International Brotherhood of Electrical Workers v. Electrical Power Systems Construction Association (EPSCA), 1985 CanLII 878

[1985] OLRB Rep. January 92

2953-83-M The International Brotherhood of Electrical Workers, Electrical Power Systems Construction Council of Ontario, on its own behalf and on behalf of the International Brotherhood of Electrical Workers Local Union 1788, 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 W. H. Wightman.

APPEARANCES: A. J. Ahee and W Gilroy for the applicant; Paul Jarvis and John Tomlinson for the respondents.

DECISION OF R. A. FURNESS, VICE-CHAIRMAN, AND BOARD MEMBER W. H.

WIGHTMAN; January 30, 1985

1. 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.

2. The applicant has alleged that the respondents have wrongfully withheld the daily travel allowance as set out in Article 1100 of the collective agreement from Mr. Warren Bray for part of the pay period ending February 15, 1984. Initially, the applicant took the position that the respondents had wrongfully withheld 0.1 hours of wages from Mr. Bray for the pay period ending February 15, 1984. However, at the hearing before the Board, the applicant withdrew its claim in this regard. At the hearing, the applicant requested a declaration that the respondents were in violation of the terms and conditions of the collective agreement, an order that the respondents adhere to the terms and conditions of the said collective agreement, and an order that the respondents compensate Mr. Bray for the allowances as set out in Article 1100 as a result of the respondents' violation of the collective agreement with interest thereon. At the hearing the respondents denied that they had violated the collective agreement.

3. This grievance arises with respect to work performed at the construction project at the Bruce Nuclear Generating Station "B". The following facts were agreed upon by the parties:

I Mr. Bray was scheduled to work on February 8, 1984, between the hours of 8:00 a.m. and 4:30 p.m.

II An employees' assembly point is the location designated by a foreman or general foreman as the location where the employee is to be at the beginning and the end of his shift.

III Mr. Bray had left his assembly point prior to 4:30 p.m. on February 8, 1984, en route to his home but had not yet passed through the security gate.

IV Mr. Bray did not receive permission from any authorized representative of Ontario Hydro to leave his assembly point prior to 4:30 p.m. on February 8, 1984, nor did he request it.

V Mr. Bray received a letter dated February 9, 1984, which contained notice of a wage deduction of 0.1 hours (6 minutes).

VI Mr. Bray was not paid his daily travel allowance of $11.00 for February 8, 1984.

The letter reads as follows:

Dear Mr. Bray, You were not at your assembly point at quitting time on February 8, 1984.

You have been deducted .1 hour for that date as notified by your supervisor.

You must remain at your assembly point as designated by your foreman until normal quitting time.

Any further incidents of this nature could result in your suspension for two (2) working days without pay.

"Gord Little"

Elect. Gen. Foreman

Bruce G. S. "B"

4. The applicant and the respondents are parties to a collective agreement in effect from May 1, 1982, to April 30, 1984. The collective agreement is stated as being between the Electrical Powers Systems Construction Association (EPSCA) and The IBEW Electrical Power Systems Construction Council of Ontario representing various affiliated local unions. Subsections 1100 and 1101 provide in part:

1100 A. The daily travel allowance will be paid by the Employers to their employees who are not receiving room and board allowance as referred to in Subsection 1101, on the following basis:

(iii) If an employee lives within 40 to 56 radius kilometers of the project, he shall receive $11.00 per day travel allowance for each day worked or reported for.

1101 A. …

(ii)(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 ($33.00 effective May 1, 1983) per day for each day worked or reported for.

1101 B. An employee shall not qualify for daily travel allowance or room and board allowance as provided for in Subsection 1100 and Subsection 1101, Item A above, when such employee reports for work but does not remain at work for his scheduled daily hours unless excused by an authorized representative of his Employer. Such permission shall not be unreasonably denied.

5. It was agreed by the parties that the respondents' requirement that employees gather at a designated assembly point at the commencement and at the end of the shift was both reasonable and desirable in terms of the relationship between the parties. For example, it was agreed that on a large project, such as Bruce Nuclear Generating Station "B", this is a method of ascertaining whether an employee is injured and also for ensuring that employees remain on a project for the duration of the shift. Mr. Bray was not at his designated assembly point at quitting time, and in addition to having 0.1 hour's pay (6 minutes) deducted from his pay for the day in question, was also not paid his travel allowance in the amount of eleven dollars. The applicant argued that the deduction of six minutes' pay was sufficient penalty for the admitted failure of Mr. Bray to be where he was assigned to be during the working hours of the shift in question. The applicant viewed the refusal of the respondents to pay the travel allowance as unreasonable and excessive. The applicant pointed out that depending upon where the employee lived, he might either receive no travel allowance or receive as much as thirty-three dollars a day in a subsistence allowance provided for under the collective agreement. The fact that the consequences of not being present at the designated assembly point could lead to such a variety of penalties was viewed by the applicant as being discriminatory. The applicant argued that if at the end of the day Mr. Bray was to be penalized for not being at his designated assembly point, then the doctrine of substantial performance ought to be triggered and that the individual should lose a percentage of rather than the entire amount due to him under subsection 1100 of the collective agreement. The applicant adopted the position that the Board ought to apply practicality in the work place rather than the letter of the law.

