CASE-NO : AH087
DATE : 24/03/75
PARTIES : CN CTU
IN THE MATTER OF AN ARBITRATION
BETWEEN: CANADIAN NATIONAL RAILWAY COMPANY
AND: CANADIAN TELECOMMUNICATONS UNION
DIVISION N0. 43
AND IN THE MATTER OF THE GRIEVANCE OF CHARRON, HARROCHE.
BOARD OF ARBITRATION:
Howard D. Brown, Chairman
S.E. Dinsdale, Q.C., Company Nominee
C.W. Pethick, Union Nominee
For the Company: J.E. Healy, Q.C.
For the Union: M. Levinson
A hearing in this matter was held at Toronto on March 24th, 1975.
The grievance concern the same issue arising from an alleged violation of the Collective Agreement in effect between the parties of Article 19, Clause 2 in that,
"the Company declined the grievors’ claims for travel time of one hour each i.e. from 2200 hours to 2300 hours on 7 January 1973. On that date the grievors commenced travel from Montreal on a train departing at 2310 hours to a work assignment in Gaspe."
The grievance was lodged in March 1973 to which the Company replied by letter dated June 26, 1973 as follows.
"This has reference to your 16 June 1973 letter concerning a grievance on behalf of Messrs. D. Charron, E. Harroche and G. Lemay, who are employed as Installation Technicians at Montreal. The case relates to alleged violation of Article 19, Clause 2, respecting claims from these men for travel time on the so-called "portal to portal" basis when on route to Gaspe on 7 January 1973.
"We cannot accept the ‘portal to portal’ concept. It is the employee’s personal responsibility to present himself for duty at his regular place of employment, or headquarters location, regardless of where he locates his residence.
"Article 19, clause 2 recognizes contractual obligations respecting travel time when performing ‘Service away from Headquarters’ with travel time meaning the time spent by an employee travelling from his heaquarters location to the distant work site to which assigned. It is also well established through practice that travel time commences and ends with the departure and arrival of the means of transportation used between the headquarters and the distant locations.
"Since these three employees used sleeping accommodations on the train which departed Montreal after 11 P.M., we cannot agree that there has been any violation of Article 19, clause in the matter."
The Article in dispute is headed Article 19- "Service Away from Headquarters" and Clause 2 of same is as follows;
"Employees will be paid at pro-rata rate for the time travelled outside of 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 grievors are installers based in Montreal. On Sunday, January 7th, 1973 they were required by the Company to go to Gaspe and for that purpose to take a train leaving Montreal at 11:10 p.m. The grievors were not scheduled to work that day, it brings a day of rest for them. The grievors claimed an hour of travel time from 10:00 p.m. to 11:00 p.m. to get from their home to the station to obtain berth accommodation. They were paid their cost to travel by public or private means but their claim for the hour of pay was denied and that is the issue now before this Board, i.e. whether the grievors are entitled under Article 19 to obtain pay for the time spent in travelling from their houses to the train station. It is their position that this was time travelled outside regularly assigned hours of duty. The Company took the position set out in its letter of June 26th and submitted that the clause was ambiguous in that there was a latent ambiguity because of the silence on this exact issue. The Union objected to the admissibility of extrinsic evidence asserting that the clause was clear on its face and not ambiguous. The Board found that there was no patent ambiguity in the clause but permitted the Company to lead evidence to establish that a latent ambiguity exists and reserved its decision at the hearing in that regard.
The evidence of Mr. Harroche was that he became an installer on January 18. 1971 at which time there was a meeting with the Regional Manager and Superintendent of Plants concerning working conditions. They asked about payment for travel outside of working hours and were told they must write down the time they leave home and when they said that would usually be one hour, the reply was that it would usually be that time. They were told by the foreman they had to be at the station at least one-half hour before departure of the train to get their reservations. After that, he went out of town frequently and mostly by train and the Company had approved the hour he put in for travel from his home. On January 7th, he left home at 10:00 p.m. and travelled by taxi to the station. The cost of the taxi was paid by the Company. Mr. Lemay lives fifteen miles from the station and Mr. Charron about five miles and he travelled by bus. On returning from the trip they were paid depending on the time or arrival so that if they returned within the regular working hours they had to go to the shop but if after 4:30 p.m., they counted time until they arrived home. If they are assigned to travel by personal automobile the mileage is paid and the time is counted from when they are called at the rate of time and one-half on the basis that when your driving you are working. Mr. Campagna who was an installer and is now a equipment technician said that when he has been required to go out-of-town to perform duties for the Company he is required to be at the train station one-half hour in advance and it would take at least that much time to get from his house to the station and always had charged from the time he left home together with his taxi fare and was paid accordingly by the Company. Sometimes he would charge more or less than an hour depending on the circumstances. Mr. La Pine also installer testified to the same effect as the others that he had been paid from the time he left home to the train time when travelling on out-of-town assignments.
