, as inefficient in terms of both economics and productivity. He expressed concern that approximately one (1) hour of the work day was lost to travel and that there was one (1) less vehicle at Kingston available for ad hoc trips. In his judgment, these inefficiencies were eliminated by having the grievor report directly to Odessa. He noted, as well, that such change would decrease the expenditure on fuel for OCWA vehicles. Mr. Lewis observed that a direct report to Odessa would also reduce Mr. Nickel's personal commute from thirty-five (35) kilometres to fourteen (14) kilometres each way. Similarly, it would serve to lessen the actual time spent travelling to and from work.

Mr. Lewis advised that he elected to implement the above-described change after consulting with Mr. DeMarsh and Ms. Anne Thorton, the Human Resources Advisor for the Northern and Eastern areas of OCWA. Mr. Lewis acknowledged that he did not ask the grievor about his preference or interests. He indicated that at the time the decision was taken, he was unaware of the grievor's personal arrangements in respect of the transport of his family to Kingston. Mr. Lewis stated that he became aware of these arrangements prior to the grievance being filed. It was his evidence that the information did not persuade him to reconsider the decision. From Mr. Lewis' perspective, it was Mr. Nickel's "choice to take his kids to Kingston". He expressed the further opinion that he had to be fair and equitable to all employees.

Ms. Thornton in her evidence did not seek to minimize the importance of child care or the effect that arrangements for same can have on the balance and equilibrium of staff. In this regard, reference was made to "Working Well", an Employee Assistance Program initiated in late 1999 which assists employees on a confidential basis with several problem areas, including child care. A package describing the program was filed as exhibit #18. Nonetheless, Ms. Thornton testified that she does not consider it the Employer's responsibility to accommodate for child care situations, particularly in view of the fact the location where the care is provided could change, possibly on short notice.

Mr. Caron replaced Mr. Nickel at Odessa in early February, 1998 and remained there until May, 1999. During this period, Mr. Caron was required to travel in his own vehicle from his residence to Odessa for the start of the workday at 7:30 a.m. He stayed there until 4:00 p.m. at which time he would return home, again, by way of his personal transportation. It is apparent on the evidence that this assignment added five (5) kilometres to Mr. Caron's commute to work and an equal number on the return trip home. Mr. Caron estimated that it took him between seventeen (17) and twenty-nine (29) minutes to drive to Odessa depending on the traffic and the weather.

Mr. Caron's primary concern was that the requirement to drive his personal vehicle to Odessa and back increased his expenses relating to fuel and maintenance. He also noted that having to be at Odessa, and not Kingston, at 7:30 a.m. forced him to adjust his daily schedule. When advancing these concerns, Mr. Caron stressed that Odessa was not his "main work area". He stated that his preference would have been to travel to the KSTP for 7:30 a.m., to go from there to Odessa in a company vehicle, and to return in same to Kingston for 4:00 p.m. Simply stated, Mr. Caron wanted to travel on company time and in a company vehicle. Mr. Caron alleged that other employees were permitted to travel in this fashion and that at least two (2) employees were compensated for lunches when working out of Odessa.

Mr. Caron also made specific mention of a situation which occurred around Easter in 1998. At that time, his car was being repaired and painted and, as a result, was unavailable for the commute to Odessa. Mr. Caron testified that he asked Mr. Lewis if he could use one (1) of the vehicles at the KSTP for travel to and from Odessa for the period his vehicle was out of service. It was Mr. Caron's evidence that his request was denied and that Mr. Lewis suggested he use vacation or sick time to cover the days in question. The grievor ultimately opted to take two (2) vacation days. He noted, in this regard, that there was no public transportation available to travel between Kingston and Odessa. Mr. Lewis did not seriously dispute the grievor's account of this incident. He expressed the opinion that an employee has the obligation to get to work at headquarters or at some other location to which they have been rotated. Mr. Lewis added that if he had granted the grievor's request, he would have had to do the same for all other employees.

While at Odessa, both Mr. Nickel and Mr. Caron were called upon to work at several facilities in the immediate vicinity including the Odessa Water Treatment Plant, the Amherstview project and the Petro Canada project. Company vehicles were available for these "ad hoc" trips which were completed within regular working hours. I accept that neither grievor had to use his personal vehicle for work once at Odessa.

In his examination in-chief, Mr. DeMarsh was asked why the grievors were not permitted to first report to the KSTP and then travel to Odessa in a company vehicle and on company time. He advanced two (2) reasons for the position taken. Firstly, Mr. DeMarsh stated that such an arrangement would have led to a loss of productivity at the beginning and end of the workday in respect of the time spent travelling to and from Odessa. In cross-examination, he acknowledged that as the Odessa plant was already running at 7:30 a.m., there was nothing specific for the grievors to do there for the first one-half (1/2) hour of the day in order to make the facility operational. He agreed that the same was true at the end of the day. Mr. DeMarsh emphasized, however, that there was "significant work to be done" within the cluster of facilities around Odessa and that the demands required "a full eight (8) hours attention". Secondly, Mr. DeMarsh suggested that the grievors' preference would have presented a logistical problem in terms of the deployment and availability of OCWA vehicles. He suggested that on-call staff could be inconvenienced if a vehicle deployed at Odessa was parked at Kingston overnight. On his analysis, if the vehicle was needed at Odessa to respond to a problem, the on-call person would have to first retrieve it from Kingston and then return to Odessa to deal with the situation. Mr. DeMarsh indicated that in deciding where the grievors should report and on the method of travel they would be required to use to get there, he considered the impact on them and balanced it against the needs of all staff.

