BETWEEN:

(the "Company")

AND

(The "Union")

BOARD OF ARBITRATION: C. E. Bennett, CCJ - Chairman

Paul Siren - Union Nominee

Michael O’Brien - Company Nominee

There appeared on behalf of the Company:

J. W. Healy – Counsel

R. S. Finegan – Labour Relations Officer

G. M. Edgar – District Superintendent Vancouver

And on behalf of the Union:

A. E. Golden – Counsel

R. A. Tomlinson – General Chairman

C. G. Keenan – Assistant General Chairman

A hearing in this matter was held at Toronto, Ontario on March 12th, 1962.

The Union submitted the following as the issues to be determined by the Board:

The Company agreed that Issue Number 1 was properly before the Board but raised a preliminary objection to Issue Number 2, on the grounds the Company only expected and was prepared to meet the case respecting the Equipment Maintainers and not the District Equipment Maintainers. The chairman at least is of the opinion the preliminary objection was not well taken. The letters from the Union outlining the Grievance were in broad enough terms to include D.E.M.’s, e.g. "… matter of travelling-time for employees to attend training courses." It is true there were no D.E.M.’s in the list of particulars sent to the Company by the Union but the Company knew D.E.M.’s had attended the course. Mr. Tomlinson’s letter dated May 24th, 1961, stated, "In other words, if it is necessary for an employee to travel on rest days to reach the point of training the overtime provisions of the Agreement should apply.

"Also, when required to travel outside of regularly assigned hours between 8:00 a.m. and 11:00 p.m. be paid at pro rata rates for time occupied in travelling", which should have been sufficient to alert Management that the D.E.M.’s were included. Mr. Vuckets also testified he had complained to the Company that he should be paid time and one half his regular rate for travelling-time on the Sundays. However, in view of our decision on the interpretation of the facts and the Agreement, it is not necessary to make a ruling on the preliminary objection.

In this Grievance, (under Issue 1) Mr. S. Mazur, an Equipment Maintainer, stationed at Winnipeg is claiming under Article 16 Clause 2 of the Agreement to be paid at pro rata rates for such of his time occupied in travelling between 8:00 a.m. and 11:00 p.m. which fell outside his regularly assigned hours, on his return home in May 1961 from attending a training course in Toronto, provided by the Company where he received training and instruction on the Ferranti-Packard Reservec equipment, recently installed by T.C.A. and which equipment the Company has undertaken to maintain. Mr. Mazur was paid this travelling time from Winnipeg to Toronto, the payment of which the Company says was in error. Mr. Mazur left Toronto on May 5, 1961 at 6 p.m. and arrived in Winnipeg on May 6th, 1961 at 11 p.m. His regularly assigned hours being 8 - 4:30 p.m., the Union claim is for 20 hours at $2.21 which is $44.20. Mr. Mazur also underwent training on A.S.R. equipment in Chicago on a course provided by the Company in March 1960 but for the purposes of this award, it is sufficient if we consider the Toronto trip.

Also in this Grievance, (Issue 2) Mr. C. Vuckets, a District Equipment Maintainer, stationed at Regina, is claiming under Article 12 Clause 7 to be paid time and one half of the straight time rate of a District Equipment Maintainer for all time spent by him travelling on his rest day (Sunday) to attend the Ferranti-Packard course in Toronto in July 1961. Mr. Vuckets travelled for 9 hours on a Sunday going to Toronto, arriving there at 9 p.m. and on his return to Regina, was on the train all day Sunday (24 hours). His claim therefore is for 33 hours at time and one-half.

The provisions of the Collective Agreement referred to by counsel or discussed in the exchange of views by members of the Board are:

There is no difference in the work of an equipment Maintainer and a District Equipment Maintainer. The difference in the two jobs is that the D.E.M. travels through a district or farther to do his work while the Equipment Maintainer is usually confined to a city or a fixed location.

