[1985] OLRB Rep. September 1363

3483-84-M Ontario Sheet Metal Workers Conference Sheet Metal Workers' International Association, Local 269, Applicants, v. E. S. Fox Ltd., Ontario Sheet Metal and Airhandling Group, Respondents

BEFORE: R. O. MacDowell, Vice-Chairman, and Board Members I. M. Stamp and H. Kobryn.

APPEARANCES: B. Fishbein, L. Lavallee and G. Ward for the applicants; W J. McNaughton, C. Turner, Keith Billings and L. Ciaufarani for the respondents.

DECISION OF THE BOARD; September 6, 1985

I

1These are two grievances referred to the Board pursuant to section 124 of the Labour Relations Act. The first grievance concerns the interpretation of the "travel allowance" provision appearing as Article 17 in the "Kingston Appendix" to the provincial collective agreement. Article 17 spells out how employee travel allowances are to be calculated by unionized employers operating in the Kingston-Belleville area. However, the travel allowance formula found in Article 17 (Kingston) is broadly similar to that found in other appendices applicable in other parts of Ontario. Accordingly, the Board's interpretation of Article 17 may have an impact not only on the respondent E. S. Fox Ltd. ("Fox") and other sheet metal contractors operating from time to time in the Kingston-Belleville area, but also on employers operating in other parts of the province. That is why the provincial employer bargaining agency appeared and took carriage of the proceedings on behalf of both Fox and all other unionized employers potentially affected by the Board's interpretation of Article 17. Counsel for Fox indicated that his client was content with that arrangement and, while present at the hearing, did not take an active role.

2The second grievance is much more specific. It concerns the employment rights of a sheet metal worker named Fred Vanlingen, who has worked for Fox in the past, but, for some time, was disabled and receiving compensation under the Workers' Compensation Act. He seeks to return to work on particular terms which Fox resists. The dispute is solely between Fox and one of its former employees. There are no obvious provincial or area ramifications, and counsel for the employer bargaining agency indicated that it had no interest and would take no part in this second grievance.

3It will be seen that the two grievances are quite unrelated. The first is essentially an interpretation question. There are no facts in dispute, but the result may affect employers other than Fox. In contrast, the second grievance involves only Fox, a single former employee, an entirely different issue, and some dispute as to the facts. Counsel suggested that the Board should deal first with the broader interpretation question, returning to the second grievance if time permitted. That is the procedure which the Board adopted and, as it turned out, because of the parties' settlement discussions, the second case was not reached and a further hearing may be necessary.

4The Board's decision on the "travel allowance" grievance is set out below. The Board notes the agreement of the parties that Fox is bound by the provincial collective agreement, and further that, should the Board find that there has been a breach of that agreement, the Board should remain seized in case the parties are unable to work out between themselves the amount of compensation payable to any aggrieved union members.

II

5Although the facts are not in issue, it may be useful to set out the contract language which is at the heart of the present controversy. The relevant portions of the agreement are as follows:

CLAUSE 17 - TRAVEL AND BOARD

17.1 Free zone boundaries shall be a ten mile radius from City Hall in Kingston, Belleville and Brockville.

17.2 Employees based in the Cities of Kingston, Belleville and Brockville, shall provide their own transportation to the shop or job, within the free zone boundaries of their base city and/or base shop. (The preceding shall exclude an on site shop). After the employee goes outside his base city free zone, he shall receive an extra remuneration for Mileage Allowance as shown above to the maximum set out as Board Allowance. The mileage to be calculated starting from City Hall of his base City.

[emphasis added]

Union members are dispatched from the hiring hall and engaged by employers pursuant to Article 21 of the master portion of the agreement and Article 7.1 of the Kingston appendix:

ARTICLE 21 - HIRING PROCEDURE

21.1 The Union hereby agrees to furnish at all times to the employer, duly qualified members and registered apprentices as the work requires, in such numbers as the employer shall determine to be necessary to properly execute the work he has contracted for, in the manner and under the conditions specified in this Agreement.

CLAUSE 7 - HIRING PROCEDURE

7.1 The employer shall have the right to engage former employees in the past one year, if available, but otherwise he will accept journeymen or apprentices sent by the local union business manager.

6Fox is a construction contractor engaged in projects (as the market dictates) throughout the Province of Ontario. Its head office is in Welland. It has a sub-office and shop in Kingston. It has no permanent establishment in or around Belleville. Neither does the union. The union's offices and hiring hall are in Kingston.

7At the time of the grievance, Fox was working on a job for Proctor and Gamble in Belleville, Ontario. The job required sheet metal workers. Fox already had in its employ two union members who were Kingston residents and were just completing work on a Fox job in Kingston. They were reassigned to work on the Proctor and Gamble job in Belleville. There was no break in their employment. They have been paid travel allowance from Kingston to the Proctor and Gamble job in Belleville in accordance with the company's interpretation of Article 17.