Mr. Lewis advised that in the relevant period the deployment of OCWA vehicles was as follows: Kingston-three (3) to four (4) vehicles; Odessa-two(2) vehicles; Lansdowne-one (1) vehicle. In cross-examination, he agreed that since there were two (2) vehicles at Odessa, the on-call function would not have been adversely impacted by the grievors' use of one (1) of the vehicles for travel between headquarters and Odessa, and return. He further agreed that day-time operations would not have been affected as Mr. Nickel was the sole employee at Odessa in the period he was positioned there, while Mr. Caron was one (1) of two (2) employees there between February, 1998 and May, 1999. In substance, Mr. Lewis acknowledged that the grievors' use of one (1) of the vehicles for travel to and from Odessa would not have undermined either day-time or after-hours operations.

On the evidence, it seems that employees were periodically assigned to other projects in the Kingston Township area on a weekly or monthly basis prior to the adoption of the Hub structure in 1996. After implementation of the Hub structure, rotation of employees between the various projects within the Hub became standard operating procedure. Mr. DeMarsh testified that he was directed by Mr. Ron Gagnon, the Eastern Area Vice-President, to rotate operational and maintenance employees between projects as part of the overall hub strategy.

All of the witnesses presented by the Employer testified as to the benefits accruing from the rotation of employees. These benefits may be summarized as follows:

(i) exposure of staff to the operations of all projects

in the Hub would permit them to provide better

service when responding to problems or emergencies

when on-call. Mr. Nickel had previously filed a

grievance relating to an on-call alarm at the

Westport facility. Apparently, he was then of the

view that he and other employees had not received

sufficient opportunity to gain experience or

training in respect of other plants within the

Hub, thus making it more difficult to respond to

alarms. In a settlement of the grievance dated

April 29, 1997, the Employer agreed "to develop a

training plan to address the requirements for

staff on-call in the Kingston Hub" (Exhibit #4);

(ii) exposure to other projects would provide employees

with an opportunity to gain the requisite experience

to upgrade their certification level; and,

(iii) a multi-skilled and cross-trained workforce would

make OCWA more marketable in a competitive

business environment and would provide greater

opportunities for maintaining existing contracts as

well as securing new ones.

Mr. DeMarsh met with staff to discuss the objectives of the rotational system. It was left to Mr. Lewis to devise the actual implementation schedule. The deployment of Mr. Nickel and Mr. Caron in Odessa was part of this overall plan to rotate employees between projects for the reasons outlined above. Mr. Lewis observed that the rotations were for a minimum period of six (6) months. He stated that a maximum period was not discussed with staff. At this juncture, I note that Mr. Nickel was rotated to Odessa for approximately eleven (11) months and that Mr. Caron worked there for about fifteen (15) months. In cross-examination, Mr. Lewis estimated that it would have taken about one (1) month for both of the grievors to become familiar with all of the operations at Odessa.

Ms. Thornton testified that the Employer considered the grievors' headquarters to be the KSTP at all times material to this case. She asserted that headquarters did not change for the period of the rotations here in issue. In her view, the grievors' rights and entitlements were referable throughout to the KSTP. Ms. Thorton had previously discussed the issue of headquarters, in the context of OCWA employees, with Ms. Sandra Harper, a Job Security Officer at the Union's corporate office. In the course of their discussions in January, 1997, which focused on the assignment of employees out of Parry Sound, they agreed that article 38 of the collective agreement (current article 11) was inapplicable to OPSEU members working for OCWA as all such staff attended at or worked at or from a permanent OCWA facility in the course of their duties, thereby rendering it unnecessary to designate a deemed headquarters for purposes of the collective agreement. As noted at the outset, both parties have agreed that the grievors' headquarters, or permanent work location, was the KSTP.

Ms. Thorton further testified that the Employer followed an unwritten practice whereby employees rotated to another project would only be permitted to travel in a company vehicle and on company time if the new work location was more than forty (40) kilometres from their headquarters or permanent worksite. In such a scenario, the employee would be permitted to pick up a company vehicle at their headquarters and to travel to and from the rotation site during working hours. Conversely, Ms. Thornton advised that if, as here, the rotation location was less than forty (40) kilometres from headquarters, the employee would be expected to report there directly for the start of the day at 7:30 a.m. and to remain there till the end of the day at 4:00 p.m. Mr. DeMarsh referenced the same practice. In his evidence, however, he suggested the threshold was twenty-four (24), and not forty (40), kilometres. This discrepancy is immaterial in the circumstances of this case.

It was Ms. Thornton's evidence that the Union did not take issue with the movement of employees within forty (40) kilometres. Ms. Thorton stated that she spoke to Ms. Harper on two (2) occasions in 1997 on this subject and was informed that the Union did not object to such movement. She recalled that the Union's position was premised on the fact the issue was not addressed in the collective agreement and that, as a consequence, management possessed the right to reassign within forty (40) kilometres. Ms. Thornton documented this alleged understanding as follows in a letter to Ms. Harper dated September 16, 1997: "We were of the understanding that to request an employee to report to another work location/headquarters within 40 kms. was not an issue or covered in any Article of the Collective Agreement" (Exhibit #17). In cross-examination, it was suggested to her that Ms. Harper thought they had been speaking of permanent movement of employees rather than of temporary rotational assignments. Ms. Thornton replied that if Ms. Harper misunderstood the issue being addressed, she was not aware of such misunderstanding.

