Ontario Labour Relations Board

[1992] OLRB Rep. January 61

2554-91-G International Union of Elevator Constructors, Local 50, Applicant v. Otis Elevator Co., Respondent

BEFORE: Janice Johnston, Vice-Chair, and Board Members W. N. Fraser and H. Kobryn.

APPEARANCES: E. del Junco and Tom McCana for the applicant; Ross Dunsmore, Ed Wyzykowski and David McColl for the respondent.

DECISION OF THE BOARD; January 17, 1992

1. The applicant, the International Union of Elevator Constructors Local 50 (the “union” or "Local 50") has referred a grievance concerning the interpretation, application, administration or alleged violation of a collective agreement to the Board for final and binding determination pursuant to section 126 [formerly section 124] of the Labour Relations Act (the "Act").

2. Local 50 and the respondent, Otis Elevator Co. (the "company" or "Otis") are bound to the provincial collective agreement between the National Elevator and Escalator Association (the "association") and the International Union of Elevator Constructors. The respondent does not dispute that it is a member of the association, and its name appears in the membership list set out in Appendix "C" to the collective agreement.

3. The grievance alleges that Otis is in violation of Article 12.05.01 of the collective agreement in that it failed to pay travelling time to certain employees. The facts in this case are quite straight forward and were essentially agreed upon by the parties.

4. Otis made arrangements for nine employees to attend a training course in October,

5. The relevant part of that Notice reads as follows:

FROM: David MeColl,

Field Operations Manager - Service

SUBJECT: Elevonic 411 Training

October 8, 9, 10, 1991

You have been selected to attend the Elevonic 411 Training Program at the Training Centre on The Queensway on October 8, 9 and 10, 1991.

You should report to The Queensway Training Centre at 7:30 a.m. all three days.

Following coffee and donuts the programme will commence at 8:00 a.m. sharp and run until 5:00p.m.

"David McColl"

DMcC:bas

The nine employees who attended the course are Gary Heck, Steve Prior, Peter Beauvais, Mike Johnson, Bill Robertson, Norm Blady, Peter Doric, Pat Joyce and an employee whose last name is Baxter. All of these employees are members of Local 50 and are employed by Otis as mechanics engaged in maintenance work. These particular employees do not perform construction or modernization work, nor do they perform general repairs.

5. The attendance of the employees at the course was compulsory and they were paid their regular wages and benefits. This course was part of regular upgrading courses that Otis expects its mechanics to attend approximately once per year.

6. Otis recently opened a new training centre, located at 1655 The Queensway. The course in question, was the first one held by Otis in the new training centre. Prior to this it had conducted the training courses in various hotels. 1655 The Queensway is outside the Metro boundaries but within a forty mile radius from City Hall, Toronto. All of the nine employees who attended the course work out of Otis's downtown office and are regularly assigned to work within Metro's boundaries. Mechanics do not normally report to their office but go directly to the job (Or jobs) they have been assigned to on any given day.

7. As noted, the grievors in this case received their regular wages and benefits for the days spent in attendance at the course. They did not however, receive travel time as they feel they are entitled to under Article 12.05.01 of the collective agreement. Article 12.05.01 of the collective agreement reads as follows:

12.05.01 Local 50 - Toronto

(a) It is agreed that all employees covered under this Agreement who are working on Construction, Modernization or Scheduled Repair Work in the area bounded in the north by Eglinton Avenue, in the east by Bayview Avenue and Bayview Extension and a straight line from the Bayview Extension to the north shore of Lake Ontario, in the west by Bathurst Street, and in the south by the north shore of Lake Ontario shall be reimbursed in the amount of four dollars ($4) per day per employee.

(b) It is further agreed that all employees covered under this Agreement who are working on Construction, Modernization or Scheduled Repair work in the area in the north bounded by Wilson Avenue and York Mills Road to Victoria Park Avenue, south on Victoria Park Avenue to Ellesmere Road, then east on Ellesmere Road to the present Metro Limits, in the west from Royal York Road to the present Metro limits, in the east from Birchmount Road to the present Metro limits, shall be reimbursed a travel allowance of thirty (30) minutes each way. The southern limit will be the north shore of Lake Ontario.

