The Ontario Allied Construction Trades Council on behalf of United Brotherhood of Carpenters and Joiners of America, Local 2222 v. Ontario Hydro, 1982 CanLII 908

[1982] OLRB Rep. May 718

1054-81-M The Ontario Allied Construction Trades Council on behalf of United Brotherhood of Carpenters and Joiners of America, Local 2222, Applicant, v. Ontario Hydro, Respondent.

BEFORE: D. E. Franks, Vice-Chairman, and Board Members J. D. Bell and B. L. Armstrong.

APPEARANCES: Michael A Church, Bryon Black and Don McIntyre for the applicant; Ross Dunsmore and Gerry Knight for the respondent.

DECISION OF VICE-CHAIRMAN D. E. FRANKS AND BOARD MEMBER J. D. BELL; May 7, 1982

1. This is a referral of a grievance to the Ontario Labour Relations Board pursuant to section 124 of the Labour Relations Act. The grievance in question raises difficult problems concerning the interpretation of the collective agreement between the Electrical Power Systems Construction Association and the Ontario Allied Construction Trades Council.

2. The parties presented the Board with an Agreed Statement of Facts which reads as follows:

"The parties are agreed as to the following facts and are agreeable to such being placed before the Board for its consideration and the hearing into the above noted matter:

1. The proper name of the employer in this matter is Ontario Hydro, which is a member of The Electrical Power Systems Construction Association (known as "EPSCA").

2. The applicant trade union, Local Union 2222 of the United Brotherhood of Carpenters and Joiners of America, as represented by the Ontario Allied Construction Trades Council and the employer, Ontario Hydro, as represented by the Electrical Power Systems Construction Association, are bound by the terms of a Master Collective Agreement entered into between the parties, which is dated February 13th, 1981 and was signed March 13, 1981. The parties are also bound by the terms of the "Foreman Appendix" appended to the aforementioned Master Collective Agreement dated December 12, 1980 and the "United Brotherhood of Carpenters and Joiners of America Appendix" which is incorporated by a letter of understanding dated July 31, 1980.

3. The parties are agreed that the proper employer is Ontario Hydro and that the applicant will request the Board to exercise its discretion in permitting an amendment to the style of cause in this matter which will reflect such, and the employer will not object to such a request for an amendment on behalf of the applicant.

4. On Sunday, March 1, 1981 four (4) journeymen carpenters and one (1) carpenter foreman, all members of the applicant union in the employ of the "employer" worked pre-arranged overtime at the employer's Bruce Generating Station "A". The employees commenced work at 8:00 a.m. and worked until 1:00 p.m. when they were sent home. The employees worked through their normal lunch break and were paid accordingly for this period.

5. In respect of the above-noted work the carpenters in question were paid for five (5) hours work at the applicable overtime premium rate (double time) by the employer. The employees were also paid the applicable travel time allowance by the employer.

(a) There are no normally scheduled hours for carpenters on Sunday.

6. A grievance was initiated and filed with the employer dated March 6, 1981 by the applicant trade union on behalf of the employees in question with respect to an allegation by the union that the employer had breached the terms of the Collective Agreement in this matter.

7. The employer agrees that the grievance as filed was timely, and that the grievance procedure in force between the parties has been followed as required under the terms of the Collective Agreement in question.

8. The trade union agrees that the employer has followed the grievance procedure in question and has responded to each step of the grievance procedure to date in writing.

9. The grievance at this date remains outstanding between the parties and the parties at this time request the assistance of the Board in settling this matter."

By way of background it should be added that on the Friday before the Sunday in question, the foreman made up a team to work on the Sunday. The gist of the grievance filed by the union in this matter is that the employees in question should have been paid 16 hours pay rather than the 10 hours pay which they were actually paid.

3. Since the grievance before the Board involves matters of interpretation of the collective agreement, we will set out various articles which shall be referred to later. These are from the Master Portion of the collective agreement between the Ontario Allied Construction Trades Council and EPSCA:

"Article 17

CALL-IN PAY

17.1 When an employee is called in to work outside of his normal hours of work, he shall receive a minimum of four (4) hours' work at the appropriate premium rate plus travel allowance where applicable.

Article 18

REPORTING PAY

18.1 An employee who reports for work, unless directed not to report the previous day by his Employer, shall receive a minimum of four (4) hours' pay at the applicable rate when he reports for work but is given no opportunity to work because none is available. This allowance will be paid to an employee if he is requested to report for work for any part of the first half of the shift and an additional four (4) hours will also be paid if he is requested to report for work for any part of the second half of the same shift, together with travel allowance if applicable. It is not intended by this Article that an employee receive a reporting pay allowance greater than his pay for normal daily hours.

Article 28

HOURS OF WORK

28.1 The normal weekly hours of work for all employees of Employers covered by this Agreement shall be thirty-eight (38), except as described in sections 28.2, 28.3, 28.4 and 28.5.

The weekly hours shall be worked in four (4) eight (8) hour days, Monday to Thursday inclusive, with the remaining six (6) hours to be worked on Friday.

