HomeMy WebLinkAbout1989-0999.Policy, Stasiulis & Ziliotto.95-02-21SE-ITLEMENT ReGLEMENT
DES GRIEFS
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GSB# 999/89, 169/90, 170/90 CUPE LOCAL 1750
IN TEE RATTER OF AN ARBITRATION
Under
THE CROWN EMPLOYERS COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
BETWEEN
CUPE (Policy/Stasiulis/Ziliotto)
- and -
Grievor
The Crown in Right of Ontario
(Workers' Compensation Board)
Employer
BEFORE: E. Marszewski Vice-Chairperson P. Klym Member
D. Montrose Member
FOR THE GRIEVOR M. Wright
Counsel
Sack, Goldblatt, Mitchell
Barristers & Solicitors
FOR THE P. Youno EMPLOY1 Counsel-
Filion, Wakely & Thorup
Barristers & Solicitors
HEARING February 4, 1993
March 3, 1994
DECISION
By a grievance dated April 25, 1989, the Union has
alleged that the Board discontinued an established practise with
respect to the payment of travel expenses contrary to Article 24 of . .
the Collective Agreement. The Union Policy Grievance reads as
follows: r
Statement of Grievance
It has always been the established practice, to pay Field
employees for kilometreage rates and parking when
travelling from their residence, by private or Board
vehicle, to their reporting office and further to pay the
lunch meal allowance as per distance from the reporting
office and not I' as the crow flys". Recently the Board
has attempted to discontinue this practice.
Discontinuance of this established practice violates our
Collective Agreement.
Settlement Recuired
That the Employer abide by the terms of the Article 24 of
the Collective Agreement and pay said expenses to field
employees from the date of discontinuation and for all
occasions in future.
In addition, by Grievance dated April 25, 1989, Mr. Linas
Stasiulis grieved as follows:
Statement of Grievance
It has been the established practise to reimburse the expense of kilometrage rates for travel by private or
Board Vehicle between my residence and reporting office
and reimburse parking at the office.
Since the week commencing March 13, 89, I have been
unjustly denied this reimbursement.
Settlement Reauired
Established practice continue.
That I be paid/reimbursed km. rates for travel between my
residence and reporting office and reimbursed for parking
at the office for all occasions commencing March 13/89
and future.
On January 12, 1990, Mr. Lawrence Ziliotto also grieved
that the Board had breached Article 24 of the Collective Agreement
for essentially the same reasons as specified in the Stasiulis __
grievance. The parties agreed to proceed with the Stasiulis
grievance and the policy grievance first, and to adjourn the-~'-
Ziliotto grievance and all other and related grievances sine die
pending a determination in the Stasiulis and policy grievances.
Stasiulis was a Rehabilitation Counsellor from Central
Ontario - South Unit. He was primarily a field worker who spent
four days per week visiting and counselling injured employees in
the field: at their homes, at the scene of the accident at the
employer's premises, at training programs and at thei,r doctors'
offices. Although most of the field work took place in
Scarborough, the Grievor also performed a large proportion of his
work at his place of residence in Terra Cotta, located north of
Metro Toronto. On the fifth day of each week, Stasiulis was
expected to come into the office near BloOr and Yonge to review
reports, schedule appointments, meet with other staff, look through
the mail and pick up new referrals. However, since Stasiulis also
spent part of the fifth day in his automobile making field calls,
he always used his automobile to go to work on the fifth day. In
the past, Stasiulis had been compensated for his work related --~-
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travel expenses incurred during the fifth day of his work week in
accordance with the Board's Expense Account Policy 62-06-01.
The relevant portions of the Expense Account Policy 62-
06-01 read as follows:
It is the policy of the Workers' Compensation Board to
reimburse employees for expenses incurred in the
performance of their assigned duties in accordance with
the general provisions set out below.
Under no circumstances does the Board require an employee
to incur reasonable and necessary expenses for the
conduct of Board business, without reimbursement within
the approved guidelines, as a condition of employment.
TRAVEL AND TRANSPORTATION.
