2425-00-G International Union of Elevator Constructors Local 90, Applicant v. Schindler Elevator Corporation, Responding Party.

BEFORE: Inge M. Stamp, Vice-Chair.

APPEARANCES: Stanley Simpson and Robert Crosby for the applicant; Patrick Moran and Peter Johnson for the responding party.

DECISION OF THE BOARD; May 29, 2001

1This is a referral of grievance to arbitration (construction industry) pursuant to section 133 of the Labour Relations Act, 1995 (the “Act”). The parties disagree with respect to the interpretation and application of article 12.05.02 (c) of the Ontario Provincial Collective Agreement between the National Elevator and Escalator Association and the International Union of Elevator Constructors (the “collective agreement”). The Board notes the employer and employee bargaining agencies were given notice of this proceeding. No one appeared on behalf of the bargaining agencies.

2The relevant article is set out below:

12.05 TRAVEL ZONES AND TIMES WITHIN THE PRIMARY AND SECONDARY JURISDICTIONS

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

• ½ 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) a.m. 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 dollars ($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 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.

3The parties disagree as to the interpretation and application of article 12.05.02 (c) above. The applicant takes the position that the collective agreement requires the employer to pay expenses of $70.00 per day without proof of payment.

4The responding party states the collective agreement provision in article12.05.02 (c) must be read together with the last sentence of this article which provides: “It is also understood that, where expenses fall below the allowance agreed on, the Company reserves the right to pay only costs involved.”

5Article 12.05 is silent with respect to travel time between 25 miles from the city hall (article 12.05.02 (b)) and 65 miles from the city hall in article 12.05.02 (c). The parties agreed that the practice is to pay travel time beyond 25 miles for the amount of time spent on the road. If it takes one and one half hours to get to the job site, employees are paid for that amount of time each way. From time to time an employer has challenged the amount of time it takes to get to a given job and adjustments have been made by the employee for travel time claimed beyond the 25 miles.

6The following facts are agreed to by the parties. The dispute involves employees driving a company vehicle. The language in article 12.05.02 (which specifically refers to Local 90 in Hamilton) has been in the collective agreement since before 1978.

7It is agreed that in the past the responding party has paid travel time to and from the job and the $70.00 as follows:

a) a one day job- travel time to the job and back plus $70.00

b) a two day job – travel time to the job on Monday (the first day) and travel time back on Tuesday (job is finished) and $70.00 per day, for Monday and for Tuesday.

8Now the responding party takes the position that on a one day job it will pay the travel time up to the job and back but will not in those circumstances pay $70.00. With respect to a job of more than one day, i.e. the example in b) above the company will pay the travel time but will not pay the $70.00 for Tuesday because the employee did not stay overnight.

9The applicant asserts that in the past (and based on the same language in the agreement at least since 1978) employees went from Hamilton to Kitchener to work on two, three or four day jobs where they did not stay over. In those circumstances in the past the responding party paid the $70.00 without any proof of expenses.

10Counsel for the applicant points out that employees pay income tax on travel time but are not taxed on the $70.00. Travel time is based on the hourly base rate of $40.00 plus vacation.

11This issue arose when in September 2000 the employer requested to see receipts for expenses before paying for living expenses. It is the last sentence of article 12.05.02(c) that is in dispute, i.e. the company reserves the right to pay only the costs involved. The employees are travelling in company vehicle for which the employer picks up all expenses such as gas, insurance and maintenance costs.

12Mr. Robert Crosby, the business representative of the applicant, testified as to the responding party’s past practice with respect to the payment of the $70.00. If employees went beyond the 25 mile radius they were reimbursed $70.00 for expenses. The responding party advised the union in September 2000 by memorandum that “the payment of living expenses ($70.00 per day) is not automatic, any and all claims must be supported by receipts. This is per the agreement, section 12.05.02, clause C”.

