AH – 77
IN THE MATTER OF AN ARBITRATION
CANADIAN NATIONAL RAILWAY COMPANY
CANADIAN TELECOMMUNICATIONS UNION
DIVISION NO. 43 OF THE UNITED TELEGRAPH WORKERS
GRIEVANCES RE E. NAZARUK, G.P. LIVESEY, D. LANGE
ARBITRATION BOARD: Howard D. Brown – Chairman
S. E. Dinsdale, Q.C. – Company Nominee
C. W. Pethick – Union Nominee
There appeared on behalf of the Company:
J. W. Healy, Q.C. – Counsel
M. Sereda – Labour Relations Officer
N. Landon – Supervisor
And on behalf of the Union:
J. Sack – Counsel
C. H. Hammett – Union President
A hearing in this matter was held at Montreal on May 14, 1981.
The Company and the Union are parties to a collective agreement under the terms of which a grievance was filed by the above noted employees of the Company on October 10th, 1972, as follows:
References: Expenses at Dome;
According to Company circular dated 20 June 1972, we are not entitled to lunches at Dome. We feel this is discrimination and contrary to Union Agreement, which states anyone away from Headquarters is entitled to actual reasonable expenses.
Our Headquarters according to Bulletins is Kamloops and to our knowledge has never been changed. We feel this condition should be checked into and corrected as soon as possible.
The Company’s reply of October 13th, 1972 is as follows:
E. Nazaruk, Senior Radio Technician
G. P. Livesey, Radio Technician
D. Lange, Radio Technician
Kamloops Jct., B.C.
Received your letter of October 10-72 in regard to lunch expenses at Dome.
The Company’s opinion is, that Dome is your regular place of employment. Therefore, you are not entitled to expenses under the Union agreement. This was outlined to you by circular dated June 20-72.
The circular referred to in the above letters sets out in the preamble:
Subject, Article 19, clause 1 … In order to conform to system policy the following will apply effective 01 July 1972 to expenses claimed on Company service by employees within the scope of our agreement with the C.T.U., whether such expenses are claimed under Article 19, Clause 1 or under Article 12, Clause 9 …
This was brought to the grievors’ attention by memo of the same date as follows:
Subject – Article 19, Clause 1
It has been brought to attention that in the past certain expenses have been claimed and paid which are not in accordance with our collective agreement with the C.T.U. Specifically reference is made to payments to employees who carry their lunches to their regular place of employment at Dome or Mulhurst microwave terminals, and claim the cost on their expense account.
In compliance with the policy directive attached payments for lunches carried to your regular place of employment will be discontinued effective 01 July 1972. Reasonable expenses incurred when assigned to duties at other cities on your maintenance district will continue to be paid when claimed on expense voucher Form 3140 prepared in accordance with current instructions.
Article 19, clause 1 of the collective agreement is:
19(1) Employees assigned to duties (other than by bulletin or when assigned to training) away from their regular places of employment will be allowed actual reasonable expenses incurred and shall, if required, be advanced a reasonable amount of expense money.
The grievance was submitted to arbitration and came on for hearing as indicated. The parties agreed that the Board has jurisdiction to deal with the issue.
It is the grievors’ position that they are headquartered at Kamloops Junction as radio technicians as set out on a district bulletin dated January 10, 1972, for Mr. Lange:
For the position of Radio Technician Grade 5 Kamloops Jct. B.C. is hereby awarded to D. Lange, Blue River, B.C.
And similarly in 1970 to the other grievors so that when they work in places away from Kamloops Jct., they are entitled to expense money for lunch. The Company has disallowed such claims following its directive in July 1972 although it had been the previous practice to allow the grievors $1.00 allowance for lunches made at home and $2.25 for a restaurant meal. The specific claim related to the disallowance of such expenses while they are working at Dome. The Company takes the position that Dome is the grievors’ regular place of employment and are thus not entitled to such expenses under 19(1).
Mr. Livesey has been employed with the Company for four years and is a radio technician working on microwave sets. In 1970 he moved from Blue river to Kamloops Jct. pursuant to the bulletin referred to above and has been there since, attending to the maintenance and repair of microwave radio sites. In 1972 Kamloops Jct. was outside of the city of Kamloops limit where he lives. He receives directions daily from Kamloops Jct. as to his work assignments for that day. The microwave sites are within an area of 100 miles from Kamloops and he could be directed to go to any one of them. Most of his time however, is spent at Dome which is a microwave terminal on the Trans Canada system and is manned each day. The other sites are not so manned but require maintenance to the extent of two days every six weeks at each of the other sites. Very rarely would he be required to work at Kamloops Jct. Prior to July 1972 he said that they had been paid for lunches when they went to work at Dome as well as the other sites which are at approximately thirty mile intervals from Dome. That site is 9-1/2 miles from the CN Express Office at Kamloops and in the winter the trip takes two and one-half hours return, but in the summer less than half that time. He must check in every day and get directions and mail at the express office or by radio before he gets there, but he does not automatically go directly to Dome. There is a testing and radio site at Kamloops Jct. and he does work there sometimes and when he does he does home for lunch. The senior radio technician could give him directions to go to Dome directly and if so, he would not need to go to Kamloops Jct., or to the express office, if he received the instructions by radio. If there was no trouble elsewhere he would go to Dome. The senior radio technician is located at Kamloops with his headquarters at the Junction. Mr. Livesey can be reached by radio in his vehicle so that while he sets out for the express office each day, he could be otherwise directed by radio. He agreed that he spent more of his time at Dome than any other place.
