AH – 80
IN THE MATTER OF AN ARBITRATION
CANADIAN NATIONAL RAILWAY COMPANY
CANADIAN TELECOMMUNICATIONS UNION
DIVISION NO. 43 OF THE UNITED TELEGRAPH WORKERS
GRIEVANCE RE G. IVANY – PAY FOR TRAVEL TIME
BOARD OF ARBITRATION: J. D. O’Shea, Q.C. Chairman
C. W. Pethick Union Nominee
S. E. Dinsdale, Q.C. Company Nominee
There appeared on behalf of the Company:
J. W. Healy – Counsel
R. S. Finegan
And on behalf of the Union:
J. Sack – Counsel
C. H. Hammett – President
G. Ivany – Grievor
A hearing in this matter was held at Toronto, on January 15, 1974.
This matter arose and came on for hearing under the provisions of the collective agreement between the parties which remain in effect until December 31st, 1972. The relevant provisions of the collective agreement read as follows:
Article 12 – Training
Clause 1 The company shall select the employee to be trained and will provide training facilities and instruction to the number necessary to meet staff requirements resulting from business demands, technological developments, promotion, job security, etc.
Clause 2 When training is planned to qualify additional employees for an classification, a notice of training will be issued to all seniority groupings in the District, specifying the qualifications required and the duration and location of the course. Qualified employees will be selected on the basis of general district seniority.
Clause 9 Employees having established seniority who are selected for training will, if required to travel from their headquarters to the training location, suffer no loss of wages while in transit. They will not be paid overtime for travel required outside normal working hours nor on rest days. Reasonable travel expense will be allowed. During the training period, they will be provided hotel accommodation arranged by the Company or allowed, in lieu thereof, to claim an amount equivalent to such cost for accommodation of their own choice and will be reimbursed for other reasonable expenses. If requested, they shall be advanced a reasonable amount of expense money.
Article 19 – Service Away From Headquarters
Clause 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.
Clause 2 Employees will be paid at pro rata rate for time travelled outside regularly assigned hours of duty, on order of the Company, except that compensation will not be paid for time between the hours of 11:00 p.m. and the regular starting time when sleeping accommodation is provided. Employees must make every effort to obtain berth accommodation.
The events which led to the filing of the grievance in this matter are not in dispute. The Company caused the following notice to be posted on August 4th, 1972.
NOTICE NUMBER 4
It is proposed to train employees for three (3) positions of radio technician. Applications from all interested employees will be received up to and including August 14, 1972. Training will be conducted in Montreal, Quebec, for a period of approximately 12 weeks to commence in September 1972. All prospective students will be required, if they have not already done so, to pass a mechanical comprehension test and the Electrical Theory Examination. They must also be able to pass the vision, colour sense and hearing examination and drive a company-owned vehicle.
On August 13th, 1972, G. Ivany, the grievor, sent a telex message to the Company which reads as follows:
With reference to notice Number 4 covering training for radio technician please accept this as my application for same stop due to being on vacation just saw notice date.
The Company agreed to accept the grievor’s late application and notified the grievor on September 5th, 1972 that he was to report to Montreal to write a test on September 6th, 1972.
The grievor was scheduled to work on his regular shift at Chandler, Quebec from 8:30 a.m. to 5:00 p.m. on September 5th. At 3:00 p.m. the grievor left by train for Montreal. The six hundred and twenty-five mile train trip lasted from 3:00 p.m. on September 5th to 8:00 a.m. on September 6th. From 11:00 p.m. on September 5th to 8:00 a.m. the following day the grievor had sleeping accommodation on the train. On September 6th the grievor wrote the test in Montreal in an attempt to qualify for training as a radio technician. The test was a multiple choice written test. The grievor failed to pass the test and therefore failed to qualify for the full training course.
The grievor left Montreal by train at 11:00 p.m. on September 6th and arrived in Chandler on September 7th. From 11:00 p.m. September 6th to 8:00 the following day the grievor had sleeping accommodation on the train. The grievor was paid his regular wages for September 5th, 6th and September 7th.
