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PROVINCE OF NEW BRUNSWICK

VIEWS: 9 PAGES: 10

									IN THE PROVINCE OF NEW BRUNSWICK

IN THE MATTER OF THE PUBLIC SERVICE LABOUR RELATIONS ACT, RSNB c. P-25

AND IN THE MATTER OF A REFERENCE TO AN ADJUDICATION


BETWEEN:



     Canadian Union of Public Employees, Local 1253
     (Winston Johnson)

                                                                      Grievor


                                       - and -


     Board of Management

                                                                      Employer


                                       AWARD


DATE OF HEARING:        November 29, 2007
                        at St. Stephen, New Brunswick


APPEARANCES:            For the Union            -   Vallie Stearns
                        For the Employer         -   Michelle Brun

ARBITRATOR:             G. L. Bladon

DATE OF AWARD:          December 18, 2007
1.     This grievance arises from the employer’s refusal to pay mileage expenses incurred by

the grievor for his annual cardiological examination which includes a stress test.



BACKGROUND

2.     The grievor is a school bus driver who reports to work in St. Stephen, New Brunswick –

approximately 20 kilometres from his home in Lawrence Station. All school bus drivers are

required to submit proof of medical fitness every two years. Where the bus driver has a “heart

condition” history, the individual – such as this grievor – is required to provide a yearly

cardiological report which includes the results of a stress test – see N.B. Reg. 2001-51, s.10.

Because the hospital in St. Stephen does not have the facilities to administer this test, the grievor

travelled to Saint John to see his cardiologist and undergo the necessary examination. He used

his own vehicle and submitted a claim for mileage for 200 kilometres at the government rate of

38 cents per kilometre for a total of $76.00.



3.     Article 21.08 of the current Collective Agreement provides:

       “21:08 Driving and Medical Test

       The School District agrees to reimburse out-of-pocket expenses of employees
       required to pass a compulsory driving test and/or medical test. This
       reimbursement shall include the fee for such tests and the related expenses
       incurred. Bus Drivers shall be allowed the use of a School Bus for renewal of a
       Driver’s License upon reasonable notice and at a time when the buses can
       reasonable be expected to be available. For greater clarification Bus Drivers
       shall not be reimbursed for fees charged for initial or renewed drivers licence.”




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4.     The employer refused to pay the claim. It based its decision on an award of adjudicator

Doucet in Re CUPE (St. Amand and Poitras) and Ministry of Education, School District #3,

(2005), unreported, and the award in Re CUPE (King) and Board of Management, unreported,

released June 28, 2006. The St. Amand award concerned a claim for mileage expenses incurred

by grievors for their two year check-up. Arbitrator Doucet dismissed the grievance advanced

under the current Article 21.08 noting that the provision had remained unchanged in the

Collective Agreement since 2001 without giving rise to a dispute between the parties. He held

that St. Stephen – District 10 was exception to the general practice in the province which

indicated that the parties did not consider these expenses to be recoverable under the heading of

“related expenses”.    Further he noted that Articles 15.04, 20.05 and 21.04 make specific

provision for payment of expenses, and by way of contrast, Article 21.08 does not. He held that

only those expenses having a direct causal connection to the driving and medical tests were

included in Article 21.08 which did not include meals and mileage for the medical test taken in

the grievor’s community. He concluded that Article 21.08 did not employ sufficiently clear

language securing this financial advantage for members of the bargaining unit as the employee

was free to see a doctor of his own choice at a time convenient to him which did not conflict with

his normal working hours.



5.     In King, the union again sought a ruling to force the employer to pay mileage expenses

for the two year medical check-up. In that matter similar arguments were made by the parties.

The board found that the past practice of paying mileage claims in District 10, in contrast to the

practice in other districts, did not assist in resolving the latent ambiguity of the words “related

expenses”. It found further that the articles reviewed by Arbitrator Doucet providing for specific




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expenses were in contrast to other more general articles (6.05 and 21.03) under which the

employer did, in fact, pay for meals and mileage. At paragraph 16, the board expressed its view

that the provisions allowing an employee to take a school bus to his appointment, taken with

general industry practice of including meals and mileage as related expenses (and supported by

the cited authorities in paragraph 17), led to an inference that the parties intended to include

mileage in the term “related expenses” in connection with mandatory medical examinations.

Nonetheless, the grievance was dismissed on the basis of res judicata. The board found that the

same issue between the same parties under the same provision of the Collective Agreement had

been decided by Arbitrator Doucet; and, while the board disagreed with his conclusion, it was

not prepared to say he was “clearly wrong” as the authorities require if the board is not prepared

to defer to his decision.