Mr. Landon was, at the time of the grievance, a general radio plant supervisor and said that Dome was as of May 1st, 1973, included within the boundary of the city of Kamloops. The radio technician position held by the grievors was created in 1963 to staff and maintain other systems as required. Dome is staffed each day by one or two people and there is only one assigned to Kamloops Jct. Initially the technicians checked in at the junction and got mail there, but the practice changed for one of them to go to the express office at Kamloops and it is only occasionally necessary for any of them to go to the junction. He agreed that there are no scheduled days for Dome but it is, along with the other sites, by assignment. He had been responsible for approving expense claims and had approved these expenses from 1970 to 1972. There are no job descriptions for these positions. His instructions would go to the senior radio technician to take care of the microwave sites on a routine basis and it was up to him to assign the work required to the technicians.
It is the Union’s position that the grievors’ headquarters is Kamloops Jct. and at the time of the grievance Dome was away from their headquarters. It was submitted that the phrase in article 19, “regular places of employment” is synonymous with “headquarters”. Alternatively, it was argued that Kamloops was their regular place of employment because they had to report there each day. The Company, on the other hand, submitted, firstly, that he grievors’ duties are assigned by bulletin and therefore article 19 does not apply and, secondly, that the grievors do not work in Kamloops which is not their regular place of employment but was Dome, where the grievors spend more than half their time. Further, it was submitted that expenses as claimed were not reasonable expenses incurred. It was pointed out that if the headquarters and work location were synonymous then the question in any event became academic after May 1973, when Dome became part of the city of Kamloops.
We are dealing with a grievance as of October 10th, 1972 and it is the situation as it then was which must determine the issue before us and at that time Dome was not included within the municipal boundaries of Kamloops. The issue is whether at that time the grievors were entitled to “actual reasonable expenses” within the meaning of article 19, clause 1 and specifically to their claims for lunch expenses while working at Dome. The bulletin awarding their positions to the grievors specified Kamloops Jct., which is then their headquarters and location of employment. The evidence discloses that the duties at Dome were assigned by the senior radio technician each day and cannot be found to be assigned by bulletin. Therefore, we are satisfied that the provisions of article 19(1) apply. Is then Dome away from their regular place of employment for this purpose? The grievors were assigned by bulletin to Kamloops Jct. and received work instructions from there by radio as well as the express office at Kamloops. For the majority of their time, they were instructed to go to Dome and would work at that location but also worked at the other sits including Kamloops Jct. from where they were directed. Article 19 applies to “service away from Headquarters” and the parties have then referred to “regular place of employment” which in the context of this provision we find to be synonymous. It is interesting to note the definition of “headquarters” in the Oxford Universal Dictionary:
… the place whence commanders orders are issued; chief place of residence, meeting or business; a centre of operations.
Webster’s New Collegiate Dictionary refers to it as “the administrative centre of an enterprise”. While Dome may be found to be the main work are for the grievors it canto be found to be a “headquarters” within the above definitions. The parties have directed their attention in this provision to the latter term which must also be the regular place of employment which conclusion is consistent with establishing Kamloops Jct., or Kamloops as the administrative centre. They were bulletined to that location and their work orders emanate from there. They work at Dome regularly but that is by way of assignment each day and cannot be found as their regular place of employment which is distinguished for a place where they perform most of their work. Had they reported to Dome automatically as well as performing most of their work there and received instructions from there to go to the other sites then Dome could be their regular place of employment and headquarters for this purpose. There is no question that by bulletin the grievors’ headquarters is Kamloops Jct. We find that designation in article 19(1) has the same meaning as “their regular place of employment” which then is Kamloops Jct. and not Dome.
The evidence is that the grievors are required to take lunches to Dome. Prior to 1972 the supervisor approved such expenses at $1.00 when the lunch is made at home and $2.25 when made in a restaurant. In the Company’s bulletin of June 20th, 1972, receipts are only required for meals, the cost of which exceed the above figures which gives an indication that those expenses are considered to be at least reasonable and the Company had obviously in the past considered them reasonable as they had been paid. While we need not rely on past practices to determine the effect of article 19(1), the practice of payment of those amounts for the work involved at Dome can be considered in assessing whether the expense are actual and reasonable. In any event we are satisfied on the evidence that such charges are reasonable claims by the grievors.
For the above reasons we find that the Company did breach the provisions of article 19(1) of the collective agreement by failing to pay their expenses as claimed for lunches when they were assigned to work at Dome. Therefore we find that the grievance succeeds.
DATED AT TORONTO this 25th day of March 1974
(signed) H. D. BROWN (DISSENT) S. E. DINSDALE
CHAIRMAN COMPANY NOMINEE
(CONCUR) C. W. PETHICK