Ontario Labour Relations Board

[1994] OLRB Rep. April 462

3593-93-G; 3594-93-G International Union of Elevator Constructors, Local 50, Applicant v. Otis Canada Inc., Responding Party; International Union of Eleva­tor Constructors, Local 50, Applicant v. Montgomery KONE Elevator Co., Responding Party

BEFORE:Pamela Chapman, Vice-Chair, and Board Members G. O. Shamanski and J. Redshaw.

APPEARANCES:Eric Del Junco for the applicant; R. Ross Dunsmore, A. Reistetter, E. Wyzykow­ski and Patrick Clifford for Otis Canada Inc.; and R. Stinson, for Montgomery KONE Elevator Co.

DECISION OF THE BOARD; April 12, 1994

1. The applicant has referred two grievances concerning the interpretation, application, administration or alleged violation of a collective agreement to the Board for final and binding determination.

2. The applicant and the responding parties Otis Canada Inc. ("Otis") and Montgomery KONE Elevator Co. ("Montgomery KONE") are bound by a provincial collective agreement between the National Elevator and Escalator Association and the International Union of Elevator Constructors ("IUEC"), effective July 20, 1992 to April 30, 1995.

3. Pursuant to the terms of that collective agreement, a grievance was filed by the TUEC Local 50 against Otis on January 17, 1994, on behalf of three employees, William Bryce, Mike White and Peter McIntyre. The grievance alleges that Otis refused to pay the sum of $70.00 per day to these three employees as per Article 12.05.01(d) of the provincial agreement.

4. A second grievance was filed by IUEC Local 50 against Montgomery KONE on Janu­ary 20, 1994, on behalf of two employees, Don Gorelle and Darrell Cherry, alleging that the employer failed to pay $70.00 per day to these employees pursuant to Article 12.05.01(d). At the request of the applicant, the referrals to arbitration of these two grievances were combined and heard together.

5. Both parties directed their arguments to the language of the entire article, so Article 12.05 of the provincial agreement is reproduced below:

12.05 TRAVEL ZONES AND TIMES WITHIN THE PRIMARY AND SECONDARY

JURISDICTIONS

12.05.01 LOCAL 50-TORONTO

(a) It is agreed that all employees covered under this agreement who are working on construc­tion or modernization or scheduled repair work in the area bounded in the north by Highway 401, in the east by Port Union Road, and in the west by Highway 427 and in straight line to the North Shore of Lake Ontario shall be reimbursed in the amount of thirteen dollars (13), per day employee, effective July 20, 1992. Effective May 1, 1993 the employee shall be reimbursed four­teen dollars (14) per day and effective May 1, 1994 the employee shall be reimbursed in the amount of fifteen dollars (15) per day.

(b) It is further agreed that all employees covered under this agreement who are working on construction, modernization or scheduled repair in the area between the present boundaries (highway 401, Port Union Road and Highway 427) and the limit of a forty (40) mile radius from the City Hall, Toronto, shall be reimbursed thirty (30) minutes each way, per day as a total expense renumeratlon.

(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 forty (40) mile radius from the City Hall, Toronto, as described in (b) 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 seventy dollars ($70.00) per day worked, effective on date of signing.

(e) In any area beyond the one hundred and fifty (150) mile radius as described in (d) above, each employee assigned to work in the area shall be reimbursed 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 shalt be reimbursed for such period of less than one week's duration at the per diem rate as specified in (d) above.

(f) It is understood that, should the amounts specified in paragraphs (d) and (e) 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.

12.05.02 Local 90 - Hamilton

(a) Anything over one city bus fare within the primary jurisdiction must be paid by the Employer at the rate of one dollar ($1.00) per day per man.

(b) Travel zones and travelling times within the secondary jurisdiction with the City Hall as the central point, shall be as follows:

From the primary to 7-3/4 miles

• 1/4 hour each way

from 7-3/4 miles to 10 miles

• 1/2 hour each way

from 10 miles to 15 miles

• 3/4 hour each way

from 15 miles to 25 miles

• 1 hour each way

It is understood that the employees will start work at the job site in the respective zones at eight (8:00) am. and shall work eight hours per day on their job site.

It is agreed that Local 90 of the City of Hamilton has jurisdiction over the men now resident in the Cities of Windsor, London and Sarnia, and all men who might be permanently stationed in these cities during the life of this Agreement, and the men resident in these cities shall have local preference whenever possible on any work covered by this Agreement.

(c) Living Expenses

When men are sent outside of the secondary jurisdiction, expenses shall be paid at the rate of up to seventy ($70.00) per man per day for all days worked to cover room, board, laundry and inci­dental expenses within a zone of sixty-five (65) miles from the City Hall.

Beyond this zone, such expenses will be paid at the rate of up to four hundred and ninety dollars ($490.00) per man per week.