POSITION OF THE PARTIES

The Union

6.      The Union argues that the decisions in the St. Amand and King do not constitute res

judicata because the issue in dispute here is not identical to the issue decided in those cases – see

Brown and Beatty, Canadian Labour Arbitration at paragraphs 1:3100: 2:3221: Re Duplate

Canada Ltd. and UAW (1976), 12 L.A.C. (2d) 125, Re Toronto Transit Commission and

Amalgamated Transit Union, Local 113 (1985), 21 L.A.C. (3d) 346, Re New Brunswick and

CUPE, Local 1190 (Ruff) (1997), 63 L.A.C. (4th) 56, Re Canadian Safeway Ltd. and RWDSU,

Local 454 and 480 (Smart) (2001), 96 L.A.C. (4th) 209, Re J.S. Jones Timber Ltd. and IWA –

Canada, Local 1-3567 (2000), 93 L.A.C. (4th) 72.




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7.     In St. Amand and King the issue was payment of mileage in connection with the

mandatory two year medical examination. Here the issue is payment for the same expense but in

relation to a cardiological examination outside the employee’s home community. The Union

consequently says that the Board should follow the rationale expressed in King that the mileage

for a mandatory medical test of this sort constitutes a related expense within the meaning of

Article 21.08 of the Collective Agreement.



The Employer

8.     The employer argues that the issue here is the same as the issue in St. Amand and King.

It arises out of the same provision of the Collective Agreement between the same parties;

consequently the doctrine of res judicata, as is understood in labour relations context, must apply

– see Brown and Beatty, paragraphs 1:3100, 2:3220. Furthermore, the dispute in this case

follows the negotiation of the current Collective Agreement which was concluded after the

Union had abandoned its initial proposal to amend Article 21.08 to provide for mileage

associated with mandatory driving and medical testing.



9.     In addition to St. Amand and King, the employer relies upon:

       Re Ault Dairies (1986), 24 LAC (3rd) 42;

       Re Coast Hotels Limited and Hotel, Restaurant and Culinary Employees and
       Bartenders Union, Local 40 (1995), 50 LAC (4th) 1:

       Re CUPE Local 1253 (Noreen Trail) and Board of Management unreported,
       released May 19, 2006:

       Re Canada Post Corporation and CUPW (Schlosser) (1993), 39 LAC (4th) 6:

       Re Children’s Aid Society of Cape Breton and CUPE Local 3010 (1992), 25
       LAC (4th) 83.




                                                                                                 5
ANALYSIS

1.     Res Judicata

10.    As the authors Brown and Beatty point out in their text Canadian Labour Arbitration at

paragraph 1:3100, arbitrators, while not strictly bound, should follow the award of another board

where the same dispute between the same parties arising from the same provision in the

Collective Agreement has been determined. That is because it is in the interest of good labour

relations to put an end to a multiplicity of proceedings and allow the parties, having a continuing

relationship, to move forward knowing the basis for their future relationship. However this

principle is only applicable where the issue in dispute is identical. The factual foundation in both

St. Amand and King (despite the reference to a stress test in the first sentence of the King award)

is the same: i.e., the grievors were seeking payment for mileage expenses incurred for the

mandatory two year medical test – a test administered by a general practioner in the employee’s

community. In St. Amand Adjudicator Doucet said at paragraph 39:

       “En effet, l’employé est libre d’aller voir le médecin de son choix. Il est
       également libre de fixer le rendez-vous au jour et à l’heure qui lui convient,
       pourvu que celui-ci n’entre pas en conflit avec ses heures normales de travail. Je
       ne vois pas pourquoi l’employeur serait tenu de payer pour ces frais si l’employé
       décide d’aller voir un médecin résidant à plusieurs kilomètres de sa résidence, à
       moins d’un langage claire en ce sens dans la convention collective. Ce qui n’est
       pas le cas ici.”


This reasoning played a significant part in Doucet’s determination which was respected in the

King award at paragraph 20 and the resulting decision in King to follow St. Amand despite

viewing the merits of the matter differently.




