[1984 OLRB Rep. July 992
0155-84-M The United Association of Journeymen and Apprentices of the Plumbing and Pipe Fitting Industry of the United States and Canada, Local Union 463, Applicant, v. The Electrical Power Systems Construction Association (EPSCA) and Ontario Hydro, Respondents
BEFORE: R. A. Furness, Vice-Chairman, and Board Members C. A. Ballentine and J. D. Bell.
APPEARANCES: John Grant, Alex Ahee and Brian Christie for the applicant,~ Paul Jarvis and Ivor Starasts for the respondents.
DECISION OF THE BOARD; July 12, 1984
The applicant has referred a grievance concerning the interpretation, application, administration or alleged violation of a collective agreement to the Board for final and binding determination.
The applicant has grieved that Harry E. Olsen, the grievor, has not been paid a subsistence allowance for room and board by Ontario Hydro contrary to the terms of a collective agreement.
In September of 1983, the grievor was employed by Ontario Hydro at its Darlington plant as a pipewelder. At that time Mr. Olsen resided with his wife and two of his four children at his residence at 1156 Valley Court in Oshawa, Ontario. Towards the end of September or during October of 1983, Mr. Olsen moved his wife and two children to Malagash, Nova Scotia. He rented a house in Malagash and his two children were placed in a school. It was the grievor's intention to move to Nova Scotia and obtain employment on oil rigs off the coast of Nova Scotia. Mr. Olsen sold his furniture and had his personal effects moved to Malagash. He remained in his house in Oshawa. After his personal effects had been moved to Malagash he retained only a bed, a stove and a refrigerator in his house in Oshawa. He lived in his house in Oshawa and made monthly payments on a mortgage on the house in Oshawa and also with respect to heat and electricity. He listed his residence in Oshawa for sale between October, 1983 and January, 1984. He was unable to sell his house in Oshawa. During the period between Christmas of 1983 and January, 1984, it became clear to Mr. Olsen that he was not going to be able to secure employment in Nova Scotia. His wife and two children returned from Malagash to Oshawa on March 24, 1984.
On December 16, 1983, the grievor executed an application for daily travel/room and board allowance. In the application he stated that the address of his regular residence was "R.R. 1, Malagash, Nova Scotia" and further stated that he commuted daily from "1156 Valley Court, Oshawa, Ontario". He claimed $196.00 and provided a letter from a landlord and a telephone bill. In Mr. Olsen's testimony, there was no reference to his having spent any time in Malagash between September of 1983 and March of 1984. Mr. Olsen has resided at 1156 Valley Court, Oshawa since 1973 and when he commenced employment for Ontario Hydro he indicated that 1156 Valley Court, Oshawa, was his residence.
The applicant bases the grievor's entitlement to a subsistence allowance under article 28.2 of the collective agreement on the allegation that his regular residence is more than 97 radius kilometers from the project.
There is no dispute that the parties are bound by a collective agreement between The Electrical Power Systems Construction Association and The United Association of Journeymen and Apprentices of the Plumbing and Pipe Fitting Industry of the United States and Canada, effective from May 1, 1982, until April 30, 1984. Article 28.2 of the collective agreement states:
28.2 ROOM AND BOARD
The following conditions will apply for employees whose regular residence* is more than 97 radius kilometers from the Project.
(a) An Employer may supply either:
(i) free room and board in a camp or a good standard of board and lodging within a reasonable distance of a Project; or
(ii) a subsistence allowance.
(b) An employee may exercise his option not to stay in a camp or accept free room and board. An employee who exercises this option shall receive a subsistence allowance as follows:
(i) The Province will be divided into two regions for the payment of subsistence allowance: a Northern region and a Southern region. The Northern region is comprised of the geographic area established for the Atikokan Project. The Southern region is comprised of all remaining geographic areas except that described for the Northern region.
(a) When an employee's regular residence is more than 97 radius kilometers from the Atikokan Project in the Northern region, the employees shall be paid a subsistence allowance of $34.00 per day for each day worked or reported for.
(b) When an employee's regular residence is more than 97 radius kilometers from the Project in the Southern region, the employee shall be paid a subsistence allowance of $29.00 per day for each day worked or reported for.
- An employee's "regular residence" is the place where he maintains a permanent self-contained domestic establishment (a dwelling house, apartment or similar place of residence where a person generally sleeps and eats) in which he resides, and for which he can show proof of financial commitment.
This grievance primarily involves an interpretation of 'an employee's "regular residence"' in article 28.2. In that article three ingredients are induced in the concept of 'employee's "regular residence"':
A permanent self-contained domestic establishment in which an employee resides.
A place where a person generally sleeps and eats.
A place for which he can show proof of financial commitment.
Mr. Olsen's residence at 1156 Valley Court in Oshawa clearly satisfies these three ingredients. He resided at that address in Oshawa where he slept and ate and for which he could show financial commitment in the form of monthly payments with respect to a mortgage, heating and electricity. On the other hand, there was no evidence that Mr. Olsen ever resided at or slept and ate at R.R. 1, Malagash, Nova Scotia. It may well be that his wife and two children had established a regular residence for themselves in Nova Scotia between September/ October of 1983 and March of 1984. However, in our opinion, Mr. Olsen's regular residence and only residence was at 1156 Valley Court, Oshawa, for the period of time in question.
Mr. Olsen was engaged in preparing for alternative employment. It was his choice to seek such employment and to make suitable concurrent domestic arrangements. Ontario Hydro ought not to be required to finance its employees for alternative employment.
The Board finds that the grievor, Harry E. Olsen, had his regular residence at 1156 Valley Court, Oshawa, Ontario, and not at R.R. I, Malagash, Nova Scotia. In these circumstances, he is not entitled to a subsistence allowance under the provisions of article 28.2 of the collective agreement. This grievance is dismissed.