Ms. Harper was called in reply to respond to Ms. Thornton's evidence. Ms. Harper recalled that she and Ms. Thornton discussed a "what if" situation in general terms, rather than a specific situation. She testified that she provided examples of where it might be possible to move an employee's worksite within forty (40) kilometres, such as the relocation of an entire office due to the expiration of a lease, a lateral transfer, or the abolition of a position. Ms. Harper did not remember any specific discussion about rotational assignments. It was the thrust of her evidence that the Union's position today is the same as it was in 1997, namely, that the Employer can move employees around within forty (40) kilometres of their permanent work location on a rotational basis as long as they are compensated appropriately pursuant to the requirements of the collective agreement.

After considering all of the evidence surrounding the exchanges between Ms. Thornton and Ms. Harper, I have not been persuaded that there was a shared understanding as to how management was entitled to administer rotational assignments. I think it preferable, in the

circumstances, to address the issue on the basis of the relevant

contractual provisions.

The Operator position at Odessa was formerly occupied by Mr. Harold Leakey. This employee had been on a leave of absence and was surplused from Odessa with the restructuring that occurred in 1996. When at Odessa, Mr. Leakey worked forty (40) hours per week. Ms. Heather Compson performed the Operator's job at Odessa following Mr. Leakey's departure. She worked in the job on a full-time basis for approximately one (1) year. Her headquarters was in Kingston. The evidence discloses that Ms. Compson reported directly to Odessa from her home for the start of the workday. Mr. Nickel subsequently replaced Ms. Compson at Odessa.

It is apparent that Mr. Leakey, Ms. Compson, Mr. Nickel and Mr. Caron all performed forty (40) hours of work per week while at Odessa. While Ms. Thornton agreed that this fact suggested the Odessa job might constitute a position, she did not consider the job as a vacancy for collective agreement purposes, such as posting. From her perspective, the job at Odessa was held on a temporary basis by a series of employees working out of the KSTP. Ms. Thorton conceded in cross-examination that given the length of Mr. Nickel's and Mr. Caron's tenure at Odessa, the position was "hardly temporary". While issues concerning the application of article 6 (Posting And Filling Of Vacancies Or New Positions) and article 8 (Temporary Assignments) may arise generally from the type of rotational assignment that occurred in this instance, it is unnecessary in my judgment to address such issues here. Counsel for the Union, in argument, made it clear that, while he referenced the articles for purposes of context, he was not submitting they had been breached in the circumstances of this case.

The Union asserted that Mr. Nickel and Mr. Caron were treated differently than other employees working in the Kingston Township Hub. The evidence relied on, much of which emanated from the cross-examination of Mr. Lewis, may be summarized as follows:

(i) Mr. Tim Richardson was assigned to Odessa to complete a

series of ad hoc tasks, some of which came up on short

notice. He was not rotated to Odessa as were the

grievors. While Mr. Richardson was accorded the status

of "Operator-in-training", he was not an OCWA employee.

Rather, he was an employee of Kelly Temporary Services.

Mr. Lewis stated that he, nevertheless, tried to give

Mr. Richardson "the same benefits as everyone else".

It is clear from a review of the Statement of Travel

Expenses, filed as Exhibit #12, that Mr. Richardson

was compensated for lunch on twelve (12) occasions

while he worked at Odessa. Odessa, as previously

noted, is twenty-one (21) kilometres from the KSTP

and meals would, therefore, not ordinarily be paid for

under the collective agreement. Mr. Lewis testified

that he approved the compensation on a discretionary

basis;

(ii) Mr. Randy Ethier was a Maintenance Mechanic with

headquarters in Kingston. In September, 1999, he was

assigned to Odessa on eight (8) days. These assignments

were referred to as ad hoc by Mr. Lewis. Mr. Ethier

received a paid lunch on each of the aforementioned days.

Mr. Lewis stated that he exercised his discretion in

Mr. Ethier's favour. He advised that in so doing, he

considered the nature, conditions and complexity of the

job assigned;

(iii) Mr. Bruce Huskinson was another Operator with headquarters

at Kingston. He lived in the Lansdowne area. Mr. Huskinson

was rotated to the Kingston facilities in 1996 from

Lansdowne. I was told that he regularly worked three (3)

days a week in Lansdowne and two (2) days in Kingston.

A Statement of Travel Expenses, filed as Exhibit #13,

showed that Mr. Huskinson received a lunch allowance on

thirteen (13) occasions when he worked at Lansdowne in

September, 1998. Mr. Lewis indicated that Mr. Huskinson

received a paid lunch on those occasions as he was more

than twenty-four (24) kilometres from his headquarters.

The allowance was provided notwithstanding the fact that

this employee lived in Lansdowne. Mr. Lewis described

this result as "a quirk". On the days Mr. Huskinson

worked in Lansdowne, he reported directly to

that facility rather than first driving to Kingston to

collect a company vehicle for a return trip to Lansdowne.

Mr. Lewis believed that Mr. Huskinson used his own

vehicle to travel to Kingston on the days he worked there;

(iv) Mr. Andy McGrath was the Electrician responsible for

electrical maintenance at all of the projects in the

Kingston Township Hub. His headquarters was the KSTP.