13Mr. Crosby testified that if he had known the responding party was going to change its practice with respect to the living expenses payments in September 2000 he would have attempted to change the language of this clause during negotiations. Mr. Crosby agreed there was an opportunity to make changes to that language in the current round of negotiations and that in fact there was a proposal to change the language.

14Counsel for the applicant submits that the company has had a practice of paying $70.00, without supporting receipts, based on language that has existed at least since 1978. Counsel asserts this evidence of past practice goes to resolving any ambiguity and establishes an estoppel.

15Counsel for the applicant asserts employees were given an option to staying over or going home each day. The collective agreement does not provide such an option. There is an advantage to both parties. The company does not have to pay the travel time to and from a job that lasts more than one day which would amount to more than $70.00. Travel time is taxable, while the employees receive the $70.00 tax-free.

16Counsel for the applicant takes the position that after 23 years or longer, the latent ambiguity was resolved by the parties interpreting that the $70.00 includes travelling to and from the jobsite. The company knew the men were not staying overnight but paid the $70.00. Counsel takes the position that there was an understanding that this $70.00 covered the option of either staying at a hotel or travelling home and coming back the next day. The parties understood that the $70.00 is earned, it is paid for a day worked out of town.

17Counsel for the applicant states there is a latent ambiguity which was resolved by 23 years of uninterrupted practice. The $70.00 could be used to travel if you did not want to stay at a hotel. It is the applicant’s view this practice does not take away the responding party’s right to ask to see receipts where an employee actually did stay at a hotel or incurred costs such as meals etc. It is only when the employee used the $70.00 for room and board that the company has the right to question the costs. The company does not have the right to take away the option to get paid $70.00 per day in lieu of staying overnight.

18The company benefits because it does not have to pay daily travel time. There is a quid pro quo. In the alternative the applicant submits it is relying on the estoppel argument. Counsel for the applicant submits if the Board does not find an ambiguity there is a past practice based on the same language in the collective agreement and that creates an estoppel. If the union had known the company was going to pull the plug on the practice of paying the $70.00 the union’s representative would have tried to get changes in the collective agreement language. There is some disagreement among arbitrators whether a lost opportunity to negotiate is part of the estoppel. Counsel submits the balance of arbitrators support the view that the doctrine of estoppel does apply to lost opportunities to negotiate. Counsel for the applicant asserts in this case there was a lost opportunity to negotiate different language in 1998.

19Counsel for the responding party submits article 12.05.02(c) provides for expenses up to $70.00 for room and board etc. within that particular travel zone. This is not money “earned”. If employees incur expenses they will be compensated up to $70.00 per day. An employer may pay the $70.00 and not worry about the actual amount a hotel may have charged.

20There is no ambiguity in the language. An employee gets “up to” $70.00 a day. The company reserves the right to pay only that amount that is out of pocket. Counsel for the responding party does not agree that there was an understanding between the parties with respect to this payment of $70.00. There was a practice of paying $70.00. The practice and the language are inconsistent. That does not change the meaning of the language and does not create an ambiguity. The language is clear on its face. Counsel for the responding party submits article 14.04 prohibits an arbitrator to modify any provisions of this collective agreement.

21Counsel for the responding party submits the employer has not given the applicant any indication that it would not rely on the last sentence of article 12.05.02(c). The employer has not exercised its right under the last sentence of article 12.05.02(c). However not having exercised the right, and where that language remains in the collective agreement, it does not take away the employer’s right under that language.

22The responding party is now attempting to exercise its rights under that provision of the collective agreement. Counsel for the responding party submits the applicant is seeking as a remedy an order that the employer pay “expenses of $70.00 per day without proof of payment as per article 12.05.02(c) of the collective agreement between the parties”. Counsel asserts the applicant’s theory is flawed. The applicant says if you do not use the money for room and board then you have to pay the $70.00 without providing any receipts. But if the employee does stay overnight and/or incurs expenses then the employer is entitled to ask for receipts and only pay for actual costs up to $70.00.

