GSB# 0840/99

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Professional Engineers & Architects of the Ontario Public Service

(Group Grievance)

Grievor

• and -

The Crown in Right of Ontario

(Ministry of Transportation)

Employer

BEFORE

Felicity D. Briggs

Vice-Chair

FOR THE UNION

Larry Robbins

Union Consulting Services

FOR THE EMPLOYER

Kelly Burke

Senior Counsel

Management Board Secretariat

HEARING

June 20, 2002, and October 10, 2002.

DECISION

On November 6, 1998 the parties arrived at a memorandum of agreement regarding the issue of time credits while travelling beyond the normal hours of work. While the parties were able to agree that “eligible employees” were entitled to travel credits they recognized that there might be future differences about eligibility. It was stated at paragraph 5:

Employees retain their right to grieve to determine eligibility, e.g. whether travel is an inherent part of their position. If successful, the grievor shall be eligible for the settlement in paragraph 3. The grievor shall continue to record claims until the grievance is resolved.

As anticipated, after the signing of the memorandum of agreement a number of grievances were filed regarding the issue of eligibility for travel credits. A hearing was held to adjudicate this matter and rather than have literally dozens of grievors attend to proffer evidence, the parties agreed that I would hear four specific fact situations and issue a ruling. The parties understood that it was likely that the disparate fact situations might bring about different results. It was hoped that I would issue a decision that would provide guidance to the parties and allow them to resolve the remaining outstanding issues. On April 18, 2001 I issued the decision and, as anticipated, the parties were able to resolve all remaining outstanding grievances but one.

At the first hearing one of the four fact situations I heard was that of Ms. Lynda Boyd, Geotechnical Engineer, Soils. I heard both viva voce evidence from Ms. Boyd in addition to the agreed facts submitted by the parties. For Ms. Boyd, one of the agreed facts was:

Part of her job responsibilities requires that she observe and remain vigilant of pavement conditions during any road trip. On the longer site visit trips, she would typically visit a number of sites on one trip.

In my decision I found, at page 27:

In my view, for the most part, travel is not an inherent part of the work. The travel merely got the grievors to their work. According to the evidence travel is not a core duty. It is a means of transporting the grievors to and from a worksite where they perform their work. Travel is an inherent part of the work (and therefore not subject to travel credits) if there is an actual component of work being performed at the same time.

Specifically, regarding Ms. Boyd, I said at page 29:

Ms. Boyd is somewhat different. She is a geotechnical engineer with clearly specified responsibilities. According to her evidence, Ms. Boyd is responsible for pavement inspections for a large section of the northern region. She was also responsible for monitoring pavement conditions during her travels in her designated area even when that is not the primary purpose of her journey such as when she is traveling to meetings held in Toronto. That monitoring and responsibility is, in my view, performing work. She was actually discharging specific and certain duties as an employee while traveling. Therefore, when she is traveling outside her normal hours by car she would only be entitled to travel credits when she is traveling outside her own designated area or at night when she cannot see the road to discharge that responsibility. Her claim is allowed to that extent.

It was not difficult to understand why the parties were unable to resolve Mr. Derek Daneff’s grievance. He is a Project Soils Engineer in the geotechnical section in Northwestern Ontario. He was classified at a PBE6 level until May 31, 1999 when he was upgraded to a PBE7. It was the Union’s position that Mr. Daneff does not monitor the condition of the pavement on a regular basis when he travels in the same fashion as Ms. Boyd and therefore he should be eligible for travel credits. The Employer suggested that Mr. Daneff’s duties and responsibilities are virtually identical to Ms. Boyd and therefore his claim should be denied.

It is not my intention to review the evidence in extensive detail. I heard evidence from Mr. Daneff, his supervisor Iain Galloway and Catharine Shaw, Manager of Human Resources for the Financial Control and IT sections of the Northwest region.