At some point, this employee was rotated to the Kingston

Water Treatment Plant. On the evidence, Mr. McGrath

picked up a company vehicle from headquarters and drove

same to the Water Treatment Plant for the period of his

rotation. Mr. Lewis asserted that this employee was

treated differently from the grievors for good reason.

He advised that after performing the required checks at

the Water Treatment Plant, Mr. McGrath would proceed to

do electrical maintenance work across the Hub, as needed.

The company vehicle, wherein the necessary equipment was

stored, was used for this purpose. This vehicle was

returned to the KSTP at the end of the day and would

remain there overnight for security reasons.

The relevant provisions of the collective agreement read:

ARTICLE 2 - MANAGEMENT RIGHTS

2.1 For the purpose of this Agreement and any other

Collective Agreement to which the parties are

subject, the right and authority to manage the

business and direct the workforce, including the

right to hire and lay-off, appoint, assign and

direct employees; evaluate and classify positions;

discipline, dismiss or suspend employees for

just cause; determine organization, staffing levels,

work methods, the location of the workplace, the

kinds and locations of equipment, the merit system,

training and development and appraisal; and make

reasonable rules and regulations; shall be vested

exclusively in the Employer. It is agreed that

these rights are subject only to the provisions of

this Agreement and any other Collective Agreement

to which the parties are subject.

ARTICLE 11 - HEADQUARTERS

11.1 This article applies to employees who do not attend

at or work at or work from any permanent ministry

facility in the course of their duties, but for

whom a permanent ministry facility or other place

is designated as an employee's "headquarters" for

the purposes of the provisions of this Collective

Agreement and of various allowances which require

a headquarters to be specified.

ARTICLE 13 - KILOMETRIC RATES

13.1 If an employee is required to use his or her own

automobile on the Employer's business the following

rates shall be paid effective August 1, 1991:

Kilometres Driven Southern Ontario Northern Ontario

0- 4,000km 30 cents/km 30.5 cents/km

4,001-10,700km 26 cents/km 26.5 cents/km

10,701-24,000km 22 cents/km 22.5 cents/km

over 24,000km 18 cents/km 19.0 cents/km

13.2 Kilometres are accumulated on the basis of a fiscal

year (April 1 to March 31, inclusive).

13.3 Attached hereto as Appendix 3 (Use of Privately

Owned Automobiles).

ARTICLE 14 - TIME CREDITS WHILE TRAVELLING

14.1 Employees shall be credited with all time spent in

travelling outside of working hours when authorized

by the ministry.

14.3 When travel is by automobile and the employee travels

directly from his or her home or place of employment,

time will be credited from the assigned hour of

departure until he or she reaches his or her

destination and from the assigned hour of departure

from the destination until he or she reaches his

or her home or place of employment.

14.6 All travelling time shall be paid at the employee's

basic hourly rate or, where mutually agreed, by

compensating leave.

ARTICLE ADM 12 - MEAL ALLOWANCE

ADM 12.2.1 Cost of meals may be allowed only:

ADM 12.2.2 If during a normal meal period the employee is

travelling on government business other than:

(a) on patrol duties, except as provided under

Article ADM 12.2.3, or

(b) within twenty-four (24) kilometres of his or

her assigned headquarters, or

(c) within the metropolitan area in which he or

she is normally working;

APPENDIX 3 - USE OF PRIVATELY OWNED AUTOMOBILES

This letter will confirm the decision of Management

Board of Cabinet that the use of privately owned

automobiles on the Employer's business is not a

condition of employment.

The Union, in this instance, did not contest the right of the Employer to rotate, or assign, employees to a different work location within the Kingston Township Hub. Counsel for the Union argued, however, that the "personalized workplace" of Mr. Nickel and Mr. Caron was changed in respect of the period during which they were instructed to report directly to Odessa. It was his submission that this change, without any corresponding change in headquarters, triggered entitlement under the collective agreement to reimbursement for mileage and travel time. It was counsel's further submission that the extent of such entitlement should be measured from the grievors' headquarters which, at all material times, remained the KSTP.

Counsel for the Union acknowledged that neither grievor would ordinarily be entitled to a meal allowance for lunch when working at Odessa, as that location is within twenty-four (24) kilometres of their headquarters. He noted, however, that Mr. Richardon and Mr. Ethier both received the allowance when performing similar work at Odessa. Counsel suggested that there was no real distinction between ad hoc and rotational assignments. On his analysis of the situation, the Employer, in the case of these other employees, had opted to forego its strict legal right to rely on the "twenty-four (24) kilometre rule". He asserted that as a matter of fairness and consistency, both Mr. Nickel and Mr. Caron should be treated in the same fashion.

Counsel for the Union argued that the Employer, in effect, required the grievors to use their privately owned automobiles on its business contrary to Appendix 3. He noted that there was no other form of public transportation to Odessa and that Mr. Caron had been compelled to use vacation days when his vehicle was unavailable for the two (2) days mentioned earlier. Counsel also submitted the evidence, surrounding the deployment of company vehicles around the Hub, demonstrated that there would have been no operational difficulty in allowing the grievors to travel in a company vehicle to and from Odessa and to leave such vehicle at Kingston overnight. On his assessment, sufficient vehicles remained at all sites for on-call purposes.