GENERAL All travelling expenses within budgetary
limites are to be authorized by the
employee's immediate supervisor. This
authorization is subject to further
approval as may be required by the
Executive Director concerned.
. . .
METHOD OF TRANSPORTATION The method of transportation used will be
that which involves the least expense to
the board considering both the dollar
cost and the travelling time involved.
. . .
PUBLIC TRANSPORTATION Where public transportation is used by an employee on Board business, the expense
will be reimbursed.
. . .
AUTOMOBILE TRAVEL An employee may, with supervisory
approval, drive his or her own automobile
on Board business.
Where business travel exceeds 24,000
kilometers ina calendar year, the
employee may make application to have a
Board vehicle provided.
. . .
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REIMBURSEMENT FOR AUTOMOBILE EXPENSES Reimbursement will be paid in accordance
with the approved Kilometer Allowance
schedule as set out below.
. . .
DISTANCE TRAVELLED BETWEEN
EMPLOYEE'S
BOARD WORK ,BASE An employee using his of her own
automobile or a Board automobile, who is
required to travel on board business, ,._
will not be allowed to claim for the
distance travelled between the employee's
residence and the board work base unless
approved by the employee's supervisor. *-
. . .
By memorandum dated april 13, 1989, effective March 13,
1989, the Board revoked the supervisory approval for Stasiulis' use
of his automobile to go to work the fifth day of the week that
being his "designated reporting day". The April 13, 1989
memorandum required Stasiulis, and others in his position, to spend
the entire designated reporting day in the office so that field
calls were no longer required on that day. Therefore, the
employees were neither compensated for parking nor paid the usual
kilometrage rates if they drove thier cars to work on that day.
Instead, the employees,, were to be paid $2.20 for the day for bus
fare and Stasiulis was to be reimbursed for his transportation to
and from the office on the assumption that he would use the GO-
train service closest to his home. Apart from the requirement to
eliminate field calls on the designated reporting day, the nature
of the Stasiulis' work did not change. The goal of the new policy
was to have the employees use, one the "designated reporting day"
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the method of transportat ion l'which involved the least expense to
the Board".
Stasiulis' place of residence was 65 kilometres (one-way)
from the 2 Bloor Street East office. He refused to use the Go
train to travel to work on the designated'one day per week and
instead continued to drive his car to work and continued to submit
his travel expense sheets. The Board declined to re-imburse him..
for the mileage charges and paid him the equivalent of two public,
transport tickets.
The history behind the April 13, 1989 memorandum may be
briefly set out as follows. Early in 1989, the Board held meetings
with the Central Ontario South caseworkers at which time members
had the opportunity to ask~questions about the implementation of,-a
new expense policy. The Board's answers to these questions were
contained in a March 8, 1989 memorandum, excerpts of which are
reprinted as follows:
1. Expense Accounts:
The implementation of the new expense account policy will
be delayed until the summer of 1989. In its absence, the
management of Central Ontario South has decided that the
present expense account policy will be used as a guide
for the travel expenses for all of our field staff.
Therefore, on designated days in office the
Counsellor/Caseworker will use the most economical means
of transportation to reach Head Office. This of course,
means travel by TTC. Hence, Counsellors/Caseworkers will
be reimbursed at a rate of $2.20 per day.
If circumstances dictate an exception to this rule, the
individual person should see their appropriate Manager for
exception to this rule.
I i. ’ i \ (
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2. Davs in Office:
The Caseworkers were advised at the last meeting I
conducted with them, that they were to discuss with their
appropriate Supervisor their specific days in office.
with the caseloads at their volume, it was determined
that 3 days in office would be appropriate. However, as caseloads grow or if an exception is noted, these
exceptions should be discussed with the Supervisor to
determine change(sic) to the above-noted guideline.
3. Scheduling of Aooointments: ._
As was discussed with the Caseworkers, the scheduling of
their appointments was to be discussed with their
appropriate Supervisor. This was to allow the Supervisor
to have input into how, when, where appointments are
being arranged in order to ensure that we are complying
with the Strategy philosophy.
This discussion will also allow the'supervisor to advise
the Phone Clerks of the anticipated whereabouts of the
Caseworkers on their days out of office.
