[1991] OLRB Rep. July 812
0590-91-G International Union of Operating Engineers, Local 793, Applicant v. Bot Construction (Canada) Limited, Respondent
BEFORE: Susan Tacon, Vice-Chair, and Board Members D. A. MacDonald and C. A. Ballentine.
APPEARANCES: Bernard Fishbein, Lana Kerzner and Graham Steers for the applicant; David C. Daniels and Steve R. Bot for the respondent.
DECISION OF THE BOARD; July 8, 1991
This is a referral of a grievance to arbitration pursuant to section 124 of the Labour Relations Act.
The parties reached the following agreement on facts.
The distance between the McFarland yard and the job site is more than 65 but less than 100 kilometers.
The travel allowance referred to in Article 18.1(a) of the McFarland Collective Agreement has not been paid.
The applicable collective agreements for this grievance are the Clarkson/Bot Agreement and the McFarland Agreement as the project is in map area 2 referred to in the ClarksonlBot Agreement.
The job in question is the construction a new interchange at Sir John A. MacDonald Boulevard and the 401.
The "yard" at the job site has no permanent buildings, just four trailers. One trailer houses the office and is staffed by full-time clerk and a project manager, Mr. Goody. Another is the mechanical trailer used for storage of parts; two portable welding machines are outside this trailer. Two other trailers are used to store various parts from vehicles and other machines. There are no garage facilities at this location. Repairs are done in the open air. Equipment is also parked in the open air. The site is surrounded by a snow fence. Building materials are stored within the snow fence but in the open air and, finally, there are various surface fuel tanks for the vehicles.
The McFarland yard consists of a large office building, a low bay garage (with four to five bay's) and a high bay garage with an overhead crane. There are permanent welding facilities at this location and a permanent asphalt pit. There are quonset huts and places to park equipment.
The respondent has a "permanent yard" in Oakville which replicates the McFarland yard except with respect to the asphalt pit.
The applicant is a provincial local with a charter for the Province of Ontario and has approximately thirteen offices throughout the Province. Some of the offices are in fact "sub-offices" of others. Each office operates a hiring hall from which workers are dispatched. The local office in map area 2 is in Belleville. Its jurisdiction is bounded by Gananoque and Highway 32 in the east to Port Hope in the west and to Bancroft in the north but including the City of Peterborough. Mr. Steers has been the business agent in the Belleville Office since 1978; that office operates a hiring hall. Mr. Steers and his predecessors have been involved in negotiating local area collective agreements and, with reference to these proceedings, were involved in negotiating the McFarland and Maguns Agreements. Mr. Steers has not been involved in negotiating other local area collective agreements for other map areas in the Province as shown on schedule "C" of the Clarkson/Bot Agreement.
On the date the grievance was filed, the respondent employed six workers in the bargaining unit pursuant to the collective agreement. Those six worked for the respondent an average of ten months per year in the Kingston area for the last three years. Further, the respondent employs another twenty employees who have worked for twelve months per year for at least the last three years on projects throughout Ontario. On the job site in question, the six men and any additional men employed on this site were hired through the hiring hall but on a "name hire" basis by the Project Manager. That manager, Mr. Goody, asked the union for specific individuals and, if they were available (and they were), those persons would be (and were) hired by the respondent and cleared by the union. All were also resident in map area 2 for purposes of these proceedings.
Documentary material was also filed in evidence on agreement.
Based on the above facts, the parties made their submissions which the Board does not regard as necessary to recite herein.
In reaching its decision, the Board has considered the agreed facts, including the documentary material and the parties' submissions. The Board considers it appropriate to give its decision with brief reasons.
Article 1.5 of the Clarkson/Bot Collective Agreement reads:
1.5 In those areas of the province which are outlined and numbered on the attached map as marked on Schedule "C" where there exists an agreement between and Association of Sewer and Road Contractors and the Union or a dominating agreement between a local Sewer or Road Contractor, the Employer agrees to abide by the wage rates, vacation, statutory holiday pay, hours of work, overtime, shift premium, benefit plan contributions, training fund contributions, working dues deductions, regular monthly dues deductions, travel allowance, reporting allowance, hiring hall and subcontracting provisions of said agreement.
[emphasis added]
Schedule "B" of that collective agreement also states:
In those areas of the Province which are outlined and numbered on the attached map marked Schedule "C", where there are established Agreements between Contractors and the Union covering MTC work, structures and other forms of construction, the Employer agrees to abide by the wage rates and conditions of said Agreement.
[emphasis added]
The Agreements referred to in Article 1.5 are as listed below:
Map Area #2
For Roadbuilding work - the McFarland Agreement
For Sewer & Watermain work - the Magnus Agreement.
Schedule "C" indicates that the relevant project is in Map Area 2 and, thus, the Clarkson/Bot Collective Agreement binds the respondent to the "wage rates and conditions" of the McFarland Agreement.
- This grievance asserts that the respondent has contravened the travel allowance provisions in the McFarland Agreement, specifically, Article 18.1(a) which reads:
18.1 (a) Employees working beyond 65 KM and up to a 100 KM radius from the Employers yard shall be paid twenty dollars ($20.00) per day expense allowance.
Briefly put, the parties joined issues with respect to the interpretation of the reference to "employer's yard" in Article 18.1(a). The applicant asserts that reference can only mean the "McFarland yard" while the respondent contends that the reference point for calculating eligibility for travel allowance within that Article is the "Bot yard" on the actual job site.
The Board prefers the interpretation asserted by the applicant. The Clarkson/Bot Collective Agreement may be colloquially referred to as a "pick-up" agreement. That is, the respondent agrees to "pick-up" the terms and conditions for the matters noted in Article 1.5 of the relevant local agreement listed in Schedule "B". This type of collective agreement is not unusual in the construction industry where some contractors work throughout the province. The requirement in the Clarkson/Bot Collective Agreement in Schedule "B" that the employer "abide by the wage rates and conditions of said agreement" places the "outside" contractor on an equal footing within each local area. In the Board's view, the meaning of the words just-quoted are clear: the respondent agrees to pay whatever wages and benefits are required of McFarland pursuant to the McFarland Agreement. With respect to the travel allowance and Article 18.1(a), this interpretation would require the respondent to pay its employees the expense allowance referred to therein where, as here, the employees work beyond 65 kilometers but less than a 100 kilometers from the McFarland yard. There is no doubt that, in the McFarland Agreement, the "employer's yard" referred to is the McFarland yard. The requirement to "pick-up" the McFarland Collective Agreement is not consistent with the respondent's interpretation, namely, substituting the respondent's temporary yard on the job site from the McFarland yard. To do so would introduce an element of uncertainty in calculating the travel allowance given that the respondent could designate a "yard" wherever there was a job site within Map Area 2 and, indeed, permit the respondent to arrange matters so as to unilaterally nullify the travel allowance provision entirely. Moreover, such an interpretation would undercut the equalization of the competitive position of the respondent vis a vis the local contractor, a result contrary to the intent of a pick-up collective agreement. The Board does not regard the letter of understanding attached to the McFarland Collective Agreement as applicable to the instant grievance given the facts agreed to and the Board's analysis of the interpretation of the Clarkson/Bot Collective Agreement, especially Article 1.5 and Schedule "B", and Article 18.1(a) of the McFarland Agreement.
For the reasons given, the Board upholds the grievance and finds that the respondent violated its obligation to pay the travel allowance in Article 18.1(a) of the McFarland Collective Agreement. As requested, the Board remains seized should the parties be unable to agree with respect to the quantification of damages and should any question arise with respect to the interpretation or application of this decision.