AD HOC 78: WK CAMERON - LIVING EXPENSES

AWARD

ISSUES

Is the employee en titled to an allowance for living accommodation for each calendar day that such accommodation is required away from his headquarters?

The Union further included as an issue the matter of mileage allowance from the employee’s headquarters to London, Ontario. However, the Company stated that the mileage allowance could and should be paid and this matter was not in dispute.

The Union claims the task before the Arbitrator is to interpret articles 20.1 and 20.2 which are in dispute. These are:

201. The headquarters of Swing Dispatchers, 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 Movement Directors and Relief Assistant Train Movement Directors will be considered as their headquarters. The 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.

20.2 Such employees will be allowed $6.00 per day expenses for living accommodation for each calendar day that such accommodation is 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.

BACKGROUND AND FACTS

Mr. W.K. Cameron started his employment with the Company as an apprentice telegrapher in 1951. On completion of training, he became a spare operator in the office of the chief dispatcher at London, Ontario until 1957 when he became a second operator. He had this position until November 1971 when he became a swing operator at St. Thomas, Ontario and advanced to second operator at St. Thomas on August 23, 1972. This is his current and permanent assignment.

Mr. Cameron qualified as a relief dispatcher at London in 1965 while he was also an operator. This called for him to be available when needed to work as a dispatcher at London, whenever the need arose for relief work. The bulk of Mr. Cameron’s work time has been spent as a relief dispatcher in London and only rarely has he worked out of St. Thomas, his headquarters. In fact, from November, 1971 until the date of his grievance, March 12, 1973, Mr. Cameron worked only thirty-three days in St. Thomas.

Mr. Cameron’s residence is in London, Ontario. He has occupied this home with his family for at least ten years. The distance between London and St. Thomas is eighteen miles.

On February 28, 1973, the Company denied Cameron’s claim for an expense allowance for each calendar day in the month of February. The claim included rest days on which no work was performed for the Company. The Company’s denial of his claim was based on the fact that no additional expenses were incurred by Cameron for that February period, since he was living at home during the month of February.

UNION POSITION

In its presentation at the arbitration hearing, the Union argued that although similar questions had been the subject matter of previous grievances between the parties, preceding arbitral awards did not preclude bringing the matter up again. But if each case were considered on its merits, cases would be coming up before arbitrators often – an unworkable method of solving this recurring problem. Furthermore, in previous cases, the constraints of article 26.5 of the agreement between the parties had not been taken into account by the arbitrators.

26.5 Disputes arising out of proposed changes in rates of pay, rules or working conditions, modifications in or additions to the scope of this Agreement, are specifically excluded from the jurisdiction of the Arbitrator and he shall have no power to add to or subtract from, or modify any of the terms of this Agreement.

(Union’s emphasis)

The crux of the matter, according to the Union, was what was meant by “living accommodation” in article 20.2. One arbitrator rules that living accommodation meant lodging only, while another award stated that living accommodations could include expenses incurring in obtaining meals, light lunches, coffee, rental accommodation, etc.

Thus the Union seeks in the instant case a ruling from the Arbitrator based on the language of the agreement which would specify that an allowance be paid whenever an employee is required to work away from his headquarters.

Mr. Cameron holds a regular position at the home station of St. Thomas. His headquarters is St. Thomas. The Union submitted copies of Company Service Travel Expense Vouchers for Mr. Cameron for the January 1972 to January 1973 period inclusive. They also submitted photocopies of cheque stubs to indicate that the Company had approved and paid Mr. Cameron in reimbursement for those vouchers. Mr. Cameron’s claim for February followed on refusal by an officer of the Company to pay the February claim.

Following the arbitration hearing, the Union submitted to the Arbitrator evidence of similar circumstances of other employees in this bargaining unit. According to the Union, these employees were paid allowances in accordance with the same provisions of the agreement referred to (20) or when the employees worked away from their headquarters. The Union claimed that there were other instances of this practice, but it would be extremely difficult to secure the proof. Time had elapsed and cheque stubs destroyed. Also attached were copies of correspondence containing refusals of the Company to pay allowances where living accommodation was not required, although the employees worked away from his headquarters. Referring to these instances of past practice, the Union maintains that Mr. Cameron is entitled to allowances for work performed while in London, since his headquarters was St. Thomas.