8However, the Proctor and Gamble project required a number of sheet metal workers, and the company therefore turned to the union as it was required to do under the terms of the collective agreement. In response, the union supplied qualified members as it is required to do (see Article 21. 1 above). First the union referred all available unemployed members residing in Belleville. None of those members would be entitled to travel allowance because the Proctor and Gamble job is within the ten mile "free zone" stipulated in Article 17.1. But the list of unemployed Belleville residents was soon exhausted, and in order to meet the company's needs, the union had to draw upon unemployed members from other places. Most of these members came from Kingston. It is their entitlement to travel allowance which is currently in dispute. The company's position is that, except for the two Kingston residents already in its employ and transferred to Belleville, none of the Kingston residents dispatched from the hiring hall are entitled to mileage allowance for the distance to and from the Kingston area and the Proctor and Gamble project in Belleville. We might note, however, that, while for ease of exposition, we have and will continue to refer to workers claiming travel allowance as "Kingston residents" (where it is agreed most of them come from), there may be some who ordinarily reside in other places whose travel allowance claim might be resolved on a somewhat different basis. The parties were content to put their case on the basis of competing general interpretations. They did not put before us the details of individual employee claims.

9The respondents' argument (here put by the employer bargaining agency) can be simply stated. In the respondents' submission, an employee's "base city" is not the place where he ordinarily resides but rather the point at which he is hired and becomes an employee. The respondents' point out that Article 17.2 of the Kingston appendix refers to "employees", not "members'~, and maintains that the two are quite different. The respondents refer to Articles 2.6 and 2.8 of the master portion of the agreement (the definition section) which read as follows:

2.6 “employee" means a certified journeyman sheet metal worker or registered apprentice, as well as sheeter/decker, welder, sheeter's assistant, material handler and probationary employee engaged in the sheeting and decking segment of the sheet metal industry; recognized by the local union and employed in the shop or on the job site except as otherwise specifically provided in this Collective Agreement.

2.8 'member" means a certified journeyman sheet metal worker; sheeter/decker, welder, sheeter's assistant and material handler in the sheeting and decking segment of the sheet metal industry, recognized by the local union and employed or eligible to be employed by an employer in the shop or on the job site.

10The respondents argue that except for the two workers already employed by Fox in Kingston, the aggrieved individuals remained merely "members" until they are actually hired, and that hiring took place when they reported for work in Belleville. It is only at that point, the respondents contend, that the "members" became "employees" and, simultaneously, their "base city" became Belleville. Since the Proctor and Gamble job is within ten miles of the Belleville City Hall, no mileage allowance was payable in respect of any travel expenses actually incurred by workers travelling between the job site and their homes in Kingston.

11It follows, of course, that it is just fortuitous that the company happened to have in its employ two Kingston residents whom it chose to transfer to the job site in Belleville. Had the company chosen to formally terminate their employment in Kingston, they might well have been dispatched through the union hiring hall anyway but, in the respondents' view, would not have been entitled to travel allowance. Conversely, if a manpower shortage on a Kingston job caused an employer to hire a Belleville resident who worked for a time in Kingston, but who was later transferred, without a formal break in employment, to another job in Belleville, he would be entitled to travel allowance even though Belleville was his ordinary place of residence. In the respondents' submission, the employees' place of residence or need to travel to work are both irrelevant. The respondents told the Board that the interpretation they urged upon us is one which significantly reduces employees' entitlement to travel allowance and thus an employer's cost. Counsel notes that if the term "base city" is linked to a worker's residence, then an employer's potential labour costs become quite unpredictable and dependent upon whether the project's manpower requirements can be met solely from unemployed local residents. If they cannot, and if the term "base city" is linked to an employee's ordinary place of residence, then the employer faces the costly prospect of subsidizing the travel costs of out-of-town workers. The respondents' maintain that they are entitled to minimize their wage costs.

12We are unable to accept these submissions which, in our view, are inconsistent with a purposive reading of Article 17 of the collective agreement.

III

13We may begin by observing that, in the construction industry, work opportunities and employment relationships are necessarily transitory. Contractors move from town to town in accordance with their success in bidding on available jobs. Workers move from place to place and employer to employer as they are dispatched from the union hiring hall in response to employer requests. Typically, there will be no established work place as there is for an employee working in an industrial plant, and workers are required to travel in order to take advantage of available work opportunities. That is why many construction collective agreements include "room and board" or "mileage" allowances to compensate these workers for the costs they would otherwise incur in living away from home or getting to and from Work. Given the general purpose of such clauses (including Article 17) it would be curious if, as the respondents submit, entitlement to "room and board" or "travel allowances" was entirely unrelated to whether an employee had to live away from home or travel.