28.2 The hours of work for such work as driveway and parking lot construction, railroad construction, landscaping, tunnelling, precast concrete erection, fencing or demolition, shall be as established in applicable local agreements for the class and character of work.

An applicable local agreement shall be an agreement between a local of any union signatory to this Agreement and a builders' exchange, contractors' association or contractor applicable in the locality of the project for the class and character of the work.

28.3 The weekly hours of work for structural steel erection shall be forty (40) hours made up of five (5) days of eight (8) hours each, Monday to Friday inclusive.

28.4 The weekly hours of work for site preparation and earth dams shall be 45 hours made up of five (5) days of nine (9) hours each, Monday to Friday inclusive.

28.5 The hours of work at all Lines and Stations Construction REV locations and Miscellaneous Projects (excluding Lakeview and R. L. Hearn Generating Stations), except those set forth in sections 28.2 and 28.4, shall be 40 hours per week made up of five (5) days of eight (8) hours each, Monday to Friday inclusive.

A Miscellaneous Project is any work undertaken by Ontario Hydro's Generation Projects Division which will require less than one year to complete and comprise a total project work force of not more than one hundred men at one time.

28.6 PROJECT DAILY HOURS

(a) Day Work Only

The normal starting time for day work hours shall be 8:00 a.m. By mutual agreement between EPSCA and the Council, the starting time may be varied by one-half hour either way. This variance will be established at the prejob conference or while the job is in progress.

(b) Shift Work

(i) Shift work may be established providing there are at least four consecutive days of shifts to be worked excluding Saturdays, Sundays and Statutory Holidays.

(ii) The normal starting time for day shift hours shall be the same as the day work hours described in section 28.6(a).

(iii) On Monday to Thursday inclusive, the second shift hours shall start at 4:30 p.m. or a variance of one-half hour either way to coincide with the end of the day shift. On Friday, the second shift hours may start at 4:30 p.m. or at the end of the day shift.

(c) Hours of Work — Special Circumstances

It may be necessary from time to time to vary the hours of work established in sections 28.6 (a) and (b). Any amendments to the hours of work will be established by mutual agreement between EPSCA and the Council at the prejob conference or while the job is in progress.

28.7 The shift rate will be based on the day in which the shift begins.

28.8 The lunch period will be taken no more than four (4) hours after the start of the shift and will be one-half hour in duration."

From the appendix specifically relating to carpenters the following articles 2, 3, 4, and 6:

"Article 2

WAGES

2.1 GENERATION STATION PROJECTS

The rates of pay for employees in the classifications listed in Article 1 of this Appendix and working on Generation Station Projects shall be as set forth in the wage schedules attached hereto, subject to 2.3 below.

2.2 LINES AND STATIONS CONSTRUCTION ZONES AND MISCELLANEOUS PROJECTS

Wages rates for employees in the classifications listed in Article 1 of this Appendix and working in Lines and Stations Construction Zones and on Miscellaneous Projects shall be as set forth in the area rate schedules for each work location and area, subject to 2.3 below.

2.3 Effective May 1, 1974, and until April 30, 1982, EPSCA will REV amend the attached wage schedules and the area rate schedules for the classifications listed in Article 1 of this Appendix to conform to the hourly rates paid in the locality by the employers under agreement with the Union for construction work of a related nature.

2.4 In any locality where a rate for Resilient Floor Worker and Carpet Layer has not been established by agreement between employers and the Union for construction work of a related nature, the EPSCA Resilient Floor Worker and Carpet Layer rate shall be 90 per cent of the EPSCA Carpenter Journeyman rate in the locality.

2.5 EPSCA will provide the Council with current area rate schedules.

2.6 The rate for subforemen covered by this Appendix shall be the appropriate journeyman rate plus 50 cents per hour.

Article 3

SHIFT DIFFERENTIAL RA TE

3.1 Employees required to work shift work, other than the regular day shift, shall receive a shift differential of time and one-seventh for normal scheduled shift hours worked.

Article 4

OVERTIME RATES

4.1 Overtime rates are paid for work performed outside of normal hours as defined in the "Hours of Work" article of the master portion of this Agreement and for work performed on Saturday, Sunday and the Statutory Holidays listed in the master portion of this Agreement. Overtime rates shall be calculated as a premium over the appropriate shift rate.

4.2 GENERATION STATION PROJECTS

Overtime rates of pay for employees in the classifications listed in Article 1 of this Appendix and working on Generation Station Projects shall be as set forth in the overtime schedule attached hereto, subject to 5.4 below.

4.3 LINES AND STATIONS CONSTRUCTION ZONES AND MISCELLANEOUS PROJECTS

Overtime rates for employees in the classifications listed in Article I of this Appendix and working in Lines and Stations Construction Zones and on Miscellaneous Projects shall be as set forth in the area rate schedules for each work location and area, subject to 5.4 below.

4.4 Effective May 1, 1974, and until April 30, 1982, EPSCA will REV amend the attached overtime schedules and the area rate schedules for the classifications listed in Article 1 of this Appendix to conform to the overtime rates paid in the locality by employers under agreement with the Union for construction work of a related nature, excluding Divers.