23Counsel for the responding party takes the position that by not exercising a clear right it may have been an act of indulgence but that does not mean that the employer cannot exercise that right at a future date. (See Re Pharma Plus Drugmarts Ltd. and United Food & Commercial Workers, Local 175 (1990) 14 L.A.C. (4^th) page 303).

24In Re Elan Tool and Die Ltd. and United Automobile Workers, Local 127 (1985) 18 L.A.C. (3d) page 17 the arbitrator Weatherill said “….it is my view that even if such a practice had existed, and if the company’s “clarification” of its practice were really a modification thereof, the union may not, through the grievance and arbitration procedure under this collective agreement, enforce such practice as thought it were required by the collective agreement and obtain arbitral direction that the company return to it.”

25Counsel for the responding party submits that the $70.00 is not earned. It is reimbursement for expenses. This is so for two reasons. First the collective agreement provides for it and secondly it is the lst of May today and the employees would have had to report it on the tax forms as earnings which they did not. The collective agreement provides for expenses for room and board, laundry etc. up to $70.00 per day. This is paid when employees travel to a particular zone where they are likely to incur these kinds of expenses. It is not paid for other zones. The language of the agreement reserves the right of the employer to pay only the costs involved. Counsel submits this grievance should be dismissed.

26In response counsel for the applicant states that the parties treated the word “expenses” in the broadest sense. It appears on the wage statement as a “non-taxable” expense. The applicant is relying on this ambiguity and the past practice and what the parties meant by “expenses”. There was an understanding of what “expenses” meant over 20 years. That understanding included the choice of taking the $70.00 as an option – as an earned expense. The applicant submits it means “travel time” when you are not staying in a hotel overnight.

27Counsel submits Pharma Plus, supra, is not applicable to the facts in this case. Counsel disagrees that a practice of 23 years or more is an act of indulgence. The practice for the last 23 years goes to the estoppel.

DECISION

28In September 2000 the company gave notice to the union that it would apply article 12.05.02(c) of the collective agreement with respect to this payment and in particular the last sentence which provides that the company reserves the right to pay only the costs involved. If employees stay overnight they will get paid for expenses at the rate of up to seventy dollars ($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.

29It is not disputed that the employer’s practice of paying the $70.00 in the past was different than what was provided in the collective agreement. But a different practice does not create an ambiguity in the language. Nor is there any evidence that the parties had an “understanding” that the living expense was paid as travel time where employees chose to return home every day instead of staying overnight within the 65 mile zone.

30The applicant asks the Board to make an order “requiring that the responding party be ordered to pay expenses of $70.00 per day without proof of payment as per article 12.05.02(c) of the collective agreement”. That is not exactly what the agreement says. The agreement states the company reserves the right to pay only the costs involved.

31The Board does not find that there is an ambiguity in the language of the agreement nor does the Board find that an ambiguity was somehow created by the responding party when it paid the rate of $70.00 without determining whether that was the actual cost to cover room and board etc.

32With respect to the estoppel argument made by the applicant the Board notes that the hearing in this matter took place on May 1^st, 2001. This grievance is filed under the provincial collective agreement in the ICI sector which expired the day before the hearing, on April 30, 2001. The responding party clearly put the applicant on notice in September 2000, some seven months before the expiry of the collective agreement and before negotiations would be completed for the new agreement, that it intended to enforce its rights under article 12.05.02(c) of the agreement by paying only the actual costs incurred up to $70.00.

33The applicant urged the Board to find that an estoppel exists because of a lost opportunity to negotiate different language during the previous round of provincial bargaining in 1998. The Board does not find on the facts before it that there was an estoppel created by the conduct of the employer. However even if there were such an estoppel it would have expired the day before the hearing of this matter, on April 30, 2001. The applicant has made proposals with respect to changes in this language during the current round of negotiations.

34Having regard to the facts put before the Board and the submissions of the parties the Board finds there has been no violation of article 12.05.02(c) of the collective agreement. This grievance is dismissed.

“Inge M. Stamp”

for the Board