Counsel for the Union was critical of the manner in which the Employer acted in this case. He suggested that little, if any, consideration was given to the grievors' preferences or personal considerations. He referred, in particular, to Mr. Nickel who had structured his personal life around his headquarters in Kingston, in the sense that his wife's employment and his child's/children’s' day care arrangements were located there. Counsel referenced the inconvenience experienced by this grievor as a consequence of having to take his family to Kingston and then return back to Odessa for the 7:30 a.m. start of the work day. Similar inconvenience, in his judgment, was experienced at the end of the day when the travel was reversed. I was asked to find that there would have been little impact on the Employer's operations had the grievors been permitted to arrive at Odessa at 7:45 a.m. and to leave there at 3:45 p.m.

The Union asked for the following by way of remedy: (i) a finding that the Employer had violated the collective agreement; (ii) an order that the Employer adhere to the collective agreement and cease the contested practice; (iii) an order that the Employer reimburse the grievors for the additional mileage and travel time resulting from the rotational assignments in Odessa; (iv) an order that the grievors be reimbursed by way of a meal allowance for lunch for the period they were at Odessa; (v) an order that interest be paid on all amounts found owing; and (vi) an order to rectify the Employer's improper requirement that Mr. Caron use vacation days when unable to travel to Odessa in his personal vehicle.

The Union relied on the following awards in support of its position: OPSEU (MacIntosh) and Ministry of Natural Resources, 2587/96 (Gray); OPSEU (Union Grievance) and Ontario Clean Water Agency, 263/98 (Abramsky).

Counsel for the Employer emphasized that prior to the rotation to Odessa, Mr. Nickel commuted thirty-five (35) kilometres from his residence to Kingston. She noted that subsequent to May, 1997, Mr. Nickel only had to travel fourteen (14) kilometres from his residence to Odessa. From her perspective, his commute was, therefore, shortened in terms of both distance and time. Counsel suggested that Mr. Nickel continued to drive to Kingston for reasons related to personal choice and convenience. It was her submission that the Employer should not have to pay this grievor for "doubling back" to Odessa. Indeed, she argued that Mr. Nickel's wife could have dropped him off on her way to Kingston and picked him up on the way home. Simply stated, it was the Employer's position that as the location of Mrs. Nickel's workplace and the child care arrangements were outside of its control, and beyond the purview of the collective agreement, it should not be responsible for compensating Mr. Nickel for travel related thereto.

Counsel for the Employer stressed that the additional five (5) kilometres travelled by Mr. Caron to get to Odessa was not significant. She advanced the same argument in respect of the additional time spent by this grievor to travel from his residence to Odessa. This difference was estimated as between seven (7) and sixteen (16) minutes, each way.

Counsel for the Employer argued that when these grievors were travelling to Odessa they were, in substance, commuting to the work location, just as they did when they reported to Kingston. In her submission, the grievors were not on the Employer's business when engaged in this commute and, accordingly, were not entitled to be paid for either kilometres or time. In the alternative, counsel suggested that only the differential in distance and time should be awarded. On her analysis, this would only benefit Mr. Caron, as Mr. Nickel had a shorter commute after being ordered to report directly to Odessa.

It was the Employer's further position that neither grievor was entitled to a meal allowance for lunch for the period they worked out of Odessa. This position was premised on the fact Odessa is within twenty-four (24) kilometres of the KSTP and that, as a result, there is no contractual foundation for awarding the benefit sought. Counsel also observed that Mr. Richardson was not an OCWA employee and that Mr. Ethier was a Maintenance Mechanic whose entire job consisted of numerous

ad hoc trips to various projects. In summary, counsel suggested that these different circumstances supported the variance in approach. She lastly noted that neither grievor submitted expense claims for the lunches now claimed in this proceeding.

Counsel for the Employer disputed the Union's assertion that Appendix 3 was violated when the grievors were asked to report to Odessa through use of their own personal vehicle. In her submission, both grievors had a duty to show up at work regardless of whether the worksite was located in Kingston or Odessa. She stated it was material that Mr. Nickel and Mr. Caron had access to company vehicles once they arrived at Odessa. Counsel suggested that the provision of such a vehicle for ad hoc trips was the extent of the Employer's obligation under Appendix 3. She rejected the grievors' claim that they were entitled to be provided with a company vehicle for purposes of getting to Odessa. In this regard, counsel referenced the Position Specification and Class Allocation form for the Operator position. That form contemplates that Operators, such as these grievors, may be called upon to work at all of the projects across the Kingston Township Hub.

For all of the above reasons, counsel for the Employer asked that both grievances be dismissed. In the alternative, she submitted that the difference in distance and time referable to the rotation should be paid only to Mr. Caron on the grounds indicated above. The Employer relied on the following awards: OPSEU (Williamson et al.) and Ministry of Transportation and Communications, 187/81 et al. (Barton); OPSEU (Ross) and Ministry of Transportation and Communications, 145/82 (Jolliffe); OPSEU (Beaton) and Ministry of Natural Resources, 1392/88 (Samuels); OPSEU (Vernon) and Ministry of Transportation, 1485/86 (Watters); OPSEU (Kosnaskie) and Ministry of Revenue, 2116/87 (Kates); OPSEU (Elliot) and Ministry of Labour, 1544/89 (Dissanayake); OPSEU (Pool) and Ministry of Correctional Services, 596/83 (Roberts); OPSEU (Gonzalez) and Ministry of Correctional Services, 1782/93 (Kaplan); OPSEU (Muscatello) and Ministry of Correctional Services, 762/83 (Brent).