. . .
5. General Overall Exoenses:
As per the expense account policy, lunch will be
reimbursed to a maximum of $7.50 when a field staff
member incurs an expense for lunch when they are out of
office over the lunch break and more than 24 kilometres
away from Head Office.
. . .
Subsequently, an April 13,
Employee Expense Accounts, went to
employees. The memorandum read as fol
1989 memorandum entitled I
Stasiulis and the other
lows:
Further to our recent conversations, the following will
confirm the present status of expense accounts.
On your designated day in the office, you will be
required to 'use the most economical means of
transportation to reach the Board's Head Office. This is
in keeping with the Board's expense account policy, 62-
06-01, page 4. Therefore on that day you will be
required to travel by TTC and reimbursement will be made
at the rate of $2.20 per day. This is outlined in the
attached IDC dated March 8, 1989 by Mary McMerty,
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Manager, Central Ontario South.
As far as Linas' situation is concerned, reimbursement
for transportation utilizing the GO service closest to
his home can be reimbursed for his day in the office.
Since this information was verbally conveyed to you
during the week ending March 10, 1989 by Mary McMerty,
the above has been in effect since the week commencing
March 13, 1989. Therefore, expense accounts submitted
will be adjusted to reflect the above.
The new policy was also set out in the following April,
26, 1989, Inter-office Communication, entitled Expense Account
Policy, from the Board to all Program Heads, Client services:
Prior to the reorganisation in 1987 various practices and
guidelines relating to the Expense Account Policy were
administered by the Vocational Rehabilitation, Claims,
and Finance Divisions. NOW that those Divisions no
longer exist, some of these practices have become
invalid.
In order to ensure consistency and compliance with the
existing policy, we ask that you refresh yourselves and
your management staff by reading the Expense Account
Policy 62-02-01. Please pay particular attention to the
section on Method of Transportation.
"The Method of Transportation used will be that which
involves the least expense to the Board considering both
the dollar cost and the travelling time involved".
When applying this section of the policy, consideration can be
given to the utilization of public transportation.
The new policy was explained in a letter dated May 8,
1989, from the Board to CUPE Local 1750. Relevant excerpts from
this letter read as follows:
The issue as I understand it is that in the past all
vocational rehabilitation counsellors have been paid for
mileage and parking when attending at their reporting
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office on their designated reporting days, and now some
of these employees are being advised that they will only
be paid for the cost of using public transit when
travelling to their reporting office. Additionally the
policy grievance raised the issue of lunch meal costs
only being paid on the basis of "as the crow flies"
distance from the reporting office and not road distance
from that office.
. . .
Subsequent to our discussion, I have been advised that a
memorandum has been issued to all Program Heads in Client
Services Division drawing to their attention the need to
ensure that when staff are paid to travel on Board
.
business, they should, in accordance with the Expense
Account Policy, use the method of transportation, "which
involves the least expense to the Board..." A copy of '.-
this memorandum is attached for your information.
I understand that previously there were field staff in
the Vocational Rehabilitation, Claims and Finance
Divisions and each of these divisions had different
practices and guidelines relating to the Expense Account
Policy which was for Board-wide application. The three
divisions mentioned above no longer exist. Now all field
staff work in one division, Client Services. What has
been done is to rationalise the differing practices and
guidelines to ensure that all field staff are treated
with consistency when it comes to the application of the
Board's Expense Account Policy.
In this regard, I cannot see that there is any violation
of the collective agreement or the Expense Account Policy
as it applies to all Board employees. Travel expenses
were paid in the past when going to and from the
reporting office on designated reporting days. That
practice is continuing, the only thing that has changed,
in keeping with the Expense Account Policy, is that the
means of transportation to be used has been defined so as
to have consistency among all field staff.
It was the Union's position that a practise with respect
to meal and travel expenses had been established and that the Board
was precluded from varying the practice mid-contract. In addition,
the Union submitted that the practise further to the Board's
Expense Account Policy 62-06-01 had been incorporated into the
terms of the collective agreement by virtue of the wording of
,
\ (
-9-
Article 24.04. Article 24.04 and 24.05 of the collective agreement
read as follows:
24.04 Meal Allowance
(a) The current practice concerning meal and
expense policy will be continued for the
duration of this Agreement.