It was explained to the Board that there are two types of training courses provided by the Company. The first type is for additional staff or advancement and for this training, notices inviting applications are issued. If an employee passes a prescribed examination, he is provided the opportunity of training. Under this type of training, the employee receives straight time pay - no travel time or expenses except a CNR pass for rail travel. The second type of training, and the training involved in this Grievance is for refresher courses in the employees own classification and for training on new equipment where no promotion is involved. With the second type of training, the Company pays straight time and expenses but no travel time. Mazur received travelling time on his trip to Toronto on instructions from Mr. Gottfred, the District Superintendent but this was the only occasion it had been paid according to the evidence before the Board. The evidence was conclusive that travelling time had never been paid to either D.E.M.’s or E.M.’s attending courses.

Before turning to the Agreement to ascertain if there is any provision to support the payment of travelling time, we will consider the evidence and the Agreement with respect to the question as to whether it was compulsory for Messrs. Mazur and Vuckets to attend the course in Toronto. The Union argued it was compulsory for the Maintainers to take the training courses and that their assignment to the courses was in the same category as a work assignment in that the employee had no choice but to attend.

The Agreement does not state it is mandatory for employees to take training. Article 5 is in this language, "… the Company will provide the necessary facilities and instructions to enable such employees as are designated by the Company to become proficient" and "The Company shall decide the nature and period of training that will be made available to employees …" (The underlining is ours) The last sentence of Article 5 requires the Company to select on the basis of seniority if qualifications are sufficient. To repeat, there is nothing in Article 5 which states an employee must attend a training course.

The evidence too in our view supports the claim of the Company that employees were not forced to go to Toronto. Copies of letters addressed to Managers, dated March 7th, 1961 (Ex. 1 and Ex. 2) sent by Mr. Gottfred to sixteen employees, including Mazur and Vuckets, commenced, "The following employees are being invited to attend a two weeks training course at Toronto on the new Ferranti-Packard T.C.A. Reservation System equipment". Mr. Mazur said he considered obliged to go as part of his duties. On cross-examination, he agreed he would be at a disadvantage if he did not take the course and ended by saying, "I felt I should go." Mr. Vuckets testified he received Ex. 2 and said the question of not attending the course did not cross his mind. Vuckets stated he went on that course because he wanted to better his knowledge and pursuant to Article V of the Agreement.

He agreed that no one in Management had told him he had to take the course. Four Equipment Maintainers in the Pacific District, including Mr. H.R. Davis, the District Chairman of the Union, advised Mr. Edgar the Superintendent, on April 10th 1961 by letter that they would "Be unable to accept the invitation to attend the T.C.A. Ferranti course in Toronto unless the Company advised by letter that travelling time would be paid". Mr. Davis and the other three maintainers were interviewed individually by Mr. Edgar who urged them to reconsider their position. Mr. Edgar told them that if they did not take the training it would be offered to junior men which would place their seniority in jeopardy. At the hearing, Mr. Edgar said the Company either had to train employees or hire new qualified personnel or abandon its contract with T.C.A. to maintain the equipment. Mr. Edgar testified there was no mention of dismissal or any disciplinary action but that he strongly urged the four employees not to get themselves in a position where they would lose their seniority. Mr. Davis asked Mr. Edgar "To make it an order" but Edgar said he would not give such an order. The men later decided to take the training, Davis stating it was impossible to hold out without full Union support which he did not consider he had.

The Union argued that the following language in Mr. Gottfred’s letters of May 2nd, 1961 (Ex. 2) and May 25th 1961 (ex. 3) indicated that the Equipment Maintainers were being ordered to take the training course in Toronto:

We do not think the use of "Necessity" and of "Assigned" advances the Union’s case because there is no dispute regarding the "Necessity" for training some employees or persons or the fact that once an employee agrees to take the course, that he is "Assigned". We consider "Required" is strong language indicating compulsion. The use of "C. Vuckets must report" in the telegram (Ex. 6) dated July 6, 1961 from Gottfred, also emphasized by the Union viewed in the proper context is that Vuckets who had agreed to attend the course must report on a certain date even if relief for him were not obtainable. The Union also relied on the wording of a telegram to Mr. Edgar from Mr. Prentice the Regional Manager, outlining the course to be followed in dealing with the four Maintainers in the Pacific District and using such language as "Interference with management rights" and Their assurance of co-operation and full adherence to company instructions in future". Mr. Edgar was instructed to document the interviews with the four men and place it on the employees’ records. The telegram stipulated that no threats or intimidation of any kind should be used.