In addition to receiving his regular wages on September 5th, 6th and 7th, the grievor also received his expenses for the trip to Montreal. Initially the grievor also received pro rata pay for six hours from 5:00 p.m. to 11:00 p.m. on September 5th and a further six hours’ pay from 5:00 p.m. to 11:00 p.m. on September 6th, which was the time spent prior to receiving sleeping accommodation on those days. However, the Company later deducted the twelve hours’ additional pay in the amount of %58.81 from the grievor’s wages.
The Union wrote to the Company on January 4th, 1973 as follows:
This is in reference to the deduction of twelve hours at pro rata rate of pay period 23rd from the pay cheque of Mr. G. Ivany, General Technician, Chandler, Que., your file 5065-139
The Union is grieving because the Company should not have deducted the amount of $58.81 from Mr. Ivany’s pay cheque, violating article 19, clause 2 of our Collective Agreement 8.1.
Will you please review the action taken in the above instance, and in order to satisfy the grievor, Mr. Ivany must be reimbursed.
Company replied to the letter on January 11th, 1973 as follows:
This will have reference to your letter dated January 4, 1973, relative to a deduction from a pay cheque of Mr. G. Ivany, General Technician, Chandler, Quebec in the amount of $58.81 and your request that he be reimbursed this amount of money, claiming a violation of article 19, clause 2 of Collective Agreement 8.1.
Article 19 of the Agreement deals with employees assigned to duties away from their regular places of employment. Mr. Ivany in this instance was not assigned to duties away from his regular place of employment. He applied on a training notice for Radio Technicians. The $58.81 referred to represented 12 hours’ travelling time at pro rata rate claimed by Mr. Ivany in connection with his trip to Montreal to write tests associated with the training he requested.
As his trip to Montreal was not associated with duties away from his regular place of employment I am unable to agree with you that article 19 clause 2 of the Agreement has been violated.
By letter dated March 4th, 1973, the Union set out its position which reads as follows:
A grievance has been forwarded to me for progression at Step 3 of the Grievance Procedure on behalf of Mr. G. Ivany, General Technician, Chandler, Quebec.
Article 19 cl 2 states and I quote in part – “Employees will be paid at pro-rata rate for time travelled outside of regularly assigned hours of duty, on order of the Company,” –
Apparently Mr. Ivany had made application to a training notice for Radio Technician School, and as the Company first wished him to write tests to determine his entrance qualifications for the training contemplated, he was ordered proceed Montreal and carry out these duties. In obedience to this Company directive to perform the required duties in Montreal, Mr. Ivany proceeded from his headquarters at Chandler, Quebec in accordance with article 19 clause 2 and was paid for the 12 hours now in question, and by subsequent action the Company of deducting $58.81 from a following pay period, gave rise to the grievance.
The Company’s reference to article 12 , in this case, is not justified when the complement of the school is only being arranged. The Company at this time have not selected Mr. Ivany for training as they do not wish to put the “cart before the horse” and shows merit for their reasoning, in this case, in directing Mr. Ivany to Montreal to write tests to prove his qualifications before selection for training.
Employees may write tests at any time for any classification, indeed our non-technical employees including the females are now being encourage to avail themselves of technical training. Simply, it is a matter of training only for those who pass and Mr. Ivany was not successful in his writing of the tests and was not selected for training before or after the tests or even at the time he made application to a school for Radio Technicians. Mr. Ivany certainly knew he had to first pass the tests in Montreal and if successful, was well aware that at the commencement of the school later, he would then acknowledge article 12 clause 9, in travelling from his headquarters to Montreal should he then be selected for entry into the school.
It is the Union’s position that Mr. Ivany must be reimbursed again the $58.81 and further that the Company is in violation of article 19 cl 2 of our Collective Agreement. Would you kindly review and advise me as soon as possible your decision in this matter.
On March 14th, 1972 the Company sent the following letter to the Union:
This refers to your letter of March 4, 1973 concerning grievances submitted on behalf of Mr. G. Ivany, General Technician, Chandler, Quebec.