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11.    The facts underlining the mileage expense claim here are quite different: the employee

was required to take the annual cardiological examination involving a stress test at a facility

equipped to administer such a test at a time when the cardiologist was available. The grievor

reports to work in St. Stephen. The Charlotte County Hospital in St. Stephen does not perform

stress tests. The closest hospital is in Saint John. The grievor reported to that hospital to meet

with the cardiologist for the test essential to his continued operation of the school bus and, in

relation to which, he incurred a mileage expense for the 200 kilometre round trip. He was not

free to see a doctor of his own choosing on a date and time convenient to him. The issue here

then is quite distinct from that in St. Amand and King and as a result res judicata does not apply



2.     The Merits

12.    The issue now becomes an interpretation of the Collective Agreement in the current

circumstances. As in King, the parties adduced evidence of past practice: the union claimed that

District 10 had paid for this type of examination in the past. The District’s Director of Finance

and Administration (and Human Resources) admitted that two such claims had been paid

recently but such payments were made in error. The union also called evidence to establish that

the employer had made payments to two employees in District 16 who had cardiological

examinations in Moncton because the facilities were not available in Miramichi. The employer

answered by saying it did not learn of these payments until it began its preparation for this

hearing. The employer argued that it has always maintained its policy of not paying mileage for

travel to mandatory medical appointments. It said the payments in both District 10 and 16 are

aberrations and not reflective of any change in policy.




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13.    Past practice is an aid to interpretation where an ambiguity has been found in the

language of the Collective Agreement. In King the board found that a latent ambiguity arose

from the words “related expenses” in that there was uncertainty as to which expenses were

related to the “compulsory driving and/or medical test” mentioned in Article 21.08. Past practice

is helpful where there is conduct by either party which explicitly involves the interpretation of a

disputed provision in the Collective Agreement according to one meaning, and this conduct (and

inferentially this interpretation) is acquiesced in by the other party.     The conduct and the

corresponding acquiescence support the inference that the parties are agreed as to the meaning of

the provision. These parties have had a long standing disagreement as to the meaning of Article

21.08 (formerly 21.09). Neither party, despite the rulings in St. Amand and King, have changed

their position. The occasional payments in Districts 10 and 16 does not support an inference that

the employer is now prepared to accept mileage claims for medical tests. In order for an

adjudicator to rely upon past practice – as Brown and Beatty note at paragraph 3:4430 – it “will

have been a uniform practice over a number of years, such as one that had existed through

several renegotiations” or “one that had existed under the previous Collective Agreement or one

that had been openly and without surreptition carried out for… a long period.”



14.    Somewhat similarly, the employer offers the negotiating history of the current Collective

Agreement as an aid to resolve the ambiguity. At the most recent bargaining session leading to

the current Collective Agreement which was signed October 19, 2006, the union proposed this

amendment to Article 21:09:




                                                                                                 8
       21.09   Driving and Medical Test
               [Amend to read:] The School District agrees to reimburse as per Board of
       Management Travel Regulation for expenses of employees required to pass a
       compulsory driving test and/or medical test. This reimbursement shall include
       mileage allowance, meal allowance, and any other related out-of-pocket expenses
       incurred…” [remainder as in current agreement].”


During the course of bundled negotiations the union’s proposal was dropped. A tentative

agreement was reached on August 25, 2006 and the only change to the previous Article 21.09

was in its number to Article 21.08. The employer argues that this leads to the inference that the

union was in agreement with the interpretation of the Article as reflected in St. Amand. Standing

alone, such a position is arguable; however, the King grievance was ongoing during the

negotiations wherein the union was seeking an interpretation directly contrary to St. Amand.

And when the decision in King was released on June 28, 2006, the union, despite its loss, may

have taken some comfort in its reasoning. The negotiation of a Collective Agreement is always a

give and take exercise. Unless the negotiating history is unequivocal, the inference of agreement

over a long disputed interpretation is not reliable. Given the history of this disagreement, the

dropping of the union’s opening proposal lacks the necessary cogency to support a finding of

accord over the meaning of Article 21.08.



15.    In King there was a reference to Re HSABC and CEP, Local 465 (supra) where the Board

found the employer obligated to pay the gas expense of an employee on leave because there was

no limitation on the gas expense entitlement set out in the Collective Agreement. Here there is

no limitation on “expenses” other than that they be “related” to “a compulsory driving test and/or

medical test.” In King, at paragraph 16, reference is made to the general practice in industry to

include mileage as an expense to be reimbursed by the employer when travel is required in

connection with employment. The employer’s policy “Travel Allowances and Other Expenses”


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reflects this fact. The employee’s mileage expense results from the employer’s demand that the

employee complete the cardiac assessment as a condition of retaining the Class 2 CE driver’s

license and his continuing employment as a bus driver in that capacity. The test in this instance

could not be taken in St. Stephen where the grievor reported to work. He was required to report

to Saint John which is the closest facility with the necessary equipment. Webster’s New World

Dictionary defines “related” as “connected, associated”. There is no question that the mileage

expense is solely connected to the travel to and from Saint John for the mandatory cardiac

assessment. Consequently, I find it included as a “related expense” within the meaning of

Article 21.08. The grievance is allowed.




Dated at Fredericton, NB, this    day of December 2007.




G. L. BLADON
ARBITRATOR




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