Mr. Daneff travels approximately 14,000 kilometers per year usually in a Ministry car. He is typically out of the office an average of 55 days per year. Mr. Daneff testified that he does not monitor the condition of the pavement as he travels the roads. He said that the majority of his work is site specific. He travels to various locations for distinct purposes and does not monitor the road along as he travels. He said that he travels by car to a site, performs his work and then returns by car either to his hotel or his home. His vast majority of his travel arises from three job functions, checking for frost heaving in the roads in the spring, road assessment for stress problems and to provide engineering expertise such as inspecting a capital project or providing advice to a consultant or to a Patrol Maintenance Technician. The road assessment function is performed by the grievor driving his vehicle slowly on the soft shoulder. He occasionally stops to check the road and often stops to make notes on his findings. It is not this aspect of his work that is at issue.

He stated, even under rigorous cross-examination on the point, that he does not watch or patrol the roads while he is driving to or from a work site. Although he was occasionally evasive in his responses in cross-examination, the grievor stated that he has never monitored the roads and that in his ten years of experience he has never reported any road deficiency that might require attention. Mr. Daneff explained that often at the end of his work-day he would “back-track” over the very road he had been assessing. The roads have an 18 year cycle and his work is to observe and remedy gradual changes. According to Mr. Daneff, that work cannot be performed from a fast moving car by one who is focusing his attention on the task of driving.

According to both Mr. Daneff and Mr. Galloway the Patrol Maintenance Technicians perform the task of monitoring and maintaining the surface of the road from the point it was built until it needs reconstruction. Mr. Galloway described these employees as the people “who drive the highway on a daily basis to make sure there are no issues.” The job specification for Patrol Maintenance Technicians states that the purpose of the position is:

Under the general direction of supervisor, monitors roadway conditions to ensure any hazards and or deficiencies are addressed; mobiles hired equipment in the winter as required to ensure established level of service criteria are met; inspecting work performed by contractors to ensure compliance to standards and contractual agreements.

Mr. Galloway testified that the grievor is responsible for approximately 25 per cent of the roads in the Northwest Region. Mr. Daneff is expected to observe and recognize any geotechnical changes in the highway. It was suggested that the monitoring of the roads is inherent to the grievors work. Mr. Galloway also testified that certain changes in the road surface could be observed while travelling the road at normal driving speed such as rutting or embankment failures. Further, Mr. Galloway said that he relies upon the grievor’s knowledge as well as his input at departmental planning meetings which has included road assessments. He explained the difference between the functions of Patrol Maintenance Technicians and those of the grievor. The Technicians, who know their road section “intimately”, are responsible for maintaining the road but if there are problems the department needs to know why the problem exists so there has to be geotechnical observation of road changes. The grievor’s failure to observe road changes would have a potentially negative impact on the work of the department. In cross-examination Mr. Galloway conceded that he never directed the grievor to monitor the road conditions when driving on Ministry business. He further agreed that when Mr. Daneff is performing his pavement surveys he is looking for gradual changes that would require close observation.

While the parties were waiting for this matter to come to hearing the grievor was inadvertently granted permission to and did take time off utilizing the travel credits at issue. I have not set out that evidence for reasons that will become apparent later in this decision.

UNION SUBMISSIONS

The Union conceded that this Board has already found that where there is an actual component of the work being performed, such as ongoing monitoring of the roads, time spent beyond normal hours is not eligible for time credits. However, the issue at hand is whether Mr. Daneff has road monitoring as an inherent part of his work. This issue is a matter of fact and the evidence must lead to a finding for the grievor. It was contended that even if such monitoring is an Employer expectation, that expectation is unreasonable. It was clear from the evidence of the grievor and Mr. Galloway that Mr. Daneff was never told that there was an expectation of this level of monitoring. Further, the evidence revealed that more than twenty five Patrol Maintenance Technicians actually do this type of work on an ongoing and daily basis.

The Union submitted that the Employer is improperly asking this Board to apply the decision it rendered to Ms. Boyd to the grievor. However, Mr. Daneff and Ms. Boyd do not have the same position nor do they perform the same work. It is important is remember that Ms. Boyd is a Geotechnical Engineer at the PBE8 level while the grievor is a Project Soils Engineer and has the lower classification of PBE7.