It is our conclusion on all this evidence that it was not compulsory for Mazur and Vuckets to take the course in Toronto. The use of the verb "Required" in Mr. Gottfred’s letter was not accurate in view of the rest of the evidence. In the light of all the other evidence, we accept the explanation of the Company for Mr. Prentice’s telegram, namely, that first, he was concerned regarding the fact the four employees had taken concerted action to enforce their demands and secondly he was convinced the four men made an unwise decision from their own point of view in not taking the training. Undoubtedly it was in the interests of the Company for the men to become qualified on the T.C.A. equipment but it was also decidedly in the interests of Mazur and Vuckets to attend for the same reason it is in the interests of any person in any line of business or profession to keep abreast of his calling. We see no significance in Mr. Prentice instructing Edgar to place the interviews on the employees’ records.

This course would seem wise to remind the employee at some future date he had been given the chance to acquire the training as per the provisions of Article 5. We are convinced if Mazur and Vuckets had refused to attend the course in Toronto that the Company could not have taken disciplinary action against then. While pressure was exerted upon the four men in the Pacific District there was no suggestion of disciplinary action during the considerable period of time between when the Company was informed they would not take the course and when they changed their minds.

We turn now to consider what authority, if any, is in the Agreement to support a claim for travelling time. Before doing so, it should be noted again that the Union relied substantially on the fact attendance at the training courses was compulsory, that attendance was a mandatory part of the employee’s contract of service. The Union did not claim or suggest that travelling-time should be paid to employees under Type I training; in fact it is our understanding that the Union admitted that travelling time should not be paid to employees taking Type I training. It may be then that our decision that attendance was not compulsory under Type II training, is sufficient from the Union’s point of view to dispose of this Grievance. However, the position of the Union may be that whether or not attendance at the course was compulsory, an employee attending the course is performing in the course of his employment and entitled to the payment of travelling time.

As far as the Agreement is concerned, the Union bases its case for paying the Equipment Maintainers on Cl. 2 of Art. 16, - "Employees … performing service … be paid" and for the payment of the District Equipment Maintainers on Cl. 7 of Art. 12. "… Service on such assigned rest day will be paid …". The Union argues that Performing service" in Cl. 2 Art 16 and "Service" in Cl. 7 Art. 12 are wide enough to include an employee on a training course; that use of "Service" in these two clauses is analogous to "Course of employment". The Company’s position is that "Performing service" means "Performing work" and that "Service" in Cl. 7 of Art. 12 means "Work". The Company submits if it had been the intention of the parties that trainees should be paid training time, a provision would have been included under Article 5, "Training".

Considering first the Equipment Maintainers, is "Service" in "Performing service" in Cl. 2 Art. 16 analogous to "Course of employment" as argued by the Union?

The word "Service" has a great variety of meanings including many which certainly have nothing to do with this grievance such as a meeting of a congregation for worship, the single act of serving in tennis and a set of dishes. In the Collective Agreements, it seems that the parties have used "Service" to denote three different meanings (excluding Art. 16, Cl. 2 and Art. 12 Cl. 7 for the time being) as follows:

It is to be noted that in 4 (f) the verb "Perform" is used with "Service", the only clause other than Cl. 2 of Art. 16 in which "Perform" and "Service" occur. From reading 4 (f) and 4 (g) it seems clear that "Service" in 4 (f) means, "Work".

Moving now to the problem of interpreting what the parties meant by "Employees … performing service …" in Art. 16 Cl. 2, it seems probable that "Service" means "Work" because of the use of the word "Performing" with "Service". If the parties had intended "Service to mean "In the course of employment" the parties would have used language to this effect, "Employees performing in the service of the Company …". There is some weight too in the company’s argument that the clause "And during the qualifying period such employees will be compensated at the pro rata rate of their regularly assigned positions "in Art. 5 is not necessary if attending a training course is "Performing service"; that the parties, believing the taking of training was not "Performing service" considered it necessary to include the payment of wages for employees on training courses in Art. 5; that they would have included a provision under Art. 5 if it had been the intention to pay travelling time; that Art. 5 is the sole governing article for training; that in this connection, it is customary to pay travelling expenses as is done by the Company here, outside the terms of the Agreement. Another consideration is that if the Union admits travelling time should not be paid under the Agreement to employees taking Type I training under Art. 5, we are certain if it had been the intention to pay travelling time to employees taking Type II training the parties would have spelled out the difference in Art. 5 between the two types of training and the different monetary factors involved.