(c) It is further agreed that the allowances referred to in (a) and (b) above are not applicable to work performed by any classification of employee not specifically mentioned in (a) and (b) nor shall they be applied to areas other than those specified in (a) and (b).

(d) In the area between the present Metro boundaries and the limit of a forty (40) mile radius from the City Hall, Toronto, each employee assigned to work in the area shall be reimbursed forty-five (45) minutes, each way, per day worked, as a total expense remuneration.

(e) In the area between the forty (40) mile radius from the City Hall, Toronto, as described in (d) above, and a radius of one hundred and fifty (150) miles from the City Hall, Toronto, each employee assigned to work in the area shall be reimbursed sixty dollars ($60.00) per day worked, effective on date of signing. Effective May 1, 1989, this will increase to $70.00.

(f) In any area beyond the one hundred and fifty (150) mile radius as described in (e) above, each employee assigned to work in the area shall be reimbursed four hundred and twenty dollars ($420.00) per week for each full week assigned. Effective May 1, 1989 this will increase to four hundred and ninety dollars ($490.00) per week for each full week assigned. In the event that the employee spends less than a full week during any period of assignment in the area described in this paragraph, he shall be reimbursed for such period of less than one week's duration at the diem rate as specified in (e) above.

(g) It is understood that, should the amounts specified in paragraphs (e) and (f) be deemed insufficient to provide reasonable compensation for food, shelter, and incidental expenses for the employee concerned, the amounts may be adjusted by agreement between the Employer and the Union. The Employer may require that legitimate receipts be furnished by the employee to substantiate such request for increased compensation. It is further agreed that where the actual expenses fall below the amounts now agreed on, the amount may be adjusted by agreement between the Employer and the Union.

8. Other relevant portions of the collective agreement read as follows:

RECOGNITION CLAUSE

2.02 The Union recognizes that it is the responsibility of the Employers, in the interest of the purchaser, the Employers and their employees, to maintain the highest degree of operating efficiency and to continue technical development to obtain better quality, reliability, and cost of its product, provided, however, that this provision is not indented to affect the work jurisdiction specified in Article 4 and Article 4(A), and the work jurisdiction as specified in other Articles of this Agreement.

2.03 Without limiting the generality of the foregoing, and subject to the other provisions of the Agreement, the Employers shall have the right to:

(a) Select personnel, hire, assign work or duties, transfer, layoff and recall employees;

(b) discipline or discharge for just cause;

(c) establish and enforce reasonable rules of conduct to be observed by employees.

MAINTENANCE

9.01 Maintenance work (Contract Service) is hereby defined as any contract obtained by an Employer for regular examination or care of apparatus enumerated in Article 4 and Article 4(A) of this Agreement, for a period of not less than one (1) month. Maintenance work shall be exclusively performed by Elevator Constructor Mechanics and Elevator Constructor Helpers.

9.03 It is agreed the regular working day shall consist of eight (8) hours between 8:00 a.m. and 5:00 p.m. five (5) days per week, Monday to Friday, inclusive. It is agreed that in order for call-backs to be answered in downtown business areas or similar business areas, an Employer may assign a Mechanic or Mechanics to remain at a mutually agreed building beyond regularly established working hours not to extend beyond 6:30 p.m. For all such work beyond his regularly established working hours, the Mechanic or Mechanics shall be paid at the rate of time and one-half. Should such assigned Mechanic or Mechanics be authorized to continue work on a job when a call-back extends beyond 6:30 p.m. he or they shall receive travel time and travel expense home. Where a holiday occurs, Monday through Friday, inclusive, the work performed on Saturday during the week in which any such holiday occurs shall be a time and one-half the single time rate.

9.08.02 The Employer shall have the option of paying standby under one of the following three (3) methods if a standby list is necessary:

a) -Mechanics assigned a duty period covering Monday to Friday shall be entitled to two (2) hours pay per duty day at Mechanics rate of pay.

• Mechanics assigned a duty period covering Saturday, Sunday or a Holiday established under Article 6 of the Agreement shall be entitled to two (2) hours' pay per duty day at Mechanic's rate of pay.