The daily meal allowance for three meals
in a day is subject to a maximum daily
allowance of $23.00.
. .
This amount is itemised as follows:
. . . .
24.05 Xilometraae Rates
(4 If an employee is required to use
his own automobile on the Employer's
business, the following kilometrage
rates shall be paid:
Effective May 30, 1990:
. . . . . It was thus submitted on behalf of the Union that the
Board could not change the practise which had been incorporated
into the terms of the Collective Agreement until the next contract
negotiations took place. Counsel for the Union referred .to the
following cases in support of this proposition: CUPE and The Crown
in Riaht of Ontario (Workers' Comoensation Board) and Zonni,
Unreported decision, Apri125, 1991, B. Kirkwood, CUPE 1750 and The
Crown in Riaht of Ontario (Workers' Comoensation Board) and Shaw,
Unreported decision, May 29, 1992, B. Kirkwood. Counsel for the
Union therefore argued that the Employer was estopped from changing
red to negotiate this issue ~ the policy or the practise and was requ ,i:
at the next contract negotiations.
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The Union sought a declaration that the Board to
compensate the employees in question for their kilometrage to and
from the office and for all of their parking charges on a
"designated reporting day".
Counsel for the Board took the position that the
principle of estoppel could not apply since,there was no evidence
of detrimental reliance on the part of the Union as the Union had,,
received notice from the Board with respect to the Board's
intention to change the Expense Account Policy practise. Counsel
for the Board submitted that Union should have dealt w'ith this
issue during the set of negotiations following the date when the
Union had received notice of the changes. It was submitted that
management has an unfettered right to change a practise and its
related policy at the end of the term of a collective agreement.
In addition to the above submissions, Counsel for the
Employer raised, more fundamentally, a jurisdictional issue which,
in his view, precluded this Board from dealing with this case in
any event. Mr. Young submitted that in view of the decision of the
Divisional Court in the case of Queen in Riaht of Ontario (Liauor
Licence Board of Ontario) vs. Ontario Liquor Board Bmolovees Union
and the Crown Bmolovees Grievance Settlement Board, (Unreported)
November 2, 1992, O'Leary, Hartt and Smith, J.J., in which it was
determined that~the use of a car by an employee to go to work was,
in that case, a "work method" and therefore, pursuant to Section
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18(l) of the Crown EmDloYees Collective Baroainino Act, 'not subject
to collective bargaining.
Counsel for the Union submitted in reply that -the
Divisional Court's decision was irrelevant to this case since the
issue in the instant case involves the Employer's ability to change
its practice with respect to its expense policy mid-contract, a
matter which is clearly bargainable since it addresses the issue of *_
total compensation, a term or condition of employment as defined by
Section 7 of the Crown Bmwlovees Collective Barsainins Act.
Jurisdictional Issue:
Prior to considering any of the other issues raised in
this case, it is necessary to consider the jurisdictional issue
raised by Counsel for the Employer. It is trite law that a
jurisdictional issue cannot be waived, even when it has not been
raised during a hearing. In this case, the jurisdictional issue
was raised by correspondence after the hearing and the Board re-
convened in order to hear the parties' submissions with respect to
this issue. There was no objection from Union Counsel to a further
hearing with respect to the jurisdictional issue.
The jurisdictional issue arises from the application of
Sections 7, 18, and 40 of the Crown Emwlovees Collective Baraaininq
Act, R.S.O. 1980, C. 108, to the facts of this case. These
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sections read as follows:
7. Upon being granted representation rights, the employee
organisation is authorized to bargain with the employer
on terms and conditions of employment, except as to
matters that are exclusively the function of the employer
under subsection 18(l), and, without limiting the generality of the foregoing, including rates of
remuneration, hours of work, overtime and other premium
allowance for work performed, the mileage rate payable to
an employee for miles travelled when he is required to
use his own automobile on the employer's business, . . . . ,_
18. (1) Every collective agreement shall be deemed to
provide that it is the exclusive function of the employer,
to manage, which function, whithout limiting the
generality of the foregoing, includes the right to
determine,
.~ (a) employment, appointment, complement, organisation,
assignment, discipline, dismissal, suspension, work
methods and procedures, kinds and locations of equipment
and classification of positions; and
. . . . .
and such matters will not be the subject of collective
bargaining nor come within the jurisdiction of a board.