14We do not doubt that, for some purposes, there may be a significant difference between the rights of a "union member" and the rights of an "employee" (although this agreement sometimes seems to use those terms almost interchangeably)~ but given the unique context of the construction industry and the institution of the hiring hall, the distinction between an unemployed union member and a prospective employee on the out-of-work list, and a union member dispatched and hired pursuant to the hiring hall's job referral rules, may not be as analytically significant as the respondents' submit. For example, in Article 11.1 of the master portion of the agreement "union members" are entitled to certain time off with pay to perform official duties provided the employer is notified in advance. It is implicit that the term "union member" here means a "union member" who is also an "employee". We might also note the decision of the Supreme Court of Canada in International Longshoremen's Association, Local 273 et al. v. Maritime Employers' Association et al., 78 CLLC 14,171, where the Court had before it what was alleged to be an unlawful "strike". That term was defined in the Canada Labour Code as a concerted refusal by employees. There, as here, there was a hiring hall provision requiring the union to supply members who, as it turned out, refused to cross a picket line to report for work. The union argued that the subject workers although dispatched, had not reported for work, and therefore, were not, strictly speaking, “employees”. Thus, they could not be engaged in a “strike” as that term was defined. The Supreme Court of Canada commented:

Thus, in a technical sense, the relationship or employer-employee as it is recognized in the common-law, may not arise until the member of the local has reported to the requisitioning member of the association for the work in the port of St. John. Beyond that technical basis, the argument has no merit... For the purposes of collective bargaining and labour relationships under the resulting Collective Agreements, members of the association and members of the Locals were respectively employers and employees from the onset of the agreements, whatever their rights and obligations may or may not include under the common law of master and servant... The employees as the term is used in the Collective Agreements herein, are of course the members of the Local on whose behalf the Local has undertaken to supply labour to the employer organization and its component members. It cannot be said that the Agreements were designed to operate and in fact operated after the members of the Locat's reported to work.

Accordingly, in the collective bargaining context before it, the Court was unwilling to draw a rigid or technical distinction between the rights and obligations of "members" as opposed to "employees". When union members refused to report for work they were employees engaging in a strike contrary to the terms of the relevant collective agreement even though, technically, the union members had not become "employees" in a common-law sense.

15In the instant case, we do not think it is necessary to explore the arguable distinction between the terms "member" and "employee". Nor need we decide whether the employment relationship was established in Belleville when the employees reported for work, or in Kingston because that was the point of dispatch and the employer's office, or whether it would have been established in Kingston had the Kingston residents reported to the Fox office in Kingston and tendered the required documentation. In the Board's view, such artificiality is inconsistent with both the language and clear intent of the collective agreement.

16Article 17 of that agreement provides for the calculation of a mileage allowance for employees travelling from ''their base city'' to a shop or job site outside the ''free zone~~ boundary of "their base city" which, in turn, encompasses a ten mile radius from the city hall. In our view, the words "base" or "base city", used in reference to individual employees for the purpose of calculating mileage allowance, envisage some degree of permanence in a context in which the job site itself will constantly be changing. The words "his base city", "their base city", "starting from City Hall of his base city" all suggest that the point of reference is something subjective to the circumstances of the particular employee; and, of course, this is entirely consistent with the notion that employees should, in general, be paid an amount depending upon the miles actually travelled. That, after all, is the purpose of the clause in the first place: it subsidizes workers who must live away from home or travel to the job site.

17In our opinion, the employee's home base city is the constant - the point of reference from which one calculates mileage allowance to a job site which may well change from time to time. Employees required to go outside their base city receive mileage allowance depending on how far they travel. The base city is the bench mark. We do not accept the respondent's submission that the employees' base city is established by the location of the job site where they report for work, so that entitlement to travel allowance or board allowance has little or no relationship to the distance which an employee must actually travel to get to the job site or whether he actually incurs the expense of living away from home. On the respondents' interpretation, the employees' base city may be Kingston today, Belleville tomorrow, and Brockville next week. Moreover, employees actually resident in Kingston and Brockville but travelling different distances to a job site in Belleville would have the same base city and would be entitled to the same mileage allowance: nothing. If they had to live away from the city in which they ordinarily reside, and therefore incurred expenses for room and board, they still would not be eligible because where they report for work would be their (shifting) base city. Indeed, as noted, entitlement to the subsidy would have nothing to do with whether they incurred the expenses for which the subsidy was obviously intended; and, by the simple expedient of requiring employees to present their papers at the job site and formally terminating employment after each job, on the respondents' interpretation travel pay could be avoided entirely.

18We do not think that the respondents' proposed interpretation is consistent with the language, purpose, or intention of Article 17 of the collective agreement. No doubt the respondents' would prefer a situation in which they could totally avoid subsidizing the employees' travel costs, but we do not think that the interpretation urged upon us is the most reasonable one in all the circumstances. We need not decide in this case how particular employees should be designated as "based" in Kingston, Belleville or Brockville (or whether workers not clearly so based have any claim to travel pay at all), since the parties indicated that most of the employee claimants came from Kingston and there was no indication that there would be any problem deciding whether they were properly classified as having a "Kingston" base.

19For the foregoing reasons, the Board is satisfied that the union's grievance must succeed and that the employee claimants ordinarily resident in the Kingston or Brockville are entitled to mileage allowance calculated starting from the respective city halls of their base cities.

20In accordance with the agreement of the parties, we shall remain seized in the event the parties are unable to agree upon the amounts (if any) payable to particular employees.

21The second reference, the "Vanlingen grievance", should be relisted for hearing (if necessary) before another panel of the Board.