In the event men work less than a five-day week, the expenses rate shall be up to seventy dollars ($70.00) per day.

All zones referred to in the secondary jurisdiction covering travel times and expenses shall be designated on an approved map.

If at any time it is found that the living allowance provided by this Agreement is not adequate to cover reasonable expenses, the Company agrees to increase same proportionately after the increase has been approved by the superintendents in charge, along with the representatives of the Union. It is also understood that, where expenses fall below the allowance agreed on, the Company reserves the right to pay only the costs involved.

12.05.03 Local 96 - Ottawa

(a) Travel zones and per diem allowances shall be as follows:

From the primary to 8 miles - 15 minutes each way from 8 to It miles - 30 minutes each way from 11 to 15 miles -45 minutes each way from 15 to 25 miles - 60 minutes each way

(b) It is understood that the per diem expenses detailed in paragraph (a) above are applicable only to employees engaged in Construction, Modernization and Scheduled Repair Work, and that employees shall perform eight hours work per day on the job site.

(c) It is agreed that Local 96 of the City of Ottawa has jurisdiction over the men resident in the City of Kingston. Also, all men who might be permanently stationed in this City during the life of this Agreement, and that members of Local 96 of Ottawa shall have prior right to all work covered by this Agreement whenever possible.

(d) It is agreed that when employees are sent to camp site jobs they shall be accommodated in foremen's quarters where possible. Out-of-pocket expenses for employees sent to such job sites will be discussed between the Employer's Superintendent and a representative of the Local at least one (1) week prior to the employee's departure to the job site.

(e) When employees are sent outside of the primary jurisdiction where living expenses apply, such expenses shall be paid at the rate of up to a maximum of seventy dollars ($70.00) per man, per day worked to cover room, board, laundry and incidental expenses in an area within a sixty-five (65) mile radius of the Chateau Laurier Hotel.

Beyond this area such expenses shall be paid to a maximum of four hundred and ninety dollars ($490.00) per week.

If at any time it is found that the living allowances provided by this Agreement are not adequate to cover reasonable expenses, the Employers agree to increase same proportionately after such increase has been approved by the Employer's Superintendent concerned, along with a repre­sentative of the Local. It is further agreed that when actual expenses fall below the amounts agreed upon, the Employers reserve the right to pay only the costs involved.

6. The parties were able to agree to certain of the facts relating to the grievances, so no oral evidence was called at the hearing. The following facts concerning the circumstances giving rise to the grievances were stipulated to:

(a) during the six to eight month period before the grievances were filed, each of the five grievors submitted at least one claim for a $70.00 allowance pursuant to Article 12.05.01(d);

(b) on at least one of these occasions, the employer denied a claim for the $70.00 allow­ance made by each of the five employees;

(c) on the occasions on which the denials occurred, the employees were all working within the geographic area defined in Article 12.05.01(d) as between 40 and 150 miles from City Hall, Toronto ("the zone");

(d) on the occasions on which the denials occurred, the Otis employees were engaged in maintenance work and the Montgomery KONE employees were performing repair work;

(e) the denials all occurred in one of two different circumstances:

(i) on a single-day trip, where an employee travelled into the zone, worked the day and then returned back to Toronto on the same day; or,

(ii) on the last day of a multi-day trip, where the assignment involved two or more days of work in the zone. On these occasions the employers paid the $70.00 per day allowance for all days except for the last day of the trip, at the end of which the employee returned to Toronto;

(f) on both single-day trips and on the last day of multi-day trips the employees incurred expenses for meals;

(g) neither employer ever approached the union to enter into an agreement to reduce the amount payable in these circumstances pursuant to the provisions of Article 12.05.01(f), and no such agreement was ever made.

7. While we were asked to rule on the application of the language in the provincial agree­ment to these general facts, we were also provided with specific examples of recent refusals of claims made by the employees named on the grievances. We were told, and documents were filed to confirm, that the grievors Cherry and Gorelle worked in Barrie on Wednesday, Thursday and Friday, January 5, 6 and 7, 1994 at the Royal Victoria Hospital for 8 hours per day. Both grievors claimed and were paid for one and one-half hours of travel time each way; Gorelle was also paid $77.60 for mileage. They each also claimed the $70.00 allowance for each of the three days. They were paid for the first two days and their claims for Friday were denied.

8. Similarly, we were told that the grievors McIntyre and White travelled to Peterborough on January 5 and 8,1994, respectively, on single-day trips, working 8 hours on each occasion. For January 5,1994, McIntyre claimed and was paid four hours travel time and $123.24 for mileage; for January 8, 1994 White claimed and was paid three hours of travel time. The claims of each employee for the $70.00 allowance were denied.

