AH – 58A
IN THE MATTER OF AN ARBITRATION
BETWEEN:
Canadian National Railway Company
(the "Company")
AND
Transportation - Communication Division (BRAC)
(The "Union")
IN THE MATTER OF THE GRIEVANCE OF R. J. Silver
SOLE ARBITRATOR: J. F. W. Weatherill
There appeared on behalf of the Company:
W. S. Hodges
And on behalf of the Union:
F. M. Sheahan
A hearing in this matter was held at Montreal on January 14, 1970.
AWARD
This is a claim by Mr. R.J. Silver, a spare operator, living in metropolitan Toronto, for expenses of $5.50 per day for living allowance for the period July 7 - 12, 1969.
As part of his duties, Mr. Silver was required to travel outside the boundaries of Metropolitan Toronto, and on the days in question he worked either at Concord or at Richmond Hill, Ontario. Both of these communities are located outside of Metropolitan Toronto, although a very short distance from it. In each case he drove to and from is home in Scarborough, part of Metropolitan Toronto, to work, a round trip distance of 22 and 28 miles respectively. He returned home each day. It is the union’s contention that Mr. Silver was entitled to payment of $3.50 per day for each day he was at Concord or Richmond Hill, pursuant to article 20(a) of the collective agreement. That article is as follows:
Article 20(a)
The headquarters of swing dispatchers, swing train controllers, swing traffic supervisors, swing train movement directors, swing assistant train movement directors, swing operators and regular relief agents will be designated by the chief dispatcher. The home station of relief dispatchers, relief train controllers, relief traffic supervisors, relief train movement directors and relief assistant train movement directors will be considered as their headquarters of a spare operator shall be the office of the chief dispatcher unless the operator resides permanently at a location on the chief dispatcher’s territory in which case such location shall be his headquarters. If a spare operator does not reside at an occupied station on the chief dispatcher’s territory the occupied station on such territory closest to his residence shall be his headquarters.
Such employees will be allowed $3.50 per day expenses for living accommodation for each calendar day that such accommodation in required away from such headquarters. However, a spare operator who relieves at a point within the same metropolitan area as his headquarters shall not be entitled to any allowance.
Swing dispatchers, swing train controllers, swing traffic supervisors, swing train movement directors and swing assistant train movement directors working between two points will, upon production of receipts, be allowed travelling expenses, meals and berths between offices.
Relief dispatchers assigned, by bulletin to temporary new positions of sixty (60) days or more in accordance with their seniority as provided by Article 26(b) will be allowed $3.50 per day expenses for living required away from their headquarters. This rule does not apply to dispatchers whose seniority entitles them to hold a position as a permanent trick dispatcher on the district.
Note: A dispatcher whose seniority does not entitle him to hold a position as a permanent trick dispatcher will be considered as a relief dispatcher within the meaning of this rule.
The material portion of article 20(a) is the second paragraph. Mr. Silver was relieving at points outside the same metropolitan area his headquarters, and would be entitled for living accommodation, for each day that such accommodation is required. I am unable to respect the union’s contention that "accommodation" should be construed so broadly as to include such matters as the provision of food or transport. There may be same contexts in which the word should be given that construction, but in my view that is not the meaning intended by this provision. In my opinion, the word is here used to refer to lodging, and the grievor would be entitled to the $3.50 allowance in respect of that expense, where lodging is required. The question as to whether such accommodation is "required" is to be determined on the basis of whether it is reasonably required, regardless of whether or not the employee actually takes advantage of it. Thus, in the instant case, The fact that the grievor returned to his home each day would not deprive him of his right to the $3.50 allowance, if he has otherwise entitled to it. This is the interpretation that the company has put on the provision, and in my view, it is correct.
Where the grievor was required to work in Hamilton, a distance of some 40 miles from Metropolitan Toronto, the allowance was paid, although on those occasions too the grievor chose to return home after work. The company states that as a rule of thumb for the application of article 20(a), it has paid the allowance in case where the employee is required to travel 20 or 25 miles from his headquarters. It is not necessary in this case to determine whether this rule of thump is a proper one, and I do not so. It may be noted, however, that the rule does not seem unreasonable, although its application could vary with the circumstances, which may well differ in different areas of the country.
In interpreting the second paragraph of article 20(a) it is important to note that the allowance is not payable whenever an employee must work away from his headquarters, or his own metropolitan area. but rather that it is payable whenever the accommodation is "required". Food and transport of course, are always required, and it would not be reasonable to consider that this contingency referred to them. As I have indicated, the allowance is payable where such accommodation is "required", whether or not it is used.
In the instant case, having regard to the distance involved, its proximity to the metropolitan area to the grievor’s home, there is nothing to suggest that accommodation was in any way required. The allowance is not expressed as an automatic payment, and there is nothing in the circumstances to call for payment in this case. It may be that the grievor might have claimed a transportation allowance, but that it is important to observe, is another matter.
For the foregoing reasons the grievance must be dismissed.
DATED AT TORONTO, this 28th day of January, 1970.
(signed) J. F. W. Weatherill