6. The respondents argued that the disentitlement to travel allowance was a contractual consequence expressly provided for in the collective agreement. The respondents further argued that the entitlement was not created by merely reporting for work. In the view of the respon­dents, it was necessary for Mr. Bray to report for work and remain at work before becoming entitled to the travel allowance. In these circumstances, it was the position of the respondents that subsection 1l0lB applied to Mr. Bray because he had been caught by the requirement to remain at work for the scheduled hours. The respondents viewed the requirement to be at the designated assembly point as the last assignment of the day. The respondents argued that Mr. Bray's failure to be at the designated assembly point attracted discipline for insubordination in the form of not being entitled to or qualified for the travel allowance. The respondents stressed that the failure to perform the last assignment of the day resulted in Mr. Bray not performing his scheduled daily hours for February 8, 1984.

7. Mr. Bray left the assembly point en route to his home prior to 4:30 p.m., even though he was physically on the property of Ontario Hydro. The designated assembly point is the place where management has instructed its employees to report. The requirement to be at the designated assembly point is a requirement of management and is the last assignment of the day. Ontario Hydro is entitled to expect that the assignment will be obeyed. Where an employee does not obey such an assignment, such conduct normally attracts discipline because it is insubordination. The wording in subsection 1100 is to be contrasted with the wording in subsection 804A, which states:

An employee who reports for work at the beginning of a shift and is unable to commence work due to inclement weather will receive three (3) hours' pay at the applicable rate. To qualify, the employee must remain at a protected place or area as designated by the Employer for three (3) hours unless excused by an authorized representative of his Employer.

In subsection 804A an employee who reports for work and is unable to commence work due to the inclement weather receives three hours' pay at the applicable rate. Subsection 1101 provides that an employee does not qualify for daily travel allowance or room and board allowance as provided for when he reports for work but does not remain at work for his scheduled daily hours unless excused by an authorized representative of his employer. A comparison of these two sections indicates that the parties have addressed the issue of reporting for work on the one hand, which gives rise to certain entitlements in the case of inclement weather, and the act of remaining at work for the whole scheduled daily hours. Similarly, in section 4, work is there used in the context to mean only performing duties to further the completion of the project. It means doing an assignment in furtherance of the project.

8. The Board notes that there is no longer a dispute with regard to the deduction of the 0.1 hours from the pay of Mr. Bray. On the other hand, the dispute remains with respect to the travel allowance. The travel allowance is awarded pursuant to a contractual obligation in the collective agreement. It is not a penalty clause. It is a contractual obligation and is paid to employees who qualify. In our view, the eleven dollars which was not paid to Mr. Bray is in the nature of an entitlement pursuant to a contractual consequence expressly provided for in the collective agreement. The denial of the eleven dollars is not a penalty provision which was taken away from Mr. Bray. The entitlement to the travel allowance is not created under the collective agreement by reporting for work. It is not enough to report for work. The individual is required to report and remain there. Section 1100A(iii) provides eleven dollars per day travel allowance for each day worked or reported for. The normal work day expires at 4:30 p.m. and Mr. Bray was not at work pursuant to a designated order of the management of Ontario Hydro on February 9, 1984. Mr. ray is caught by the requirement to remain at work for the scheduled hours provided for in the collective agreement.

9. In Re Patons & Baldwins (Canada) Ltd. and Amalgamated Clothing & Textile Workers Union, Local 836 (1980), 1980 CanLII 4053 (ON LA), 25 L.A.C. (2d) 332, at pages 335 and 336, the board of arbitration stated:

It is well-settled law that the basic rule is that performance of a contractual obligation must be exact subject to the qualification known as de minimus rule, that is that minute and unimportant deviations from exact compliance will be ignored. However, under certain circumstances, it has been held that the rigour of the law of an exact performance is in some cases mitigated by the doctrine of substantial performance, whereby a party who has performed his obligation except for matters of a minor character will be allowed to enforce the obligation of the other party. This doctrine which clearly has no application in collective agreements has, however, been applied by analogy by several arbitrators and, in particular, was relied upon in the four cases already specifically mentioned.

Whatever merit there may be in importing the doctrine of substantial performance to contractual obligations which are not entire but rather divisible, it is also reasonably well settled that it is a question of construction in each case whether the parties intended that this doctrine should apply or that there should be complete and exact performance: see 9 Hals., 4th ed., p. 334, para. 475.

In the instant case it seems to us reasonably clear that the parties intended that there should be complete and exact performance of the qualifications which constitute conditions precedent to the right of an employee to be paid the statutory holiday.