Our review of this case indicates that Mr. Ivany applied to Training Notice No. 4 dated August 4, 1972 which called for three (3) Radio Technicians to fill vacant positions. The grievance concerns the fact that Mr. Ivany was not allowed payment for travelling time necessary to go to Montreal to write qualifying exams before he could be accepted for training.
I would refer you to the decision of the arbitration case held in Toronto on March 12, 1962 which established that there should be no travelling time pay but no loss of wages when travelling in conjunction with training. Under these circumstances we concur with the decision made at Steps 1 and 2 of this grievance.
At the hearing in this matter the Union argued that the Company, having paid the grievor his travelling time, was not entitled to revoke that decision since the payment was made because of an error of law rather than an error of fact. The Company knew the grievor travelled by train to Montreal outside his regular assigned hours of duty and it was accordingly argued that the payment of the travelling time, even if improperly made, was made under the provisions of article 19.2 rather than article 12.9 of the collective agreement. Accordingly the Union argued that the payment was made pursuant to an erroneous interpretation of the collective agreement which constituted an error in law. In support of this argument the Union relied upon the statement of law contained in Halsbury, 3rd edition, volume 26, page 895, paragraph 1655 which states the general rule that relief will not be granted for a mistake of law as opposed to a mistake of fact. The Union also referred the Board to The United Packinghouse, Food and Allied Workers Union, Local 459 and H.J. Heinz Company of Canada Limited, 18 L.A.C. 362, and Re United Electrical Workers, Local 512 and Standard Coil Products (Canada) Ltd., 22 L.A.C. 377. In both cases the employer was permitted to recover money paid to employees as a result of a mistake of fact. The Union argued, however, that since the error in this case was a mistake of law those cases had no direct application.
Having considered all the evidence and the representations of the parties we find that the grievor travelled from Chandler to Montreal and return on September 5th and 6th in order to participate in the Company’s training program rather than for the purpose of performing “assigned duties” within the meaning of article 19 of the collective agreement. We further find that when the Company accepted the grievor’s application for training for the position of Radio Technician, which was filled by the grievor in response to Notice No. 4, he was “selected for training” within the meaning of article 12.9 of the collective agreement. The required test administered to the grievor was an integral part of the training program. The fact that the grievor failed the first test that was given in conjunction with the training program does not detract from the fact that he was “selected for training” when his application was accepted by the Company. His failure of the required tests resulted in the Company refusing to permit his to continue further in the training program.
Let us assume that the grievor had passed the required test and accordingly had qualified for the full twelve week training program. According to the Union’s argument the grievor would then be “selected” for training only after the successful completion of the required tests. Would this passing of the test have a retroactive effect and thereby cause his trip to Montreal on September 5th to become part of his training program since it could then be said that he had been selected for training. We are of the view that the successful completion of the required test, although a prerequisite for continuing the training program, had no retroactive effect. The completion of the test, whether successful or not, was part of the training program.
The provisions of article 19.2 must be read in context with the other provisions of article 19, especially article 19.1. The provisions of article 19 are applicable to employees who are “assigned to duties” away from their regular places of employment. In article 19.1 the parties have distinguished between employees who are “assigned to duties” and employees who are “assigned to training”. The parties have expressed their intention that the provisions of article 19 are not applicable to employees who are “assigned to training”.
When the Company directed the grievor to report to Montreal on September 6th such direction could be characterized as an “order”. However, the order was not in the nature of an assignment to duties within the meaning of article 19 but was an assignment to training which is specifically excluded from article 19.
For the foregoing reasons we find that he grievor was selected for training within the meaning of article 12.9 at the time he was advised by the Company that his application for training was accepted. Our interpretation of the intention of the parties appears to be a reasonable one in view of the fact that it is unlikely that the parties would agree that a candidate for training who fails a test is to be placed in a more advantageous position that the candidate who successfully passes the test.