Mr. Sereda, a labour relations officer, said that the wording of 19.02 goes back at least to 1967 and probably similar language was in effect before that. He said the practice of the Company that travel time commences and ends with the departure and arrival of the means of transportation used from the headquarters to the distant location and that is the basis of payment to employees. On a review of records of claims for travel time in Montreal for installers since November 1972, he found no claim which was allowed for travel time between homes and train stations. The first claim which was disputed was that of Mr. La Pine who had filed a grievance. He said that these kind of things could have been paid prior to 1971 but he did not accept that the supervisiors had given such instructions to Mr. Harroche as indicated in his evidence as one of them had disallowed Mr. La Pines’ claim.
It is the Union’s position that the purpose of this clause is to provide compensation for employees for the time the Company required them to be available on other than assigned hours and this would include time to go to and from transportation. Here the grievors were required to go to Gaspe on their day off and the dislocation is not just the time on the train but is the total time away from home including time spent in getting to the train. It was argued that should the past practice be considered it has not been uniformly applied and is not consistent so there has not been a clear practice to deny such payments. Reference was made to the situation where a car is used for transport and the driver is paid from call to the destination at time and one-half and a passenger would get the same time but at straight time rates. The controlling time for the purpose of Article 19 is to be outside of regular hours and is therefore not merely a question of whether they go on a day of rest. It was necessary for the grievors to be at the station one-half hour in advance so a full hour claim was justified. The Company submitted that there has been a long period of time where there has been no objection to its practice as outlined by Mr. Sereda. It was submitted that the clause meant "service away from headquarters" and not "time away from an employees’ house". That would be time spent whether travelling to headquarters for regularly assigned work and there is no difference for that time when it is outside of regular hours for the purposes of travelling from heaquarters. It was suggested that there is no basis for the one hour claim for each employee as the time spent in any event would differ in relation to where the employee lives and the location of his residence is up to the employee. It was argued that there was a long standing practice of paying for travel time only from the departure and arrival of the mode of travel used to the location of work.
We have found that clause 2 of Section 19 is not ambiguous on its face. Extrinsic evidence was allowed in to show a latent ambiguity if any, in that clause and of course, it is up to the party alleging that proposition to establish it. In our opinion, the Company did not by its evidence, reveal such uncertainties or difficulties of wording that would substantiate a finding that a latent ambiguity exists. The words used by the parties are clear and capable of application to the issue without resort to extrinsic evidence to explain or aid our interpretation. Having found that Section 2 Clause 19 is not ambiguous, the extrinsic evidence led and received cannot be used by the Board to interpret this provision. Apart from that, the evidence was equivocal in nature and did not describe a consistent application of this provision which could be found to be a clear practice of the Company. The evidence for the Union which is not substantially contradicted is that supervisiors had instructed Mr. Harroche and other installers with regard to travel time and the inference was that an hour’s claim would be acceptable. Thereafter, there is evidence that such claims had been met by the Company and evidence that the claim was disputed but it cannot be found on the evidence that there was a clear application by the Company in the manner it suggested which was acquiesced in by the grievors of the Union. In summary, we find that the Company has not established that there is a patent or latent ambiguity in Clause 2 Section 19 and that in any event, it did not establish a course of past conduct which would persuade this Board to give such a meaning to the provision in dispute.
Article 19 applies to service away from headquarters which is a general description for all time or service outside of actual regular hours spent at headquarters, then that general description is further defined in Clause 2 to cover "time travelled outside regularly assigned hours of duty". Here there is no question that the grievors were assigned to go to Gaspe by the Company for its purposes and on its order and that the time travelled would be outside of the grievors’ regular hours of work. That work is service away from heaquarters but for the purposes of Clause 2, the parties have not used "headquarters" as a point of reference but have used the general term of "time travelled", with the specific exception of the hours after 11 p.m. The Company has paid for time spent in travel from an employee’s house when a car is used on the basis set out above. Why then should there be any difference in approach when an employee is required to leave his house by taxi or public transport to get to the train station. He is then just as much at work in the sense of being required by the Company to travel as he drove his own car. This situation is not comparable to an employees’ travel to his headquarters to report for regular duties, that of course is for him to arrange to be at work as required - Article 19 applies to extra time required of him - outside of his regular hours - by the Company and for that time he is entitled to be compensated from the time he starts from his residence as being time for travel. To apply the Company’s submission would require the addition in Clause 2 of words to relate the time of travel from the employees’ headquarters and in spite of the general heading of the section, the specific clause of reference has no such restriction and this Board cannot by Article 22, Clause 5, "add to, vary or disregard any provisions of this agreement". The grievors’ time spent in travelling for the Company commenced when they left home and at that point they were on duty for the Company outside of their regular hours. This is supported by the fact that the Company pays their actual out of pocket expenses for the mode of travel used by them to the station. This would not be done in regular duty where the employee is required to report at headquarters. This is clearly recognized as something different and that it is part of the travel time required of them. The evidence disclosed that they were required to be at the station at least one-half hour before train time to get berth reservations so it is not unreasonable in this case to expect the grievors to take another half hour to make the trip from their homes to the station. They should be paid under the above application, their exact time of travel but for the purpose of this case and in view of the passage of time it should be accepted that the claim for one hours pay was relatively accurate for each of the grievors.