9. In addition, certain facts were stipulated to which related to the past practice of the two employers in dealing with claims for the $70.00 travel allowance. While the parties did not agree as to the probative value of this evidence or the conclusions to be drawn from it, they did agree on the following additional facts:

(a) neither employer has ever required employees to provide actual proof of expenses as a condition of payment of the $70.00 allowance, or indeed of payment of any of the allowances set out in paragraphs (a) through (d) of Article 12.05.01;

(b) the five employees who are grievors in the present referral were not asked to and did not provide receipts for actual expenses after their claims were refused in 1993 and 1994;

(b) Otis refused claims made by the grievors McIntyre and White for the $70.00 travel allowance in one of the two circumstances described in paragraph 6(e) above on fifteen occasions in 1993;

(c) on two other occasions in 1993 Otis approved payment of the $70.00 allowance to these two employees where they made single day trips to the zone;

(d) on four further occasions in 1993 the grievor Bryce travelled to Peterborough on sin­gle day trips, claimed and received payment for travel time and mileage, but did not claim the $70.00 allowance; and,

(e) on the occasions prior to those in January, 1994 on which the employer refused to pay the $70.00 allowance, the union had discussions with Otis and took the position that the employees were entitled to the allowance, but no formal grievances were filed until the two which are the subject of the present referral.

10. The issue before us is essentially whether or not the language of Article 12.05.01(d) entitles employees to payment of the $70.00 allowance for days on which they do not spend the night away from home at the end of the day's work. On its face, the language does not require employees to stay away from home or incur accommodation expenses in order to qualify for the per diem allowance, but only to work for a day in the geographic area delineated. The employer argues, however, that it is implicit in the language of the Article as a whole that the amount set out is intended to be a "normal" amount for food, shelter and incidental expenses incurred by travel­ling employees, which can be reduced, or indeed increased, where the actual expenses of an employee vary substantially from that amount.

11. It is true that Article 12.05.01(0 appears to establish a procedure for varying the amount of the allowances set out in sub-paragraphs (d) and (e), which refer to per diem and weekly rates respectively. The employer argues that the presence of and the language of this sec­tion suggests that the $70.00 rate only applies if it is "reasonable" having regard to the actual expenses incurred by the employee. As such, if the employer knows that the employee did not stay overnight (which they will know once an employee claims either travel time or mileage for the same day) then it is fair for the employer to decide not to apply that amount and to reject the employee's claim. The process once the claim has been rejected, according to the employer, is for the employee to provide proof of actual expenses totalling to $70.00 (or presumably for some lesser amount which might then be approved and paid).

12. This interpretation of Article 12.05.01(f), however, cannot be supported by a close reading of the language of that section. The paragraph begins by noting that "should the amounts specified in paragraphs (d) and (e) 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" (emphasis added). It goes on to provide that "(t)he Employer may require that legitimate receipts be furnished by the employee to substantiate such request for increased compensation" (emphasis added). Thus, a clear process is established for a request by an employee to increase the amount of the per diem or weekly allowances where the actual expenses incurred are greater than the amounts established by the agreement. It is interest­ing to note that the consent of not only the Employer but also the Union is required in order for such increased payment to be made, possibly to avoid charges of favouritism where the rate estab­lished by the agreement is varied for a particular employee.

13. It is equally clear on the language set out above that the process described by the first two sentences of sub-paragraph (0 does not apply to a situation where the employer feels that the per diem or the weekly amount is too generous. Both sentences refer specifically to the situation where the amounts set out in the agreement are considered to be insufficient and the employee is requesting an increase in the allowance. The opposite situation is, however, referenced in the final sentence of sub-paragraph (f), which provides 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". This language clearly limits the employer's right to substitute a lesser amount than the $70.00 established by the agreement to situations where the consent of the the Union has been obtained, and does not permit the employer to require employees to prove their actual expenses as they are specifically mandated to do where an employee requests an increase in the general per diem rate.

14. Thus, the language of Article 12.05 .01(f) only confirms the plain meaning of sub-para­graph (d) that an employee is entitled to claim the $70.00 allowance whenever he works a day in the zone, irregardless of whether or not he has actually incurred that amount in expenses and with­out being required to provide receipts to prove his actual expenses. The only exception to that sec­tion offered by sub-paragraph (f) is where the employer and the union agree that the amount can be varied.

15. The employer submitted that the union was unreasonably withholding its consent to a reduction in the amount where employees' expenses could be presumed to be much less than $70.00 because no accommodation expense had been incurred. However, it was admitted that there has been no request by the employer to the union to negotiate a lesser amount, and there was no evidence as to the nature of discussions between the parties and in particular their positions as to whether a reduction was appropriate in these cases. Given these facts, it is impossible for us to conclude, as the employer has asked us to do, that the union is unreasonably taking the position that it won't agree to a reduced amount unless it "feels" like doing so.