We now turn to the argument that the Company, having paid the travel time, should not be permitted to deduct such an amount from an employee’s wages because the payment was made by reason of an error in law. Although the Union argued that the payment was made pursuant to the provisions of article 19, there was no evidence to support this argument. The evidence before us is consistent with the fact that the payment was made simply because the grievor’s immediate supervisor improperly approved the original claim made by the grievor. This initial approval of the grievor’s claim could have been a mere oversight. On the other hand, the fact in dispute in this case was whether the grievor had been selected for training when he wrote the test. Even if the grievor’s supervisor believed he had not commenced the training program at that time, such belief was incorrect in our view. Since we have found that the initial test was an integral part of the training program such a mistaken belief involved a question of fact rather than a question of law. If in fact we had found that the grievor had not been selected for training at the time he took the test it may be that neither article 12. 9 nor article 19.2 would apply in which event the grievor might not have been entitled to expenses or wages during his absence from his assigned duties. However, we find that the grievor was, in fact, selected and assigned to training when he was advised that his application had been approved and he was directed to report to Montreal to take the test. If the supervisor’s initial approval of the grievor’s claim was something more than an oversight, it was because of a mistake of fact with respect to the grievor being selected for training. We accordingly find, for the reasons given in the cases referred to above, that the Company had the right to recover the money improperly paid to the grievor because of an mistake in fact.
Our award, therefore, is that the grievance is dismissed
DATED AT TORONTO, this 22nd day of January, 1974
(signed) J. D. O’SHEA (CONCUR) S. E. DINSDAL,E Q.C.
CHAIRMAN COMPANY NOMINEE
(DISSENT) C. W. PETHICK
Mr. Chairman, in your report you have quoted from the two articles in the collective agreement that are pertinent to this case, and you have also stated the facts leading up to the hearing. There is no point in my repeating this information.
I regret that I must dissent from your decision to dismiss the grievance and take the position that the grievor was not entitled to be paid pro rata overtime for travel time outside this regular hours of duty.
I support the Union’s argument that the grievor in this case was not “selected for training” within the meaning of article 12 clause 9 of the collective agreement, and that travelling time was payable to the grievor.
You state in your report that the grievor was “selected for training” when his application was accepted by the Company within the meaning of article 12 clause 9. I cannot agree with that. There may have been five or six employees that applied for training at the same time. There were three positions to be filled according to Bulletin No. 4. It wasn’t brought out at the hearing how many employees applied for the training. If, for example, there had been six applications, the six applicants no doubt would have been given an opportunity to take a test, in order to assure that there were at least three that could qualify. If that were the case, it could hardly be said that the six employees had been selected under article 12, clause 9 of the Agreement for training. The fact of the matter is that the grievor was not selected for training because he failed his test.
On page 10 of your [original] report when you assume that the grievor had passed the test you ask: “would this passing of the test have a retroactive effect and thereby cause the trip to Montreal Sept. 5th, to become part of his training program, since it could then be said that he had been selected for training?”
I don’t think that was ever suggested. Even had the grievor passed the test there is no guarantee that he would be selected for training, if there were more than three applicants taking the test. We don’t know whether he would have been selected after he passed the test or not. There could have been three other successful applicants that might have had more seniority than Mr. Ivany.
I presume that would happen in that case, if Mr. Ivany had passed the test he would still have returned to his job at Chandler until he was notified that he had been selected for training. Then if he travelled to Montreal to take his training he would do so under article 12, clause 9. There could be no retroactivity as I see it.
I support the Union’s contention that article 12, clause 9 only applies to employees selected for training, who actually are provided with the training.
In the case of employees selected and who receive training perhaps there may be some logic in refusing to pay overtime for travelling outside their normal working hours, because having been selected they will receive benefits as a result of the training. They will be able to qualify for promotion and higher rates of pay. Thus, to them, they may consider it worth their travelling on their own time without being paid overtime.
It is an entirely different matter when an employee such as Mr. Ivany fails the test and is therefore not selected for training. In Mr. Ivany’s case he will receive no benefits whatever. However, he did have to travel 1,250 miles and either travel or wait for trains for hours outside his regular hours of duty. So that he gave up his own time and his home life for that short period of time without any compensation, either in overtime pay or benefits as a result of training.