We therefore, find that the Company was in breach of Article 19, Clause 2 of the Collective Agreement by denying payment to the grievors for travel time as claimed and therefore, find that the grievances succeed.
DATED AT TORONTO this 19th day of June, 1975.
Howard D. Brown____________
IN THE MATTER OF AN ARBITRATION
BETWEEN CANADIAN NATIONAL RAILWAY COMPANY
AND CANADIAN TELECOMMUNICATIONS UNION
DIVISION NO. 43
AND IN THE MATTER OF THE GRIEVANCES OF CHARRON, HARROCHE AND LEMAY.
DISSENT OF S.E. DINSDALE, Q.C.,
I have the opportunity of reading the Award of the Chairman in this case and wish to dissent from it.
The facts are fully and accurately set out in the Chairman’s Award and it is not necessary for me to review them here. The issue raised by this grievance is whether or not the Article 19.2 of the Collective Agreement entitles the grievors to be paid for time spent in travelling from their homes to the railway station when undertaking an assignment away from Company headquarters in Montral. Article 19 reads in part as follows:
ARTICLE 19 - SERVICE AWAY FROM HEADQUARTERS
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.
Employees will be paid at pro-rata rate for time travelled outside of 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 take every effort to obtain berth accommodation.
It is my view that Article 19.2 of the Collective Agreement, properly interpreted, has no application in this situation and it of course follows that I do not agree that the Company has violated that provision. Further, my interpretation is supported by the evidence of past practice which was adduced on the Company’s behalf and I would find that there is ambiguity in the clause which would permit the Board to take that evidence into account in interpreting the clause.
It is accepted law that extrinsic evidence of past practice is admissable to assist a Board of Arbitration in interpreting clause of doubtful meaning of application. Such clauses are considered to contain a latent ambiguity. (See re: Teamsters Union and Motor Transport Industrial relations Bureau (1969) 22 LAC 57 (Weatherill); and re: Leach Goldmines et al and Texas Gulf Sulpher Co. (Inc.) e DLR 3 (d) 161.) I find the wording of Article 19.2 to be doubtful in its application. To illustrate, I note that the Chairman has found (and with this finding I agree), that the time spent outside of regular hours by an employee in travelling from his home to headquarters each day, does not come within the purview of Article 19.2. However, a literal reading of this section may lead to a different result. In my view, this illustrates the latent ambiguity contained in the clause and allows the admission and consideration of evidence of past practice.
Turning to the evidence adduced on behalf of the Company, I find it establishes a Company practice of not paying for travel time in the circumstances of this case. Mr. Sereda, a Labour Relations Officer of the Company whose responsibilty includes that of travel time policy, stated that the practice of the Company was to apply travel time under this clause commencing and ending with the departure and arrival of the means of transportation used from the headquarters to the distant location. He further stated that he reviewed Company records from August 1972 in connection with claims made by installers in Montreal for travel time and these records disclosed no instances in which a claim was allowed for travel time between an employee’s residence and a railway station. Mr. Sereda added that the Company did not concern itself with the location of an employee’s residence, as it is the headquarters location that is taken into account by the Company in determining entitlement to pay under Clause 2 of Article 19. Mr. Sereda stated that he was aware of any grievance prior to the instant case regarding this issue. I find the evidence of the witnesses called by the Union relating to past practice indicates only a belief or feeling by these employees that the Company had paid them for time travelled outside regular hours from the time they left their respective residences. The evidence of specific instances must, at its best, be accepted as isolated conduct which would not detract from the Company’s evidence of general policy. For these reasons I accept the Company’s evidence of practice and would deny these grievances on that basis.
In reaching the conclusion I have, I am further assisted by the context of the article in which Clause 2 is found. The title of the article is "Service away from headquarters", and on its face would suggest that the article is intented to deal with situations where the employee is away from the Company’s headquarters. This context is borne out by Clause 1, which provides for expenses being paid by the Company where employees are away from their "regular places of employment". No reference is made in Clause 1 to an employee’s residence as being the focal point from which expenses will be paid. In my respectful view, Clause 2 read in this context does not require the Company to pay employees for time spent travelling from the employee’s residence to the railway station. I find that the obligation to make such payment commences at the time of departure from the railway station.
For all the following reasons, I would dismiss this grievance.