[1991] OLRB Rep. April 562
2668-90-G Labourers' International Union of North America, Ontario Provincial District Council, Applicant v. Ontario Precast Concrete Manufacturers Association, Respondent
BEFORE: Nimal V. Dissanayake, Vice-Chair, and Board Members G. 0. Shamanski and H. Kobryn.
APPEARANCES: A. M. Minsky, T. Connoly and L. Curto for the applicant; Bruce Binning and Bill O'Riordan for the respondent.
DECISION OF THE BOARD; April 22, 1991
- This is a referral of a grievance to arbitration under section 124 of the Labour Relations Act. The case was argued solely on the basis of the following agreed statement of fact, which was filed with the Board:
O.L.R.B. File No. 2668-90-G
BEFORE THE ONTARIO LABOUR RELATIONS BOARD
Between:
LABOURERS' INTERNATIONAL UNION OF NORTH AMERICA, ONTARIO PROVINCIAL DISTRICT COUNCIL
Applicant,
- and -
ONTARIO PRECAST CONCRETE MANUFACTURERS' ASSOCIATION
Respondent.
AGREED STATEMENT OF FACT
- The parties have agreed to submit to arbitration the proper interpretation and application of Article 21.05 of the Provincial Agreement between the Ontario Precast Concrete Manufacturers' Association and Labourers' International Union of North America and the Labourers' International Union of North America, Ontario Provincial District council effective from May 1, 1990 until April 30, 1992 (the "Provincial Agreement"), which provides:
"Employees required to stay overnight shall receive a meal allowance of thirty dollars ($30.00) per day for each day they are away and shall be provided with clean, adequate lodging. Effective May 1, 1991 this amount shall be increased to thirty-five dollars ($35.00)".
The conduct by the employers bound by the Provincial Agreement which has been challenged by the Applicant in this grievance involves the non-payment of meal allowance by the said employers to their respective employees for each day which they are working away from their home area and have been or will be, as the case may be, required to stay overnight. By way of examples, in the event an employee is working away all day Monday and is thus required to stay overnight on Monday and then works all day Tuesday and reports back to his home area on Tuesday night, he is paid one meal allowance of thirty dollars ($30.00). By the same token, an employee who is required to work away all week from Monday to Friday and is thus required to stay overnight on each of Monday, Tuesday, Wednesday and Thursday nights and reports back to his home area on Friday night, is paid meal allowances for four of the days when he is required to work away. The Applicant's position is that an employee should be paid such meal allowance for each and every day he is away working and using the examples given, should be paid meal allowances on each of Monday and Tuesday when he works away on those two days and be paid meal allowances for each of the five days from Monday through Friday when he is away in the second example.
The parties have agreed that no reference will be made to past practice or to bargaining history.
The parties request that the Board remain seized of damages in this matter.
DATED at Toronto this 7th day of March, 1991.
"T. Connoly" "I. W. O'Riordan"
Labourers' International Ontario Precast Concrete
Union of North America, Manufacturers' Association
Ontario Provincial J. W. O'Riordan
District Council President Tom Connoly
The parties used the two examples listed at paragraph 2 of the agreed statement of fact to illustrate their submissions. There really is no material difference between the two examples. Therefore in addressing the submissions of counsel, the Board will limit itself to the example where the employee is required to work away, 7:30 a.m. to 4:30 p.m. on Monday, is required to stay overnight on Monday and then works 7:30 a. m. to 4:30 p.m. on Tuesday and returns home on Tuesday after work.
The parties obviously have different views on the employee's entitlement to a meal allowance under Article 21.05, which is set out at paragraph 1 of the agreed statement of fact. Counsel for the applicant submits that the triggering mechanism for the application of Article 21.05 is that the employee must be "required to stay overnight". Since this condition was satisfied in the example when the employee was required to stay overnight on Monday night, counsel argues that Article 21.05 entitled him to receive a meal allowance of thirty dollars per day "for each day he is away". Since he performed two shifts away from home base, he was "away" two days and was entitled to a meal allowance for each of Monday and Tuesday.
Counsel for the respondent contends that the entitlement to the meal allowance under Article 25.01 is qualified by the phrase "required to stay overnight". It is the respondent's position that, to be entitled to a meal allowance the employee must establish not only that he was required to stay overnight, but that as a result, he was not able to have his meals in the usual manner. Applying that interpretation to the circumstances of the employee in our example, counsel submits that since the employee was not required to stay overnight on Sunday night, on Monday he could have had his breakfast at home in the normal manner before leaving for work. He could also have taken a prepared lunch with him as usual. Therefore, there was no entitlement for breakfast or lunch on Monday. Counsel agrees that the employee was entitled to be paid a $30.00 meal allowance to compensate for his dinner on Monday night, and his breakfast and lunch on Tuesday. According to counsel, since the employee was not required to stay overnight on Tuesday, after his shift ended at 4:30 p.m. on Tuesday, he was expected to get back home for dinner. It is the contention of counsel that the "day" in the phrase "thirty dollars per day for each day" in Article 25.01 in this employee's case runs from 4:30 p.m. (his shift end) on Monday to 4:30 p.m. on Tuesday.