We have considered the argument of the Union that travelling expenses presently being paid for Type II training, is being paid under Cl. 1 of Art. 16 because there is no other authority in the Agreement for paying travelling expenses and therefore it is reasonable to infer that Cl. 2 also applies to employees taking Type II training. Even if "Duties" in Cl. 1 of Art. 16 be wide enough to cover an employee on a training course, this argument is not decisive to show the meaning of "Service" in Cl. 2. While we are of the opinion that the parties probably meant "Work" when they used "Service" we believe that in any event the best possible case which can be stated for the Union is that the meaning of "Service" in Cl. 2 of Art. 16 is either "In the course of employment" or "Work done for the employer". We do not believe that attending the training course under review was "Work done for the employer". The language being ambiguous, evidence of past practice that travelling time has not been paid, is admissible which defeats the Grievance.

Counsel for the Union cited Consolidated Mining and Smelting Company of Canada and William Murdoch and Another 1929 S.C.R. 141 and St. Helens Colliery Company Limited and Hewitson 1924 A.C. 59. The question before the Court in these two cases was whether the employee was acting in the course of his employment. That is not the issue here. We agree that after Mazur accepted the invitation to attend and was assigned to a course, he was acting in the course of his employment when he travelled to take the course and when he actually took the training. He was then under the control of the Company. But the question before us is whether the contract stipulates that Mazur should be paid travelling time in the course of this kind of employment.

Directing our attention now to the D.E.M.’s and the interpretation of "Service" in Cl. 7 of Art. 12, it seems probable that "Service" has been used to mean "Work". Cl. 6 sets out the payment for employees other than D.E.M.’s who are required to work on rest days. Cl. 7 stipulates the payment for D.E.M.’s. Cls. 6 and 7 use "Work" and "Service" interchangeably. Cl. 6 states, "Employees, if required to work on regularly assigned rest days … shall be paid …"; Cl. 7 states, service on such assigned rest day will be paid …". "Also, elsewhere in the Agreement, as already set out, the parties have used "Service" as being analogous to "Work". (Art. 10, Art. 11 Cl. 1 Art. 12, 4 (f), 4 (g)4 (e). The D.E.M.’s on their way to a training course were in the service of the Company in but they were not performing service as service is used in several instances in Article 12 and in other articles of the Agreement.

Again considering the Union case in its most favourable light, "Service" in Cl. 7 of Art. 12 may mean Work service or "Employment service". The language is not sufficiently clear to support a claim for a monetary benefit which the evidence showed, the practice was not to pay. The Union asks what is the difference between an employee travelling for the purpose of working on equipment and travelling for the purpose of attending a course so that he might be competent to work on equipment. The answer is that the Agreement sets out that the D.E.M. is to be paid if he works on his rest day and the Company has interpreted, quite correctly in our view, that a D.E.M. travelling on his rest day to a work assignment is in the same category as a D.E.M. working on his rest day. On the other hand, there is no provision in the Agreement to pay a D.E.M. travelling on his rest day to a training course.

The payment of travelling-time from Winnipeg to Toronto to Mazur on the instructions of the District Superintendent does not hurt the Company’s case. Mr. Gottfred was not interpreting the Agreement for the Company outside his district and in any event it is open to the Company to prove the decision was made in error. If Mazur had been willing to testify he would not have gone to Toronto unless he was paid travelling time both ways, he would be entitled to collect for the return trip on the undertaking of Gottfred but this would not change our decision that the Agreement does not contain a provision to support a claim for travelling time.

The Grievance therefore fails. Messrs. Mazur and Vuckets were not entitled to be paid as claimed by them.