The parties agree that article 11 of the collective agreement is inapplicable to this dispute as the grievors had a real, in contrast to a designated, headquarters at the KSTP. In the language of article 11.1, the grievors attended at or worked at or from a permanent OCWA facility in the course of their duties. In Beaton, headquarters was defined as "where the employee works, or the employer's facility which is used as the employer's base of operations" (page 6). In MacIntosh, headquarters was described as "the location at which he or she ordinarily performs the work of the position to which he or she has been appointed" (pages 5-6). The excerpts from these two (2) awards accurately depict the link between the grievors and the work location at the KSTP.

The parties further agree that the grievors' headquarters was not changed by the rotational assignment to Odessa. I note the following observation, as found at page 8, in the MacIntosh award:

"An employee's headquarters location does not change merely

because the employer temporarily requires him or her to work

at some distance from the headquarters location associated

with his or her position. This is so even if the work

performed away from headquarters is the same as the work the

employee performs at headquarters. If (it) were otherwise,

provisions with respect to travel, accommodation and meal

expenses which become payable when an employee is required

to work at a distance from his or her headquarters would be

meaningless."

It is clear from the evidence that Mr. Nickel and Mr. Caron were both hired into the KSTP and were told that it would serve as their headquarters. The grievors worked out of that facility for a number of years prior to the events giving rise to this dispute. While they would periodically work at other projects in the Kingston Township Hub, as contemplated in their position description, their home base was always the KSTP. I find it understandable in the circumstances why Mr. Nickel would structure and organize certain aspects of his personal life around Kingston. While, to a certain extent, this may have been a matter of personal choice and convenience, the selection of that location was predicated in large measure on the Employer's decision to make the KSTP the headquarters for his position.

Before turning to the specific circumstances of this case, I make the following general observations with respect to the concept of headquarters:

(i) a headquarters location is the base at or from which

employees perform their work. Employees, unless

otherwise agreed or directed, are normally expected to

report to headquarters at the start of their work day;

(ii) employees are further expected to commute to and from

work on their own time and by whatever means of

personal transportation they select. In the ordinary

course, the Employer is not responsible to compensate

employees for the distance or time involved in such

travel. Nor is the Employer required to provide a

vehicle to facilitate the commute. In a sense, the

concept of headquarters is a neutral or objective

standard given that it excludes consideration of the

location of an employee's residence, a matter which

is obviously totally outside of the Employer's control;

(iii) if after reporting to headquarters, an employee

travels to a different work location, he

or she may be entitled to claim contractual allowances

for kilometres travelled in his or her own vehicle and

for meals. In both instances, the employee must be on

the Employer's business and must otherwise satisfy the

specific requirements of the allowance provisions. If

travel is outside of working hours, the employee may

also be entitled to claim time credits in respect of

same. In each instance, and subject to a contrary

indication in the collective agreement, the eligibility

for, and the extent of entitlement, is referable to,

and calculated from, the headquarters location. In my

judgment, this approach is equally applicable to a

situation where, as here, the employee is instructed to

report directly to another work site without first

attending at headquarters;

(iv) as noted, Appendix 3 provides that the use of privately

owned automobiles on the Employer's business is not a

condition of employment. The fact an employee is

required to commute to headquarters by car does not

infringe this provision as such commute is not part of

the Employer's business. On my reading, Appendix 3

would be contravened if the Employer insisted that an

employee use their private vehicle to travel to work

sites other than their headquarters or to engage in

the type of ad hoc trips referenced earlier in this

award. If an employee agrees to use their personal

vehicles for these purposes, he or she is clearly

entitled to claim for the kilometres travelled. As

stated previously, this Employer deployed OCWA

vehicles at Kingston, Odessa and Lansdowne for use

by employees on ad hoc trips.

On the evidence, prior to May, 1997, Mr. Nickel commuted thirty-five (35) kilometres from his residence in Morven to the KSTP. Including the return trip at the end of the day, he drove his own vehicle a total of seventy (70) kilometres. After the aforementioned date, Mr. Nickel's commute to Odessa, via Kingston, totalled fifty-six (56) kilometres each way. In total, he was required to operate his vehicle an additional forty-two (42) kilometres each day. This represents the distance of a return trip between headquarters and Odessa.

Prior to February, 1998, Mr. Caron commuted nine (9) kilometres

from his residence to the KSTP. Including the return trip at the end of the day, he drove his vehicle a total of eighteen (18) kilometres. After the aforementioned date, Mr. Caron's commute to Odessa from his residence totalled fourteen (14) kilometres each way. In total, this grievor was required to operate his vehicle an additional ten (10) kilometres each day.

It is apparent that both Mr. Nickel and Mr. Caron travelled the additional kilometres, as calculated above, outside of working hours. This was the direct result of the Employer's direction that they be at Odessa at 7:30 a.m. and remain there until the end of the work day at 4:00 p.m.

