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HomeMy WebLinkAbout1992-0307.Union.92-12-07 ONTARIO EMPLOY~-S DE LA COURONNE CROWN EMPL 0 YEES DE L'ON TA RIO GRIEVANCE C,OMMISSlON DE SETTLEMENT REGLEMENT BOARD DES GRIEFS 180 .DUNDAS STREET WEST, SUITE 2100 TORONTO, ONTARIO MSG.IZ8 TELEPHONE/TELEPHONE '4 161 326- 1388 180, RUE DUNDAS OUEST BUREAU 2100 TORONTO (ONTARIO) M5G IZ8 FACSIMILE,'T~LECOPlE' '4 16 326- 1396 307/92 IN THE N~TTER OF AN ARBITRAT[ON .Under ,THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLENENT BOARD BETWEEN OPSEU (Union Grievance) Grievor - and - The Crown in Right of Ontario (Ministry of Health) and Superior Ambulance Ltd. Employer BEFORE: W. Kaplan Vice-Chairperson T. Browes-Bugden Member D. Clark Member FOR THE A..Lee UNION Grievance Officer OntarioPublic Service Employees UniOn FOR'THE E. Keenan EMPLOYER Counsel Mathews, Dinsdale & Clark Barristers & Solicitors HEARING November 26, 1992 IntroductiOn By a grievance dated April 18, 1992, the union grieves a violation of Article 20.02 of 'the ColleCtive Agreementl The relevant part of that provision states: !'The ComPany agrees to provide up to one hundred and 'five dollars ($105.00) annually per full-time employee for the 'purpose of laundering and cleaning of uniforms conditional on presentation of valid receipts to management."' In bdef, it is the union position that the Collective Agreement provision is clear and unambiguous, and that "valid receipt" means any receipt given for legitimate expenses incurred by bargaining unit members in the laundering and cleaning, of their uniforms. It is the 'employer's position that "valid receipt" means a receipt 'provided by a professional cleaning establishment. The employer further takes the position that.insOfar as Article 20~OZ is ambiguous, bargaining .history resolves any' ambiguity, as does the employer's past practice of only reimbursing expenses demonstrated by the provision of a receipt frOm a professional cleaner. Finally, the employer takes-the alternative position that should the Board determine that the union's interpretation is correct, the union is estopped in the circumstances of this case from relying on its strict legal rights. The Evidence Mr. Mario Posteraro testified on,behalf of the union. Mr. Posteraro works for Superior Ambulance as a paramedic. He is also the President of the · local union, and has been involvedl in union activities, :including collective bargaining, since the early 1980s. Mr. Posteraro testified that he understOod that the purpose of Article 20.02 was to ensure that employees arrived at work in clean uniforms. Mr. Posteraro testified that the issue of whether employee uniforms had to be cleaned by professional cleaners .was never raised in any of the collective agreement negotiatiOns in which he participated. Introduced into evidence was an example of a receipt from SketChleY Cleaners. Mr. Posteraro testified that in his experience, receipts of this kind, Which shOw the amount paid and have a stamp on them stating: "Sketchley Cleaners Lime Ridge" are reimbursed by the employer. Also introduced into evidence Was a receipt dated March 20,'1992 prepared by Mr. Posteraro's wife. This: receipt itemizes the different uniform' items that she cleaned, and beside each item is a price. Mr. Posteraro testified that the price was established following a survey of dry cleaning establishment priCes which he conducted. For the purpose of preparing this particular receipt, the lowest commercial dry cleaning prices were used. Mr; Posteraro told the Board that his wife did the Cleaning work, that he paid her for that wOrk, and that she intended to declare that money as income. When Mr. Posteraro submitted this particular receipt to the employer, however, it was rejected,, and this was the proximate cause leading to the filing of the union grievance. Mr. Posteraro testified'that his wife. washed his uniform clothes.separately from his other clothes, and that various costs apart from labour, such as hydro, bleach, and detergent were incurred. Mrs..Posteraro works part-time. She does not, however, do any other laundry for. compensation. According to Mr. Posteraro, he prefers his wife to do his laundry. This is' 'more convenient than taking the cleaning in. Moreover, there are often, in his experience, delays in Obtaining reimbursement from the employer for professional dry cleaning company receipts. Mr. Posteraro testified that many of his members feel the same way that he does. Some of them live in the country, and so do not have ready access to dry cleaning establishments. Others do not like the delay in receiving payment. Some live in apartments, and. When they go to do their personal laundry, they have .to do their work laundry separately because of .blood and 'other contaminations, and do not like the fact that they: in'cur these expenses, for Which they Could not get any receipt, and are not reimbursed for them. On average, . Mr. Posteraro must clean at least three to four shirts a week, and at least one pair of pants. According to Mr. Posteraro, the $105.00 provided for in the Collective Agreement does not, and could not, come close.to reimbursing the actual cleaning cost that every employee must incur. Mr. Posteraro testified that while employees have not challenged this provision in the past, they came to the Point where they were so fed-up' that the union grievance was filed. In cross-examination, Mr. Posteraro agreed that the employer never stated in collective bargaining negotiations that the. $-105.00 . figure was intended to cover cleaning costs 'for 'the year. He also agreed that other benefits in the Collective Agreement only provided for partial reimbursement. Employer counsel reviewed some 'of the negotiating history of ArtiCle ZO.O_?