40.-(l) If, in the course of bargaining for a collective agreement or during the period of operation of a
collective agreement, a question arises as to whether a .
person is an employee, the question may be referred to
the Tribunal and its decision thereon is final' and
binding for all purposes.
(2) If, in the course of bargaining for a collective
agreement or during proceedings before a board of
arbitration, a question arises as to whether a matter
comes within the scope of collective bargaining under
this Act, either party or the board of arbitration may
refer the question to the Tribunal and its decision
thereon is final and binding for all purposes.
The first issue which must be addressed if whether a
panel of the Grievance Settlement Board is a board of arbitration
within the meaning of Section 40(Z) of C.E.C.B.A., for if it is
then the jurisdictional issue must be referred to the Tribunal for
determination.
(
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Section 18 of C.E.C.B.A. provides that if a matter falls
within the Board's exclusive management function, such as "the
right to determine"... "work methods and procedures*', then such a
matter "will not be subject of 'collective bargaining nor come
within the jurisdiction of a board". We find that it is consistent
with the purpose of this section to find, as we do, that the word .,
'board' in Section 18 refers to the type of board of arbitration
which is an adjunct to or avenue of last resort for collective,.
bargaining, that being an interest board of arbitration. Article
l(l)(c) of C.E.C.B.A. defines a "board" as 'Ia board of arbitration
established under this Act", meaning an interest board. In
addition, we note that references to the Grievance Settlement Board
in C.E.C.B.A., such as for example, in Section 19, are stated as
references to "the Grievance Settlement Board" or "to the Board"
rather than Ita board". This position has also been taken in the
case of OLBEU and The Crown in Riaht of Ontario (Liauor Licence
Board of Ontario), Unreported Grievance Settlement Board decision,
November 4. 1988 (J.W.Samuels). We therefore find that this
panel of the Grievance Settlement Board is not precluded by
Sections 18 or 40 of C.E.C.B.A. from making's determination with
respect to the jurisdictional issue put before it in that this
panel is not covered by the term t'board" as used in Sections 18 and
40 of C.E.C.B.A.
The main jurisdictional issue is whether or not the
Grievor's use of his car for work purposes on the "designated
i
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reporting day" constituted a lVwork method" was therefore tiithin
management's exclusive right to direct or whether the use of the
employee's car was a "term or condition of employmentl* and
therefore bargainable and subject to the provisions of the
collective agreement.
The basis for the decision of the Divisional Court in the
L.L.B.O. case (supra) was the dissent written by Board Member ,,.
Collict case when the case was decided at the Grievance Settlement
Board level. Mr. Collict was of the view that the use of a vehicle
'6,s a "work method", the use of a "piece of equipment", or a
"procedurel', pursuant to the terms of Section 18(1)(a) of
C.E.C.B.A. and therefore, subject to the sole discretion of
management. Consequently, he was of the view that the Grievor's
use of a motor vehicle could "not be the subject of collective
bargaining nor come within the jurisdiction of a Board".
Mr. Collict's view was upheld on judicial review by the
Divisional Court in the L.L.B.O. case, Mr. Justice O'Leary
disposed of the application for judicial review with the following
endorsement:
The substantial issue before us is whether the use by an employee of his or her own car, is a condition of
employment that could under Section 7 of the Crown
employees Collective Bargaining Act, be a matter that may
be dealt with in the collective agreement, or whether it
is a "work method" that cannot be bargained about, by
virtue of Section 18(l) of that Act.
We adopt the reasoning of the board member
F.T.Collict who dissented in the decision of the Board. In our view it was patently unreasonable for the majority
i
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to conclude as they did that the use by an employee of
his or her own car may at times not be a "work method"
and so be subject to bargaining.