I have not been persuaded that the grievors' claim for kilometres and time can be determined on the basis of the Employer's "Forty (40) Kilometre Rule", as described by Ms. Thornton. Firstly, I note that it is an unwritten practice. During the course of the hearing, the Employer did not seek to explain how or why it was developed, nor how such practice meshed with other provisions found in the collective agreement. Equally as significant, I note that it has been applied in an inconsistent fashion as Mr. Nickel, himself, was permitted to travel to and from Odessa in the period February to May, 1997 in a company vehicle and on company time. The difficulty with the practice is that it forces an employee to shoulder all of the extra mileage costs and travel time when the work location is moved less than forty (40) kilometres away from headquarters at the Employer's initiative. This result would seem inconsistent with the basic concept of headquarters, as canvassed above, and creates a threshold for entitlement under articles 13 and 14 which is not contained within the articles themselves.

After considerable thought, I conclude that the Employer must compensate Mr. Nickel for the extra kilometres he was required to travel each day and for the additional time spent in that travel. I cannot accept the approach advanced by the Employer as it would, in effect, treat the grievor's headquarters as Odessa for the period of the rotational assignment and would ignore the fact that his headquarters remained the KSTP at all material times. I find it more appropriate to calculate and measure Mr. Nickel's entitlement from his actual headquarters, as his primary obligation was to report to work there. While it is possible that another employee living near Napanee might welcome a direct commute to Odessa because of the lesser distance and travel involved, that option was not open to this grievor. As stated previously, he was required to first travel to Kingston, before proceeding to Odessa, because of family commitments undertaken as a consequence of the location of his headquarters. I do not see it as an unfair burden to require the Employer to compensate Mr. Nickel for the Kingston-Odessa-Kingston segment of his travel, as it was the Employer's initiative to have him report to a location other than his headquarters. I exclude from the obligation to compensate any days on which Mr. Nickel agreed with the Employer to report directly to Odessa.

I reach the same conclusion in respect of Mr. Caron. More specifically, I find that the Employer must compensate him for the extra kilometres he was required to travel each day and for the time spent in that travel. While entitlement would ordinarily be measured from headquarters, the calculations referred to previously in respect of Mr. Caron's travel from home represent the actual distance travelled and the time devoted to such travel. I note from article 14.3 that, in certain circumstances, travel directly from an employee's home is contemplated. In my judgment, this is a reasonable approach to adopt in fashioning a remedy for Mr. Caron. This type of calculation would not be appropriate in respect of Mr. Nickel as Morven to Odessa was not the actual route taken for the reasons expressed above which I have found to be legitimate.

As stated previously, prior to the events giving rise to these grievances, Mr. Nickel and Mr. Caron were expected to report to their headquarters at the KSTP for the start of the work day. As a consequence of a decision taken by the Employer for business reasons, they were instead directed to report to Odessa. In this factual context, I think that the grievors were on the Employer's business when travelling to the rotation location. In my judgment, the Employer was not at liberty to unilaterally increase their travel time without providing time credit for travel. This award will serve to compensate the grievors for the extra distance and time incurred as a consequence of the Employer's decision to rotate them to Odessa. At the same time, it factors out of the calculation the distance and time involved in their regular commute to Kingston.

On a plain reading of the collective agreement, the grievors were not entitled to a meal allowance in respect of lunches taken while at Odessa. This results from the fact that Odessa was within twenty-four (24) kilometres of their assigned headquarters at the KSTP. Given this fact, there is no contractual foundation for the claim. The Union, instead, relies on evidence that certain other persons, most notably Mr. Richardson and Mr. Ethier, received meals while working at Odessa. On my assessment, this evidence does not support the grant of a benefit to the grievors. It is material, in my judgment, that Mr. Richardson was not an OCWA employee at the time and that Mr. Ethier, a Maintenance Mechanic, was not on an extended rotation while at Odessa but, rather, was there on a series of ad hoc trips. While this Vice-Chair might not have exercised discretion as Mr. Lewis did, I am not in the circumstances prepared to second guess his decisions and am even more reluctant to determine that he bound the Employer to provide these grievors with a benefit to which they were not entitled under the collective agreement.

The Union asked that I rectify the consequences of the Employer's requirement that Mr. Caron take vacation or sick days when his vehicle was being repaired and thereby unavailable for travel to Odessa. I decline to order the relief sought. On my reading, Mr. Caron's grievance of January 19, 1998 focused on the directive issued by the Employer which allegedly changed his legal headquarters contrary to the collective agreement. In my view, the requirement to use vacation or sick time which occurred some three (3) months later was a distinct matter that could have been the subject of a separate grievance. I think it would be wrong to address this issue for the first time in this proceeding, some two (2) years after the fact.

As indicated above, the parties referred to a large number of prior awards in support of their respective submissions. Both counsel readily acknowledged that the circumstances of this case were somewhat novel and had not been squarely addressed by past jurisprudence.

Of all of the awards cited, Muscatello bears the closest resemblance to the instant case. The grievor in that matter was a Probation Officer whose headquarters was the Brampton Parole Office. The grievor resided approximately three (3) kilometres from his office. In October, 1983, the grievor was assigned to the Mimico Correctional Centre. The award describes the purpose of the assignment in the following terms: "the assignment was temporary and for the specific purpose of staff development, that is, to educate him in other aspects of the job for the benefit of both himself and the Employer" (page 10). This developmental assignment lasted for six (6) months. The grievor's headquarters was changed to Mimico for the duration of the assignment.