_ with Mr..Posteraro, and he agreed that initially the union requested a base drop-off for dry. cleaning. Later the union asked' for a lUmp sum.payout .to all employees at the start of the year. Mr. Posteraro could not recall Mr. Ira Ross, the owner and operator of the company, saying in negotiations that he needed valid receipts in case of an audit from the Ministry of Health. Mr. Posteraro was asked some questions about how he and his wife arrived at the figures claimed on the receipt that the employer 'did not accept:. He repeated his evidence in Chief that he used the prices charged by the least expenSive cleaner he surveyed in the Hamilton area. The receipt in question Charges, for exa.mplel $4.25 for a pair of trousers, and $1.60 per shirt. It was'suggested to Mr. poSteraro tha,t it does not cost a lot of money to put several shirts and a pair of pants into the wash. Mr. Posteraro did not agree with that suggestion and stated that his hydro and other expenses were high, and .that he had many of the same expenses as did prOfessional dry cleaning establishments. Mr. Posteraro testified that he was surprised when the employer refused to accept Mrs. poSteraro's receipt~ ~. .Mr. Ira Ross testified on behalf of the employer.' Superior Ambulance is a · family-owned, and -operated business, and Mr. Ross has been involved in its management for many years. He testified that the reimbursement portion of Article 20.02 was negotiated into the Collective Agreement around November 1988. Mr.' Ross was present at.these negotiations, and he testified that the Union. asked for a lump sum amount to be given to all employees for cleaning and 'laundry expenses.. Instead,. Article 20.02 was agreed upon, and Mr. Ross testified that he made it clear at the negotiations that valid receipts. Would be required. He testified that this-was an important issue to him because of a 1985 Ministry of Health audit, and the decision of the Ministry not to allow certain expenses that he had claimed · because he did not have valid'receipts. In the result, Mr. Ross was required to pay these' expenses out of his own. pocket, and he testified that with this experience in mind he made it clear at the negotiations that valid receipts were a precondition to reimbursement. There was no discussion-in the 1988 negotiations, or subsequentlY, to the' effect that a receipt submitted by a spoUse would be'considered a valid receipt. Mr. ROss testifii~d that had he intended to give each employee $105.00 for cleaning and laundering, he would have done so directly. Mr. Ross does not consider the receipt prepared by Mrs. Posteraro to, be a valid receipt, and he noted that it did not contain a GST amount. Superior is reimbursed for 50% of its GST expenses. Mr. Ross testified about his budget process. Suffice it to say that each year he submits a budget and a copy of the CollectiVe Agreement to the Ministry. 'The budget lists each expense line by line. The expense for cleaning and laundering is calculated as if every employee 'made a $105.00 claim. 'This has never been the case, and in 1992, because of the limited increase in 'Ministry funding, combined with increases in benefit expenses, Mr. Ross has, with Ministry approval, taken the anl~icipated surplus from the cleaning and laundering line and transferred it to the emplOyee benefit line. If t~here was an audit, and if the Ministry auditors found invalid receipts in the .cleaning and laundering account, Mr. Ross would have to make up the amount out of his own pocket. Mr, Ross testified that the main concern in .negotiating the cleaning and laundering amount was .to provide employees, with money tO pay for the cleaning of their winter coats and their other dry cleaning. In his experience,, it only takes approximately two weeks for employees to be reimbursed, proVided they have submitted a valid receipt. -- -- ~ In' cross-examination, Mr. 'Ross was referred to the Collective .Agreement, and it was pointed out to him that the words "valid receipt" were not accompanied by any definition such as "by a professional cleaning business.'' He stated that Valid receipt implied that it would be issued by a professional cleaning-company. Mr. Ross was asked whether he asked the Ministry of. Health whether or not a receipt 'issued by a spouse i~ould be acceptable, and he agreed that he had not. Mr. Ross agreed that if every employee submitted professional cleaning company receipts for their full entitlement under the provision, he would be obliged to reimburse them. Mr. Ross did not agree, that the purpose of the provision was to. assist. employees in cleaning their uniforms and be reimbursed for Costs incurred in doing so. In his view, the purpose of the prOvision was to reimburse employees for costs incurred in the professional cleaning of their unifOrms, and this was made clear by the term "valid receipt.". It was pointed out to Mr. Ross' that the receipt from' Sketchley Cleaners did nOt have a GST number on it, and he testified that if he had been the person processing it he probably would not have approved it, He stated, however, that some improper receipts could fall within the cracks. In-his view, given the language of the Collective Agreement, there was no unfairness in not reimbursing employees for non-professional cleaning and