• The paid standby hours applicable to a duty day shall be reduced by the hours spent responding to calls on that day, under option (a);

OR

b) - Mechanics assigned a duty period covering Monday to Friday shall be entitled to one (1) hours pay per duty day at Mechanics rate of pay.

• Mechanics assigned a duty period covering Saturday, Sunday or a Holiday established under Article 6 of the Agreement, shall be entitled to two (2) hours pay per duty day at Mechanics rate of pay.

• The paid standby hours applicable to a duty day shall not be reduced by the hours spent responding to calls on that day, under option (b):

OR

c) - Mechanics assigned a duty period of seven (7) days will receive standby at the rate of 112-1/2% of the Mechanics rate for all hours worked whether straight time or the overtime rate for that period of time that he is on standby.

9.08.05 Travel time from home to job and from job to home on an overtime call-back (starting after regular working hours and terminating before start of regular working hours) shall be paid for at the same overtime rate applying to the work. Travel expenses on an overtime call back shall be paid as agreed in Article 12.

12.01 It is agreed that when an Elevator Constructor Mechanic or a Helper is sent outside of the jurisdictional radius covered in this Agreement, travelling time will be paid at single time rate for the actual hours travelled during regular working hours. Additional travelling time up to five (5) hours will be paid, at single time rates, for the actual hours travelled beyond regular working hours the first day only. If the trip requires more than one (1) day, travelling time will be paid at single time rates for the actual hours travelled during regular working hours the second, third, or fourth day and any additional days necessary to complete a trip. Expenses incurred during the trip shall be paid for by the Employers.

12.02 Under 12.01, overtime travelling is defined as follows:­

"Additional travelling time up to five (5) hours will be paid at single time rates for the actual hours travelled beyond regular working hours the first day only."

This ruling applies generally only to planned work on out-of-town assignments where the Mechanic has prior notice of a trip.

12.04.01 Transportation

The method of transportation from job to job during regular hours, overtime hours or travelling time authorized by the Employer, shall be that for which the Employer will accept responsibility and give monetary recognition. It is agreed that, when employees agree to use their personal vehicles for transportation as outline in this provision, they shall be reimbursed at the rate of thirty-two (32) cents per kilometer effective on signing. Effective May 1, 1989 they shall be reimbursed at the rate of thirty-four (34) cents per kilometre.

The Employer shall also assume the cost of the difference between the employee's own standard insurance and necessary business insurance.

It is understood that there will be no geographical restrictions on the use of personal or company vehicles. Employees will not be required to carry material other than their own personal tools in their personal vehicles.

9. Counsel for the union argued that in attending the course put on by Otis the grievors were under the employers direction and control and that in upgrading themselves they were rendering a service which should be compensated. In fact, the grievors were paid their regular wages and benefits but not travel time. Counsel pointed out that Article 12.05.01(a) and (b) dealt with employees regularly engaged in construction, modernization or scheduled repair work, not the type of work the grievors normally engaged in. Counsel pointed out that the maintenance mechanics do not get the expense allowance provide in 12.05.01(a) and (b). Counsel argued however, that the maintenance mechanics were covered by 12.05.01(d) when they worked outside the Metro boundaries. It was his position that the grievors were therefore entitled to a travel expense equal to 1.5 hours per day. The payment in 12.05.01(d) is not tied to actual travel time but is an expense payment based on a formula. In attending the training course counsel argued that they had been "assigned to work" outside the Metro area and were therefore entitled to the expense remuneration provided in Article 12.05.01(d). Counsel referred the Board to Beckett Elevator Company Limited, [1978] OLRB Rep. June 485; Rosmar Drywall & Acoustic Limited, [19901 OLRB Rep. Feb. 214; Re Steinberg Inc. 1985 CanLII 5399 (ON LA), 20 L.A.C. (3d) 289 and Dominion Stores Ltd. 1978 CanLII 3484 (NB LA), 20 L.A.C. (2d) 118.