In our view Sec. 18(l) is clear and qlwork.methodll
cannot be subject to collective bargaining. The application is therefore allowed. No order as to costs.
In view of the endorsement of the Divisional Court in the
L.L.B.O. case, we find that an employee's authorised use of a motor .-
vehicle for work purposes constitutes a "work method" and is
therefore not bargainable. In other words, if an employee's use of rU
a motor vehicle for work purposes is not authorised by the Board,
the Board's refusal to compensate the employee for kilometrage or
parking expenses is neither bargainable nor grievable. However,
the actual mileage rate which employees are to be paid is a "term
and condition of employment II and therefore bargainable.
Conclusion:
We have reviewed and considered all of the evidence and
submissions of both parties and find that on the particular facts
of this case, the employer has the right to determine the means and
type of transportation to be used by employees for work purposes on
the basis that the type of transportation to be used for work
purposes falls within the category of "work method", within the
meaning of Section 18(l) of C.E.C.B.A and is therefore not subject
to collective bargaining. However, the expense policy applicable
to compensate employees for work-related travelling expenses, where
the travel has taken place by employer-authorised means of
._: i. i c
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transportation, is subject to collective bargaining. The
grievances are therefore dismissed.
Dated at Toronto this zist day Of February, 1995.
I concur .:
I concur ,. -:
D. Montrosk -
999189, 169/90, 170/90
WORKERS’ COMPENSATION BOARD
In addition to the jurisdictional issue raised by the parties, considerable time
was spent dealing with submission relating to the use of the ph.rase “expense
policy” as contained in Article 24.04(a). In both the Zonni and’-, the
boards of arbitration interpreted the expression “expense policy” as contained
in subparagraph (a) of Article 24.04, entitled “meal allowance”, to also refer
to non-food related expenses such as “Kilometrage Rates” (the subject of the
next Article, Article 24.05). I do not agree with this interpretation. Had the
parties intended to deal with meal allowances and travel and Kilmometrage Rates
together, they would not have devoted two seprate Articles in the collective
agreement, one for meals and the other for kilometrage+rates, but instead, the
two categories would have been dealt with together.
The parties have in fact devoted a separate article to each of “Meal Allowances”
and “Kilometrage Rates” It is also clear from a reading of the full text of
Article 24.04 that the article is designed to establish the parameters for
compensating employees for meals, within a set of monetary limits, and such
additional or other “reasonable expenses...upon the provision of:..receipts for
all meal expenditures... “(per Article 24.04(b)) above the amounts set out by the
specified meal allowance amounts. Article 24.04 must refer to meal and
meal-related expenses only, as set out in greater detail in each of subsection
(a), (b) and (c) of Article 24.04.
The conclusion might have been different had Article 24.04 not contained
sub-paragraphs (b) and (c), each of which amplifies the circumstances under
which employees are entitled to recover monies spent by them on food while they
are performing duties in the course of their employment. There is no wording in
any subsection of Article 24.04 which might permit an interpretation which would
enlarge the context of the article from meal and food related expenses to such
other items as travel, transportation or mileage. If Article 24.04 incorporates
the Workers’ Compensation Board Policy which respect to expense accounts, it
does so only with respect to those portions of the Expense Account Policy which
pertain to food and meal expenses. There is no ambiguity in the wording of
Article 24.04 which would trigger an investigation of any past practise
established by the parties with repsect to their interpretation of Article
24.04.
The interpretation of Article 24.04 is strengthened by reading Article 24.05.
In contrast to the wording actually,used in Article 24.04, the wording of
Article 24.05 is very simple and pertains only to Kilometrage Rates. Article
24.05 contains no reference to an expense policy. Apart from the fact that
Article 24.05 follows Article 24.04 in the collective agreement, the two
articles are totally different in form,structure and content and it is
impossible to incorporate by implication any of the terms of Article 24.04 into
Article 24.05. Finally, Article 24.05 is not ambiguous and therefore the
parties’ past practise with respect to the interpretation or application of
Board’s Expense Account Policy cannot be taken into consideration.
D.C. Montrose