laundering expenses. In re-examination, 'Mr. Ross was referred.to the Sketchley receipt, and he testified that it was possible that Mrs. Ross, who does the books, may have contacted Sketchley!s directly to Confirm the receipt and to obtain its GST number. He also testified that if every employee Submitted Article 20.02 claimS, he would run out of money and have to take the funds from wages.. The evi'dence having been comPleted, the case proceeded' to' argument. · Union. Argument According to union counsel, the language of Article Z0.0Z was clear and unambiguous. It required "valid receipts" for reimbursement, but nowhere did it saY that the only valid receipts were ones prepared by professional· cleaning companies. In counsel's submission, the intent of Article 20.02 was to reimburse emplOyees for cleaning their uniforms,, The only precondition to reimbursement was a'valid receipt. Provided that receipt was for cleaning and laundry, then it should, in counsel's submission, be reimbursed, whether or not it.was issued by a prOfessional cleaning company. In counsel's view, whether or not the employer has moved funds around in its budget was immaterial to the determination of the union's Article ZO.02 entitlement. Counsel also argued that given the clear and unambiguous language of the provision, this was not an appropriate case to-rely on extrinsic evidence, about past practice and bargaining history. COunsel argued that provided the receipts were for actual and~ legitimate expenses incurred, including hydro and supplies (and presumably the labour of the person performing the service), the employer was under a Collective Agreement obligation to provide reimbursement: Counsel also made some anticipatory objections with respeCt to the employer's estoppel argument, but given our disposition of that argument it is not necessary for this award to review those submissions. In conclusion, counsel asked that the Board uphold the union grievance and remain seized with respect, to t'he implementation of the award. Employer Argument. COunsel for the employer began her submissions by suggesting that the difference in views about the scope of Article 20.02 confirmed the -' existence of an ambigUity, and she argued that the .evidence of bargaining history and past practice Supported the employer's interpretation of the provision. In counsel's submission, Mr. Ross's evidence about bargaining.. history was uncontradicted, and she pointed out that Mr'. ROss made it clear' during negotiations why a valid receipt from a company'was important to him. Further .supporting this point was his evidence that if the employer .. had intended to make a cash cleaning and laundry grant to each employee, it would have done so directly.. Counsel noted that the purpose of'a receipt was to provide proof of a service provided at a.particular cost, and there was no way that the employer could be satisfied with that proof when it was provided by a spouse in the form introduced into evidence. In counsel's submission, there was nothing in the bargaining history of the parties to support an interpretation of Article 20.02 that would result'in reimbursement for cleaning and laundry expenses no matter who performed them and on. what basis. With respect,to past practice, counsel noted that the practice of the employer to reimburse only receipts issued, by Professional cleaning companies has been acquiesced in by the union since 1988. Counsel also made a number of submissions with ~respect .to estoppel. In brief, she argued that the union was estopped from bringing forward this claim. However, .giVen our disposition of the.'medts of this case, it is not necessary t° deal with the estoppel objection. Decision Having carefully considered the evidence and arguments, of the parties, we .have come to the conclusion that this grievance must be dismissed. We are of the view that the provision in question is somewhat ambiguous and that bargaining history and past Practice are useful in resolving that ambiguity.. The former makes it clear that it was never the intention of the' parties .. that employees be paid a lump sum for cleaning and laundry. Rather they. were to be reimbursed for cleaning and laundry 'expenses upon submission of a valid receipt. The.fact that the necessity for such a receipt was' " emphasized by Mr. Ross in negotiations confirms to us the conclusion that we have reached. It is our view that, in general, a valid receipt will be one issued by a professional' cleaning company. We can, however, ' envisage circumstances in which a valid receipt may be issUed.by a person, for ' example, where a person earns his or her livelihood from full-'or part-time laundry work. In such a case, the receipt issued by that person would, in our view, be a Valid receiPt. We ar~e not satisfied that the provision is broad enough to include anY receipt issued by anyone for cleaning and laundry work. ~ Had the parties wished to provide a lump sum laundry cash payment they could have done so. T. hey chose not to, and instead entered into a regime that contemplates reimbursement of some expenses upon submission of a valid receipt. The Past practice of the parties, in which only the receipts .of professional laundry companies received reimbursement, further clarifies the scope of 'the provision, 'Having made these determinations, it is not necessary to deal with' the employer's estOppel objection. "' In the result, the grievance is dismissed. DATED at Toronto this 7th day of December 1992. . T. Browes-Bugden( ~ -D..Clark Member