Both counsel urge upon us "a purposive" approach to contract interpretation. Both agree that, since there is no evidence as to past practice or bargaining history, the purpose and intent of Article 25.01 must be ascertained from the language used. Counsel for the applicant contends that once the precondition of a requirement to stay overnight is satisfied, the Article envisages payment of a meal allowance of $30.00 per day for each day the employee is away. Counsel submits that this is a typical per diem payment, the intent being to pay a fixed amount per each day the employee works away regardless of where he had the meals, how much he spent, how many meals he had and even regardless of whether he had any meals at all. Counsel argues that if the respondent's position is to prevail, the Board must read the phrase "for each day they are away", as if it read "for each night they are away". Counsel submits that the phrase "day" must be interpreted to mean "calendar day" or "work day". He contends that there is nothing in the language of the Article which will justify an interpretation of "day" as meaning "night" or a 24-hour period from 4:30 p.m. to 4:30 p.m.
Counsel for the respondent submits that the intent of the Article is to reimburse the employee for meals which he could not provide for himself in the normal way because he was away. On Monday, the employee could have had his breakfast at home as he normally does when he is working at a site at his home base. Similarly, there was nothing to prevent him from taking his lunch with him as he normally would. Normally he would go home at the end of his shift at 4:30 p.m. and have dinner at home. He could have done the same on Tuesday even though he was working at a work site away from home. Counsel submits that to accept the Union's interpretation is to provide a windfall for the employee in our example, as far as breakfast and lunch on Monday and dinner on Tuesday are concerned. Counsel contends that the parties could not have intended such a result. Counsel relied on two U.S. cases Re BASF Wyandotte Corp., (1982) 78 L.A. 885 and Re Celotex Corp., (1974) 62 L.A. 485 and urged the Board to find that Article 25.01 only envisaged reimbursement for meals which an employee could not have in the normal manner because he was working away.
Having carefully reviewed the language used by the parties and the submissions of counsel, the Board agrees with the applicant's, interpretation of Article 25.01. The theory presented by the respondent is predicated upon a series of factual assumptions, such as where an employee has his breakfast, how he provides himself his lunch, etc. While these assumptions may be true with respect to some employees, with regard to others it may not be so. How employees feed themselves can vary drastically from employee to employee. For that matter, it is quite conceivable that some employees do not have some meals at all, for example, breakfast or lunch. There is nothing in the language of Article 25.01 which enables the Board to infer a pattern of how an employee "usually" has his meals. Nor is there any evidence on that issue.
Besides, the language in Article 25.01 totally ignores the issues of the number of meals per day or how or where or even whether any particular meal is taken by an employee. If the Article provided for reimbursement for particular meals or a specified number of meals, such as so much for breakfast, so much for lunch and so much for dinner, the respondent's argument would have had merit. However, the parties in their wisdom have elected to ignore all these variables by stipulating a flat rate per diem. Thus, even if we had evidence as to where and how many meals a particular employee usually had, that can have no bearing on the entitlement to a per diem meal allowance. That is the distinguishing feature of this case as compared to the two cases relied on by the respondent. In both BASF Wyandotte, (supra), and Celotex, (supra), the collective agreement provisions envisaged either a particular free meal or an allowance in lieu of a particular meal. It was a payment per meal as opposed to a payment per day as is the case here. Therefore, the arbitrator drew an inference that the parties intended the entitlement to arise only where the employee was prevented from having that particular meal in the normal manner.
On the basis of the language in Article 25.01, we have concluded that where an employee is required to stay overnight, he is entitled to a per diem meal allowance of $30.00 for each day he is away, regardless of his normal eating pattern. The "day" is the work day, which means he must be working a shift or part of a shift away from home base. In the example, since he qualified by being required to stay overnight on Monday, he is entitled to a meal allowance for each day he was away, namely Monday and Tuesday. In the second example, since that employee was away five days, Monday to Friday inclusive, he would be entitled to a meal allowance for each of the five days.
Having interpreted the disputed provision, as agreed upon by the parties, the Board remains seized in the event the parties cannot agree upon the issue of damages.