On the evidence, the change in the grievor's headquarters caused him to travel an extra forty-eight (48) kilometres a day in terms of the commute to and from work. Additionally, the commute took him forty-five (45) minutes of driving time each way. The grievor commuted on his own time and in his own vehicle. As in the present case, there was no public transportation between the grievor's residence and the new work site. The grievor filed an expense sheet for the month of October, 1983 claiming mileage between his home and Mimico, and lunches for each day at Mimico. The grievance was filed when these claims were refused. The grievance requested the following relief: (1) mileage from the grievor's residence to the Mimico Correctional Centre; (2) meal allowance; and (3) travel time to and from the developmental assignment.

The Board found that in travelling to and from the developmental assignment, the grievor was required to use his own automobile on the

Employer's business. In reaching this conclusion, the Board referenced the following facts: (i) the absence of public transportation; (ii) the grievor was allowed to work at the Brampton Office on days when his automobile was not operating; and (iii) in the circumstances of a developmental assignment of temporary duration, it would have been impractical and unreasonable for the grievor to relocate. The Board, therefore, determined that the grievor should be paid mileage under the former equivalent of current article 13 in respect of the difference between what the grievor "would normally have to drive to work in Brampton and what he had to drive to work in Mimico" (page 13).

It is clear from a review of the award that in reaching the above decision the Board considered that the Employer had assumed an obligation to treat employees fairly and equitably in the administration of travel expense claims. This obligation was implied from certain sections of the Ontario Manual of Administration. On this point, the award states:

".....By designating Mimico as the grievor's headquarters

and refusing to honour claims for travel expenses between

his home and Mimico, the Employer was in effect placing on

the grievor all of the financial burden which would be

incurred at its request for his development as a Probation

Officer in its service. In our view such a result under

the circumstances of this case would not be fair and

equitable to the grievor when travel and living expenses

can be allowable expenses for staff development courses.

In other words, we do not consider that it is necessarily

fair and equitable to allow the Employer to defeat any

obligation which it may have to pay for travel expenses

in connection with internal staff development assignments

by means of re-designating an employee's headquarters".

(page 11)

No reference was made in the case now before me to the Ontario Manual of Administration or to any other similar policy. I nevertheless consider the broader reasoning expressed in Muscatello to be consistent with the approach I have elected to take in this instance. If legitimate travel expenses cannot be avoided by a redesignation of headquarters, surely they must be recognized in a situation where the headquarters remains unchanged in the context of a direction to report elsewhere.

The Board in Muscatello denied the grievor's request for a meal allowance and travel time. It denied the former on the basis that the grievor's assigned headquarters for the period was Mimico and he was normally working there for the period in question. As in the present case, that grievor was therefore not entitled to the meal allowance provided under the collective agreement. The Board denied the claim for travel time on the basis that such time was spent commuting between the grievor's residence and the new headquarters. In this regard, the award states: "We do not consider that Article 23.1 (now article 14.1) was intended to compensate employees for such time, but rather that it was intended to deal with travelling other than that between home and headquarters" (page 13). The facts in Muscatello are distinguishable as the present Employer did not change the headquarters of either Mr. Nickel or Mr. Caron. When travelling to Odessa, these employees were clearly "travelling other than that between home and headquarters". As a result, I do not consider that the award in Muscatello assists the Employer on the issue of travel time.

In my judgment, the Employer was entitled to rotate employees to the various projects in the Kingston Township Hub pursuant to the

management rights contained in article 2.1 of the collective agreement. That article, inter alias, vests in the Employer the right to assign and direct employees and to determine the location of the workplace. I have no doubt that the rotational assignments were taken for sound business purposes and were designed to promote the legitimate interests of OCWA. The thrust of this award is that the exercise of this right was subject to other applicable provisions of the collective agreement, namely, articles 13 and 14 and Appendix 3. Such exercise also demanded that the Employer consider the impact of the grievors' headquarters being located in Kingston. Ultimately, I have found that the Employer must compensate Mr. Nickel and Mr. Caron for the extra kilometres travelled and for the additional time spent in such travel. I have also been persuaded that the Employer's insistence they use their own vehicles to travel to a worksite other than their headquarters amounted to a violation of Appendix 3. The grievors' use of their vehicles for this purpose provides further support for the decision to compensate them for the extra kilometres travelled.

On the evidence, I am satisfied that the Employer could have provided a company vehicle to these grievors for travel to and from Odessa without any prejudicial effect on its operations. Had that been done, the Employer obviously would not have been responsible for mileage. If Mr. Nickel had been offered the use of a company vehicle to travel from his residence to Odessa and return, it would have eliminated the need for him to first stop at Kingston before proceeding to the work location. Such a step might have set the foundation for an agreement on the issue of travel time. I raise this possibility as, in my view, there were several alternate ways in which entitlement could have been addressed by the parties so as to avoid the need for six (6) days of hearings. I encourage the parties to consider the negotiation of a protocol in respect of these rotational assignments to better serve their respective interests.

For all of the above reasons, I find that the Employer violated the collective agreement and order that the grievors be reimbursed for the extra kilometres travelled and the additional time spent in such travel. Mr. Nickel is not to be compensated for the days on which he agreed to report directly to Odessa. The grievors are entitled to an award of interest on all monies owing. The claim for meal allowance is denied, as is Mr. Caron's request surrounding his use of two (2) vacation days. I remain seized to deal with any issues relating to the implementation of this award.

Dated at Windsor, Ontario this 22nd day of August,2000.