10. Counsel for the employer took the position that in attending the training course, the grievors were not performing "work" as it is defined in the collective agreement. He pointed to the use of the words "assign work or duties" in Article 2.03(a) of the collective agreement and argued that "work" and "duties" should be given distinct meanings in the collective agreement. Counsel argued that attending a training course was a duty. The other duty outlined in the collective agreement pursuant to Article 9.08.02, is stand by duty. Counsel contended that performing stand by duty or attending a training course was not work within the meaning of Article 12.05.01(d). He referred the Board to numerous articles in the collective agreement (which we do not propose to reproduce) defining work jurisdiction, repair work, construction work, maintenance work etc., in support of his contention that attending a training course was not work as defined by the collective agreement. Counsel for the employer also argued that Article 12.05.01 set up travel zones and travel times and that these were a product of the construction industry. In his submission the language did not entitle mechanics engaged in maintenance work to travel expense remuneration.

11. Counsel for the employer took the position that Article 4.09 was relevant to our determination. Article 4.09 states:

4.09 The industry, including its employees and customers, will be served by full utilization of the latest methods, techniques, technologies, tools and equipment available including communications equipment. Therefore, no restrictions shall be imposed on their use.

Counsel contended that in the circumstances of this case, if the union were to receive travel pay for attending training courses, this would cause additional cost to the employer and would constitute a restriction within the meaning of Article 4.09. He argued that imposing this additional cost would adversely effect the employers ability to conduct training. Counsel referred the Board to Beckett Elevator Company Limited unreported June 22, 1979. At the hearing of this matter counsel made reference to two other cases which he undertook to provide to the Board. As of the issuance of this decision we have not received them.

12. The issue to be decided therefore, is whether in attending the training course which was held just outside the Metro boundaries, as required by the employer, the grievors were entitled to the travel expense remuneration provided by Article 12.05.01(d). The parties agreed that as the past practice of the parties concerning the application of this article was contradictory, it would not be referred to. Nor was the Board provided with any bargaining history concerning this article. The purpose and scope of Article 12.05.01(d) must therefore be ascertained from the language used.

13. The employer in this case seeks to distinguish between assigning duties to an employee and assigning work to an employee. Counsel acknowledges that the grievors were assigned the duty of training and were therefore paid. He argues however, that they were not "working" so as to bring them within Article 12.05.01(d). Counsel did not provide the Board with any authority for this proposition nor was any evidence called in support of it. The Board can find no basis for supporting this distinction and cannot accept counsel's reasoning. In requiring that the maintenance mechanics perform the duty of attending a training course, and compensating them for so doing, the company was requiring them to work.

14. Counsel for the employer argued that Article 12.05.01 dealt only with the construction industry. On a plain reading of that clause, we cannot agree. Articles 12.05.01(a) and (b) specifically cover employees "working on construction, modernization or scheduled repair work". Article 12.05.01(c) reiterates and reinforces this. There is no such restriction to the type of work or type of employee covered by Article 12.05.01(d). The wording simply refers to "each employee" and does not stipulate the area that they must be working in. Had 12.05.01(d) been confined in its application to employees "working on construction, modernization or scheduled repair work" it would have been possible to accept the employer's interpretation. The wording is very clear and it cannot therefore be given the meaning suggested by counsel for the employer.

15. Counsel for the employer argues that if the employer had to pay travel expenses this would constitute a "restriction" within the meaning of Article 4.09. In this case the employer chose the location for its training course and required employees to attend. It had sole control over where the courses were to be conducted. Travel expense remuneration is provided for in the collective agreement and is only applicable in certain circumstances. The employer agreed to this clause and by its actions in this case has brought itself within it. The employer cannot now accuse the union of violating Article 4.09 by seeking to enforce its rights and, in circumstances covered by Article 12.05.01(d), obtain the travel expense remuneration to which its members are entitled.

16. We find therefore on the facts of this case that the employees who attended the training course were performing work on behalf of the employer. On the basis of the language in Article 12.05.01(d), as the site chosen for the course was just outside the Metro boundary, the employees are entitled to travel expense remuneration within the meaning of Article 12.05.01(d).

17. The Board remains seized of this matter in the event that the parties are unable to agree with respect to the implementation of this award.