COMPANY POSITION

The Company objects to the Union’s assertion that the living accommodation allowance provided for in article 20.2 is an arbitrary allowance to be paid automatically whenever an employee is required to work at a location away from his headquarters.

The Company bases its case in the Cameron grievance on its interpretation of article 20.2 – that the allowance is payable only whenever the accommodation is “required”. In support of its position, the Company cites two previous awards by Arbitrators Weatherill and Gallagher. Both arbitrators denied similar claims of other employees and in doing so, took as their basis their interpretation of article 20.2 – “employees will be allowed … expenses for living accommodation for each calendar day that such accommodation is required away from such headquarters”.

Since Mr. Cameron incurred no extra expenses while working in London, no commuting was required, his home was maintained at his relief location, where in fact he worked most often, it is the Company’s position that he is not entitled to payment for living accommodation.

FINDINGS

The Union argues compelling that through past practice in similar claims the Company reveals inconsistencies in its practices related to allowances for work away from headquarters. Reference is made to other instances where claims were honoured over a period of time. Evidence was also furnished of the Company’s refusal to pay those claims.

It is impossible to determine exactly what the negotiators of the collective agreement intended, since the agreement is over twenty-five years old. The Union claims that since the allowance was always paid in the past, that intent and language are the same and that allowance be paid when an employee is required to work away from his headquarters. Furthermore, the collective agreement does not specify that an employee must reside at his headquarters location. It is not the place of residence that is the clinching factor according to the Union, but the main point is whether he is required to work away from his headquarters.

In the view of the Arbitrator, the situation of Mr. Cameron is the unusual one. It is the normal practice for an employee to live in the area of his headquarters where he works. Therefore, it is not surprising that those who originally wrote the agreement did not write into the agreement a distinction for residence. The implied assumption is that when an employee leaves his headquarters area, he is living away from home and therefore needs to be reimbursed for out-of-pocket expenses or expenses not normally incurred when he has a regular pattern of work and returns to his home in the evening.

Out-of-pocket expenses, therefore, which are not part of the regular requirements of the job, e.g., mileage allowances, lodging, restaurant meals, etc. should be paid in accordance with some recognized equitable scale arrived at through regulation or negotiation, and which may be supported through vouchers or per diem allowances. It is only reasonable to expect that unusual expenses caused by the assignment of the management should be compensated.

To pay allowances for a period when no extra expenses were incurred appears to the Arbitrator to negate the very purpose for which allowances were established in the first place by all companies and other organizations, as well as this one involved in the instant case.

The key controlling words in the agreement are contained in article 20.2 – “Such employees will be allowed $6.00 per day expenses for living accommodation for each calendar day that such accommodation is required away from such headquarters”. (emphasis added) The Arbitrator cannot attach any other interpretation to this section. Both the language in this clause, which is compelling, and the plain meaning seem clear to the Arbitrator. The agreement is the governing document and its intent that employees be reimbursed when accommodation is required is apparent.

Practices in different locations may have altered because of special geographical circumstances and the interpretation of different company officials at various times, but these do not negate either the original purpose or intent of the agreement.

A study of arbitral precedents on the force of past practice indicates that if the underlying basis for the practice changes, management may alter or discontinue the practice even while the agreement is in effect. But here, in the instant case, even the underlying basis for the practice has not changed. This is reimbursement of out-of-pocket expenses. By continuing to pay mileage allowance to Cameron, the Company recognized this obligation to pay out-of-pocket expenses, but not compensate for accommodation when not required.

The compelling phrase which is over-riding in this dispute is the one “accommodation is required” in article 20.2. There is little purpose to be served in searching for hidden meanings. The words are precise and unambiguous, and should be taken in their ordinary meaning. The Arbitrator is unable to accept that accommodation is required for a distance of eighteen miles. The Arbitrator can only conclude, therefore, that the intent of article 20.1 is clarified in 20.2 as stated above.

The Arbitrator has taken article 26.5 into account and confined herself to interpretation of the agreement. The terms of the agreement have not been added to or subtracted from or modified.

The grievance is dismissed

DATED December 6, 1973. (signed) F. BAIRSTOW

ARBITRATOR