16. In fact, the employer relies upon sub-paragraph (f) to suggest that the responsibility falls to the employee and/or the union to justify payment of the $70.00 allowance in circumstances where the employee does not incur accommodation expenses. This is clearly not the case, given that the $70.00 payment is established as the norm by the language of sub-paragraph (d), without reference to a requirement that the employee stay out of town. If the employer feels that it is justi­fied in a particular case in not paying the full amount, it is incumbent upon them to seek the agree­ment of the union to vary the amount as established by sub-paragraph (f), in the same way that an employee must initiate the process for obtaining the approval of both the employer and the union where he wishes to claim an increased amount.

17. The union argues, and we agree, that this process is to be contrasted to that established for the other two locals covered by the provincial agreement. Article 12.05.02(c) of the agreement, entitled "Living Expenses", provides specifically for the payment of "room, board, laundry and incidental expenses" at the rate of $70.00 per day for the employees of Local 90 in Hamilton when they travel to a comparable "zone". The last sentence of that sub-paragraph provides that "where expenses fall below the allowance agreed on, the Company reserves the right to pay only the costs involved". The same language appears in Article 12.05.03(c) and applies to the employees of Local 96 in Ottawa. We cannot agree with the argument of counsel for the employer that we should pre­sume that a similar reservation is implied for the Toronto local; on the contrary, the existence of quite different language in the provisions applying to Local 50 demonstrates that a different deal applies for those employees, requiring the consent of the union as explicitly stated.

18. The evidence of past practice at Otis is not helpful in interpreting the language of Arti­cle 12.05.01(d). First, it is not consistent and thus does not establish a clear practice. Secondly, there is insufficient evidence of agreement or even acquiescence by the union to permit the use of the practice evidence as an aid to interpretation or to mount an argument of estoppel. At most, it establishes that Otis has been moving throughout 1993 towards a consistent position that the $70.00 allowance will not be paid in the circumstances set out in paragraph 6(e) above, which posi­tion has been challenged by the union as a violation of the provincial agreement.

19. Finally, the employer relies upon a B.C. arbitration decision on a similar grievance, Otis Elevator Co. Ltd. v. International Union of Elevator Constructors, Local 82 (decision of RB. Bird, January 4, 1978). In that case, an employee was assigned to work in Kelowna, which fell out­side the secondary jurisdiction, or "zone", of the Vancouver local of which he was a member. He did not, however, incur any accommodation expenses arising from travel, such as hotel costs, as he lived in Kelowna, and the employer therefore denied him payment of the $140.00 per week allow­ance established by the agreement for work beyond the zone.

20. Counsel for the employer cited several portions of the conclusions of the arbitrator which seem to support his argument that an employee can be required to provide proof of actual expenses before being paid th~ allowance, and that the amount paid must be "reasonable" having regard to those actual expenses. It is important to note, however, that the collective agreement in this case contained very different language describing the process for adjustment of the allowance~ in paragraph 3(a)(i):

(i) If at any time it is found that the living allowance provided by this Agreement is not adequate to cover reasonable expenses which are actually incurred, the employer agrees to reimburse the employee for such actual expense. It is also agreed that where the actual expenses fall below the above- stated allowance, the employee will only be reimbursed for his actual cost. These adjust­ments, if application, are meant to apply to all areas in excess of 75 miles from City Hall and to such portions of that secondary jurisdiction between the "brown travelling zone" and the 75 mile radius which may qualify for additional reimbursement of expenses. However, the employer is given the option of paying for the subsistence of his employee at a first-class com­mercial establishment in any area between the "brown travelling zone" and the 75 mile radius if the employer deems such option to be in his best interest.

21. This language grants the employer full discretion to substitute the actual cost for the amount of the allowance where actual expenses fall below the amount specified in the agreement. Notably, it makes no reference to agreement by the union. On the other hand, the employer retains no discretion as to whether or not an increased amount will be paid when the allowance is not adequate to cover living expenses. This language, and the process it establishes, is substantially different from the language in the provincial agreement which we are asked to interpret, and the conclusions of the arbitrator are therefore not persuasive.

22. For all of these reasons, the grievances of the union on behalf of the five grievors are allowed. We find that the language of Article 12.05.01(d) requires that the employer pay the $70.00 travel allowance in the circumstances described in paragraph 6(e) above, irregardless of whether or not an employee who works a day in the "zone" incurs accommodation expenses on the night following the work assignment, unless an agreement to pay a lesser amount is reached between the union and the employer.

23. The parties have asked that we not make any award as to compensation at this time, but remain seized as to any outstanding issues relating to compensation if they are unable to agree between them on the amounts payable as a result of our decision on the merits. We will remain seized for this purpose.