I would point out that had Ivany been successful in his test and selected for training, that while it would be an advantage to him to have the training, it also is a distinct benefit to the Company to have highly trained personnel available. The advantages are not a one way street.
In any case as far as the grievor in this case is concerned, he received no benefit at all and he rightly, I believe, considers that he is entitled to overtime payment under article 19, clause 2 of the collective agreement. The fact that he was not selected for training takes him out from coverage of article 12, clause 9. He does, however, in my opinion, come under article 19, clause 2.
As I see it, article 19, clause 2, applied to all employees except those selected for training as required by article 12, clause 9. No one else, including Mr. Ivany, is excluded. Mr. Ivany was not selected and thereby must come under article 19, clause 2, not article 12, clause 9.
You agree in your report that the notice to Mr. Ivany was a Company order, but you go no further to say it was an order of an assignment to training. Mr. Ivany was given an order to go to Montreal to take a test and was not assigned to take training. He couldn’t be assigned to take training until he had been selected.
One point that was overlooked at the hearing and our discussions is the fact that other tests than tests for training are taken, where an employee might be required to travel to take a test.
For example, I note that article 6, clause 13 of the collective agreement reads: “To qualify for appointment on a bulletin for a regular position in a higher grade in a technical grouping, an employee establishing seniority in the grouping subsequent to November 10, 1967, may be required in addition to the requirements set out in clause 11, to pass a written test in electronic and applied communications theory for the grade of the position concerned”.
One could not argue under that clause that an employee taking a test and failed, that he had been selected for the position. How then can we take this position in the present case?
In no way could it be argued that an employee taking a test under article 6, clause 13 would not come under article 19, clause 2 of the agreement. The same thing applies here in my opinion.
One matter that was discussed and I note there is no reference to it in your report is the fact that the Union claimed there was no necessity for the test to be given in Montreal. It could have been given in Chandler just as well and at less expense and inconvenience to all concerned. I agree with that contention.
Mr. Ivany had to travel 1,250 miles to Montreal and return to take an hour’s test. Whereas if the test had been taken in Chandler the supervisor from Cambellville would have been required to travel only 300 miles to Chandler and return. In fact it is quite possible that he could have supervised the test on one of his routine visits to Chandler, without any extra travel at all.
It should be recognised also, that any of the Montreal applicants could have taken the test without any inconvenience suffered by Mr. Ivany. If the grievor had taken his test at Chandler he wouldn’t have suffered any inconvenience.
It seems unjust indeed that Mr. Ivany should suffer inconvenience he did without compensation, when it could have been avoided by letting him take the test at Chandler.
It being a multiple choice test, it didn’t require any expert supervision or marking. The test would have been marked at Montreal in any case, but not by the supervisor that supervised the test.
The fact that the Company required the test to be taken in Montreal was a Company decision and when Mr. Ivany was told to report to Montreal for the test, it constituted an order by the Company. Having insisted that the test be taken in Montreal the Company is bound by article 19, clause 2 of the collective agreement.
In respect to the question of whether or not the original decision to pay Mr. Ivany for time outside his regular tour, it can hardly be argued that the decision to pay him was not made in accordance with article 19, clause 2. It certainly was not article 12, clause 9, because it states quite clearly there “they will not be paid overtime for travel required outside normal working hours”.
In your support you state, “there was no evidence to support the argument that the Company should not be permitted to deduct such an amount form an employee’s wages, because the payment was made by reason of an error in law”.
If we assume as you do in your report that the grievor’s claim could have been a mere oversight on the part of the officer approving the original payment, then I think it can equally be assumed that the money was paid out in accordance with the collective agreement which after all is the basis of paying expenses to employees. That is more likely to be the case than a mere oversight.
In that respect, I would support the Union’s position that it is an error in the interpretation of the collective agreement, which in effect is error in law and therefore the Company had no right to revoke the original decision by recovering the money.
In conclusion, I support the Union’s claim that the Company violated article 19, clause 2 of the collective agreement. The grievor should be compensated for the full amount of $58.81, which was originally paid to him and later deducted and recovered by the Company.
(DISSENT) C. .W PETHICK