In the instant case, the parties have carefully provided in clear wording the requirements which are required in order for an employee to be paid his travel allowance. In Re Goodyear Tire & Rubber Co. of Canada, Ltd. and United Rubber Workers, Local 232(1977), 1977 CanLII 2930 (ON LA), 15 L.A.C. (2d) 15, the board of arbitration noted that when the purpose of the qualifying condition is thwarted or circumvented by deliberate deceptive action on the part of a grievor, it cannot be said that there has been substantial compliance with the terms of a collective agreement. In that case the board concluded that the words “at work" were capable of an interpretation which required full attendance at the shift or only reporting for work. The board determined that the grievor had taken deceptive and evasive action and that the employer had acted in accordance with the terms of the collective agreement in denying payment to a grievor for a statutory holiday. In the unreported decision of The Electrical Power Systems Construction Association and The Ontario Allied Construction Trades Council (decision dated September 7, 1978), the majority of a board of arbitration found that an employee was entitled to a subsistence allowance "for each day worked or reported for". The board noted that the hours of work for these employees on Friday was stated as one shift of eight hours. The employees did not work their whole shift, but rather worked four hours of that shift and left. In those circumstances, the board held that it could not hold that by working part of the shift it was equivalent to a day worked and that a day must be considered as a full day or a full shift on that day from 7:30 a.m. to 4:00 p.m. The facts indicated that the employees did not have permission to leave and, therefore, since they had not completed their shift they could not qualify under the terms of the article in the collective agreement.

10. In the instant case, parties have provided for the conditions under which an employee is entitled to a travel allowance. The payment of eleven dollars per day is earned by an employee who satisfies the terms of the collective agreement. It is a payment which is earned and when earned is paid. We do not accept the argument of the applicant that the travel allowance by being denied, constitutes a penalty and a penalty which is discriminatorily applied depending upon the entitlement of the employee concerned to subsistence allowance or to travel allowance or to neither of these because of his place of residence. The refusal by Ontario Hydro to pay the travel allowance is not a penalty. It represents a failure by Mr. Bray to earn his entitlement to the travel allowance and is therefore not discriminatory conduct depending upon the individual employee who was involved.

11. The act of Ontario Hydro in denying the travel allowance to Mr. Bray arose from his failure to fulfill the necessary conditions with respect to a contractual obligation between the parties. Ontario Hydro has not violated the collective agreement and this grievance is dismissed.

DECISION OF BOARD MEMBER C.A. BALLENTINE;

1. I dissent from the decision of the majority in this case.

2. I am of the view that Hydro violated the collective agreement. Section 1100A (iii) of the agreement provides that an employee living within a 40-56 kilometre radius of the project shall receive a $11.00 per diem travel allowance "for each day worked or reported for." The only relevant modification of this section is found in section 1101B. That section provides that an employee shall not qualify for the travel allowance "when such employee reports for work but does not remain at work for his scheduled daily hours unless excused by an authorized representative of his Employer". In other words, entitlement to the travel allowance is lost only where the employee, without permission, fails to remain at work for his scheduled work day. In my opinion, it has not been established that Mr. Bray failed to remain at work for the scheduled work day. Mr. Bray was present at the Ontario Hydro project for his scheduled daily hours. All that has been established is that he was not present at his assembly point at quitting time on the day in question. He was still physically present on Hydro property, and there is no allegation that he did not complete his day's work. Thus, in concluding that Mr. Bray did "not remain at work for his scheduled daily hours", the majority is reading an added requirement into section 1101B, i.e., that the employee must be physically present at the place designated by management at the appropriate time.

3. Even assuming that Mr. Bray has not technically satisfied the section 1101 B travel allowance requirement, it is my opinion that exact compliance with the section should not be demanded in the circumstances of this case. As the board of arbitration said in Re Patons & Baldwins Ltd. (cited by the majority, supra):

It is well-settled law that the basic rule is that performance of a contractual obligation must be exact subject to the qualification known as de minim us rule, that is that minute and unimportant deviations from exact compliance will be ignored.

Mr. Bray was not present at the proper station for a mere 6 minutes of an 8-hour work day. If this is not a case for invoking the de minimus rule, then I am hard pressed to imagine one.

4. I do not agree that the cases cited by the majority are of any relevance. In both cases cited, the employees completed only 4 hours of scheduled 8-hour shifts, and thus lost entitlement to contractual benefits. The facts in this case are clearly different. It is at least arguable that Mr. Bray has completed his work day. At worst, he is 6 minutes short of entitlement to the travel allowance. In no way can his failure to remain at the checkpoint be said to be deceptive and evasive action, as the board of arbitration characterized the grievor's conduct in Re Goodyear Tire.

5. I cannot leave this case without a parting comment. In my view, Hydro has adhered to its strict contractual rights to the detriment of all parties involved. Both union and management have incurred great expense over what is essentially an $11.00 grievance, and the Board's resources have been abused in the process. I am not unmindful of Hydro's desire to ensure strict employee compliance with its directives, nevertheless, I remain unconvinced that it was necessary for Hydro to act as it did. Mr. Bray received an official warning and had 6 minutes' pay deducted for his action, which, in my view, is sufficient. I am deeply disturbed by the additional penalty imposed; benefits earned under the collective agreement should not be withheld based on a technical reading of that agreement, in order to penalize an employee. The use of the collective agreement for such improper purposes does nothing to foster harmonious labour relations, and ought not be sanctioned by the Board.

6. The grievance should succeed, and Hydro should pay Mr. Bray $11.00 with interest from February 8.