Dated at Owen Sound this 25th day of April 1962.

Chairman Company Nominee

I have had the opportunity of reading the majority award of my colleagues on the Board and I regret that I must dissent from their findings.

With great respect to the opinion of the majority of he Board, it is my view that certain contradictions appear therein which do not support the conclusions reached.

It is my opinion, that the evidence supports the view that the Company made every effort to impress upon employees concerned that taking training courses was an assignment which is not to be refused unless the employee is prepared to subject himself to discipline. The clear language of Mr. Gottfred’s letters of May 2 and May 25, 1961 appearing as Ex. 2 and 3 and referred to in the majority award indicate compulsion. The conversation between Mr. G. Keenan, Vice-Chairman of the Union and Mr. M.L. Prentice, Western District Manager of the Company culminating in the direction of the Company that the senior man of those refusing to take training (reference to the refusal of employees in Vancouver to proceed to training course in Toronto) would face "dismissal from the Company’s employ" is sufficient, in my judgement, to indicate the compulsory nature of the Company’s instructions. This evidence by Mr. Keenan was not challenged by the Company, since Mr. Prentice did not give any evidence.

Be that as it may, however, I am prepared to accept the finding that the initial decision, to accept or not to accept training, is voluntary on the part of the employee. I am in agreement that it should be optional for the employee to determine whether he will take the training offered to him.

It is at the point where the employee accepts the assignment of taking training that I find myself at cross-roads with my colleagues. The majority award states in part "We do not think the use of "Necessity" and of "Assigned" advances the Union’s case because there is no dispute regarding the "Necessity" for training some employees or persons or the fact that once an employee agrees to take the course, that he is "Assigned".

The two grievors, Messrs: Mazur and Vuckets did agree to take the course. Under all criteria, including the decisions of the majority, they are now on assignment. They are now under the direction of the Company, designated to take training and act under orders. They are instructed to proceed to the location of the training course(in this instance from Winnipeg and Regina respectively to Toronto). They are under instructions to attend the training course.

Since the grievor is now "assigned", and my colleagues agree this to be so, he is now subject to certain contractual provisions, and the Company in turn is subject to certain contractual requirements. In the case of Equipment Maintainers the provisions of Article 16, Clause 2 provide for payment at pro rata rates between the hours of 8:00 a.m. and 11:00 p.m. for performance of service away from regularly assigned headquarters.

Article 16, Clause 2 does not say that such service must be the regular duties, their regular type of work or any such specific and limiting definition. The language used is "performing service" and as the illustrations referred to in the majority award indicate, the word service is used in its broadest sense and also refer to a condition where "work" is being performed. By "work" I refer to the regular duties of the employee in his own classification of work.

If the parties had intended to limit the provisions of Article 16, Clause 2 to "work" this would have been an easy thing to do.

Clearly, the parties intended a broader meaning to apply since they used the word "service" and they also used the word "service" when they speak of "Persons entering the service of the Company".

It is my view the parties clearly intended payment for assigned service other than regularly assigned duties when they constructed the terms of Article 16, Clause 2.

With respect to District Equipment Maintainers Clause 7 of Article 12 is most explicit. This Clause provides:

What could be clearer than this language. If an employee performs service on his rest day, as Vuckets did then he is paid at one and one-half times his straight time rate. When the D.E.M. is assigned to go to a training school, he is performing service in the same manner that a salesman is performing a service while travelling from one location to another, or a guard may be performing service while sitting at his observation post. He is doing what he has been instructed to do by his employer, and he cannot do as he pleases.

It is my view that "performing service" as it is expressed in the language of the agreement clearly includes any assignment given to an employee by the Company, including travelling to a training school.

I would also like to emphasize that the words reported in the majority in the evidence of Mr. Edgar do not in any way attempt to interpret the seniority provisions of the Agreement. This Board is limited to the determination of payment or non-payment of travelling time and is not concerned with, nor empowered to make any determination concerning the application of the seniority provisions of the Agreement.

I would grant the grievances of the employees and direct payment for travelling time as requested therein.

All of which is respectfully submitted.

DATED AT Toronto Ontario, May 15, 1962

Union nominee