4.5 Overtime rates for divers as per the classification listed in Article I of this Appendix for all Lines and Construction Zones and Miscellaneous Projects shall be two times the appropriate shift rate paid for all hours worked outside of the normal hours in any one day, Monday to Friday, and for all hours worked on Saturday, Sunday and the Statutory Holidays listed in the master portion of this Agreement.

4.6 In any locality where the overtime rate for Resilient Floor Worker and Carpet Layer has not been established by agreement between employers and the Union for construction work of a related nature, the EPSCA Resilient Floor Worker and Carpet Layer overtime rate shall be the same as the EPSCA Carpenter Journeyman overtime rate in the locality.

4.7 EPSCA will provide the Council with current area rate schedules.

4.8 When overtime work is required, a minimum of one-half (1/2) hour's work will be provided.

Article 6

INCLEMENT WEATHER PAY

6.1 When an employee reports at the beginning of a shift but is unable to commence work because weather conditions are unsuitable, he shall receive two (2) hours' pay at the appropriate straight-time rate plus shift differential if on shift or the appropriate premium rate if on overtime, plus travel allowance where applicable. The employee shall remain at his place of work for two (2) hours unless he is permitted to leave by his Employer."

4. The argument of the applicant trade union in the present matter is that Article 18 of the Master Portion of the collective agreement applies to this situation. The proposed application of that article is that for the first four hours of the day, that is the first part of the Sunday shift, the applicable rate of double time was paid. However, once work in the second four hours of the shift commenced, then pursuant to that article, the employees were entitled to an additional four hours notwithstanding the fact that only one hour was worked, and further that the rate for those four hours should also be at double time.

5. The applicant relies heavily on an interpretation of Article 18 given by another panel of this Board in a previous decision which discussed that very article in the Master Agreement between the Allied Council and EPSCA. In that decision the Board stated:

"The more reasonable construction would appear to be that the article was to provide a guaranteed minimum of 4 hours' pay per half of the shift if the employee was requested to work for any part of the shift."

And indeed in that case the employees who worked for an hour and a half in the second part of the shift and then sent home were entitled to four hours pay. In the present case, the applicant argues that the phrase "applicable rate" in 18.01 is the overtime rate of double time and the clause should be applied in total to work on a Sunday.

6. The respondent argues that Article 18 does not apply to overtime work on a Sunday. He points out that the last sentence of Article 18 refers to normal daily hours and that given Article 28 of the Master Agreement there are no normal daily hours on a Sunday. Thus, the clause only applies to normal working hours as set out in Article 28 which refers to work performed on Mondays through Fridays.

7. In support of this interpretation counsel for the respondent cites arbitral authority for the proposition that articles such as Article 18 are designed to compensate employees for the inconvenience of reporting for work and then being informed by the employer that no work is available, but such provisions are not interpreted as, in effect, punitive provisions. See for instance, Re Page-Hersey Tubes, Limited (1952) 1 L.A.C. 929 (Finkelman). In the circumstances of the present case, the employees having been paid at an overtime rate were paid a total of ten hours pay for the five hours which they actually worked.

8. We are of the view that Articles 17, 18 and 28 of the Master Portion of the agreement when read together do not support the applicant's interpretation in the present case. The reporting pay set out in section 18(1) deals with regularly scheduled daily work, and is limited to those circumstances. In the extraordinary situation of work on a Saturday or Sunday where overtime rates apply, the clause is not applicable because there are no normal daily hours on such days. To find otherwise would be to render Article 17 meaningless, and would fly in the face of the clear language of Article 28 in the Master Portion of the agreement, and Article 4 of the appendix relating to the carpenters.

9. For the foregoing reasons this grievance is therefore dismissed.

DECISION OF BOARD MEMBER B. L. ARMSTRONG;

1. The Agreed Statement of Facts as set out in paragraph 2 subparagraph 4 of the majority decision leads me to find in favour of the applicant for the grieving employees who were paid the applicable rate for actual time worked from 8:00 a.m. to 1:00 p.m. on the day in question — five hours.

2. Article 18 of the Collective Agreement covering reporting pay states:

"An employee who reports for work, unless directed not to report the previous day by his Employer, shall receive a minimum of four (4) hours' pay at the applicable rate when he reports for work but is given no opportunity to work because none is available. This allowance will be paid to an employee if he is requested to report for work for any part of the first half of the shift and an additional four (4) hours will also be paid if he is requested to report for work for any part of the second half of the same shift, together with travel allowance if applicable. It is not intended by this Article that an employee receive a reporting pay allowance greater than his pay for normal daily hours.

Counsel for the respondent failed to admit Article 17, Call-In Pay, apply, the failure of such admission would leave me to apply Article 18.

3. The Reporting Pay Clause should apply under these circumstances, overtime was pre-arranged to be performed outside of regular hours. The employees worked for the first half of the shift and one hour into the second half of the shift and the employer should pay the employees for the four hours at the applicable rate for the second half of the shift as set out in Article 18, 1 would so rule.