EMPLOYER SUBMISSIONS

The Employer contended that there could be little doubt that an aspect of the grievor’s work is the monitoring of the roads and my previous decision found that work does not bring about the payment of travel time outside normal work hours. The type of monitoring done by the Patrol Maintenance Technicians is different from the monitoring performed by Mr. Daneff. The grievor observes the roads through the eyes of an engineer. Simply put, that is not the same as the monitoring performed by the technicians. The evidence was that the grievor made comments and reported observations about the roads at various departmental meetings. This indicates that he does in fact monitor the roads during his travels. In any event, there can be no doubt that the grievor is responsible for monitoring the roads and therefore the grievance should be dismissed.

In reply, the Union suggested in determining this matter I should give the grievor’s evidence more weight because he is the person who is out in the field. Further, it should be recalled that Mr. Galloway stated he had no quarrel with the grievor’s work or his knowledge and he conceded that he never specifically directed the grievor to monitor the roads while travelling in his car. Those facts, coupled with the lack of any reference to pavement monitoring in the grievor’s job specification must lead me to uphold the grievance.

DECISION

In the case of Ms. Boyd, the parties agreed to the following (found at page 7of the original decision):

• Approximately 40% of her travel would be project site specific, to examine a problem anywhere in the Northern region, such as a construction problem, or a slope failure (side of a road falling down), etc. She would go to the site, make an assessment and decide whether any further investigation is required. The other 10% of her travel would be in connection with her Pavement Management function, which includes inspecting/observing sections of pavement from a moving or stationary vehicle.

• Part of her job responsibilities requires that she observe and remain vigilant of pavement conditions during any road trip. On the longer site visit trips, she would typically visit a number of sites on one trip.

Based on those facts and Ms. Boyd’s viva voce evidence I found that her pavement monitoring and responsibility for pavement conditions meant that she was discharging specific duties while travelling outside her normal hours and therefore not entitled to travel credits for that time.

In the first hearing, as in this instance, the Employer suggested that travel is an inherent part of the grievor’s work. At page 30 I stated:

…The dictionary definition of “inherent” provided stated that inherent is “something as a permanent and inseparable element, quality or attribute”. In my view, according to the evidence I cannot find that travel for these grievors is “a permanent and inseparable element” of the work at issue. While it is true that they travel to get to their work, the travel is not engineering work. As characterized in some of the earlier GSB decisions, the grievors’ travel was, in large measure, incidental.

Given the evidence of both the grievor and Mr. Galloway, I accept that the type of responsibility that the grievor has for pavement condition cannot be fulfilled by watching the pavement pass by at highway speeds. It might be that the grievor would report a road emergency such as a rock fall or an embankment failure although it is to be remembered that this has never occurred in his ten years of experience. However, this does not lead me to find that he monitors the road to the extent that it is an integral part of his duties.

The Employer suggested that to find for the grievor would be inconsistent with my earlier decision regarding Ms. Boyd. I disagree. Simply put, I find that the grievor and Ms. Boyd do not perform identical work. For instance, Ms. Boyd had certain supervisory responsibilities. Indeed, both their job titles and their PBE levels are different.

In the instant case, the grievor consistently and credibly denied monitoring of the roads during travel and Mr. Galloway did not provide evidence that would have me find otherwise. Further, I heard that there is a significant workforce of Patrol Maintenance Technicians who have ongoing road monitoring as a fundamental responsibility. By all accounts the grievor was never told that ongoing pavement monitoring is a task he should perform while travelling on Ministry business. Finally, the responsibility of ongoing road monitoring is absent from the grievor’s job specification.

In the case of Ms. Boyd, I found that the evidence established that she was responsible for monitoring the pavement conditions during her travels in her designated area even when that was not the primary purpose of her journey. I found that monitoring to be performing work. The evidence for Mr. Daneff was not similar and for that reason I cannot make a similar finding.

For all of those reasons, the grievance is allowed. I believe the issue of time credits already taken is disposed of by this result but I remain seized in the result there are any implementation difficulties.

Dated in Toronto, this 14^th day of January, 2003.