IN THE MATTER OF AN ARBITRATION

BETWEEN: C.N. TELECOMMUNICATIONS

(hereinafter called the "Company")

- and -

C.N. TELECOMMUNICATIONS UNION - UNITED

TELEGRAPH WORKERS LOCAL 43

(hereinafter called the "Union")

GRIEVANCE OF J. BRYANTON

(hereinafter called the "Grievor")

BOARD OF ARBITRATION: W.B. Rayner, Chairman

S.E. Dinsdale, Q.C., Company Nominee

C.W. Pethick, Union Nominee

APPEARING FOR THE COMPANY: J.W. Healy, Q.C.

APPEARING FOR THE UNION: P. Cavalluzzo

HEARING HELD AT TORONTO THE 18TH DAY OF DECEMBER 1975

AWARD

In this case the grievor claims that the Company has violated Article 21, part 2 clause 1. That article reads in part as follows:

"A grievance concerning interpretation or alleged violation of this Agreement, or an appeal by an employee who believes that he has been unjustly dealt with, shall be processed in the following manner:"

The remainder of Article 21 sets out the grievance procedure. The reason that the grievor brings the grievance is that the Company has denied the payment of claims for travel expenses in the form of taxi fares when the grievor was called in to work overtime. The grievor takes the position that since the Company has paid such claims in the past to other employees the denial of payment to him is unfair treatment.

At the commencement of the hearing, Mr. Healy, on behalf of the Company, took the position that there was nothing in front of the Board on which it could make an award. The position of the Company simply put was that the matter was not arbitrable in that there was nothing in the collective agreement giving the employee the right to claim travel expenses.

Mr. Healy’s submission was that Article 21 was procedural in nature. A matter only became arbitrable if a provision of the collective agreement had been violated. Since the matter of travel expenses was not covered by the collective agreement even if other employees had received payment in the past, the grievor had no basis upon which to bring his grievance.

To support that argument, he referred the Board to Article 22 which arbitration. That article provides in part for the submission of disputes to arbitration "provided the grievance involves the meaning or alleged violation of any provision of this agreement".

The Article then goes on to specifically exempt from arbitration certain matters which include a request for a modification of the agreement, a matter not covered by this agreement, or any matter which by the terms of the agreement is exclusively vested in the Company. Mr. Healy takes the position that since there is nothing in the collective agreement dealing with travel expenses, the matter is not covered by this agreement and therefore not abitrable by virtue of Article 22.

He further suggested that Article 21 operates in the fashion of a funnel. In other words, according to Article 21, an amployee may submit a grievance on any matter that he considers to be an appeal with respect to unfair treatment within the meaning of that article. However, only those matters which are not exempted by Article 22 can be subject to arbitration.

In further support of this position, Company counsel referred the Board to a decision of a Board of Arbitration chaired by Mr. G. Adams, Re Hydro Electric Power Commission of Ontario and Canadian Union of Public Employees, Local 1000, 8 L.A.C. (2d) 180. In that case, the precise issue arose that confronts this Board. In dismissing the grievance on the ground that the alleged unfair treatment was not arbitral, the Board took the position that the grievance article which referred to "unfair treatment" was a procedural right only. Thus, the Board took the position that all decisions affecting employees whether based upon wording in the collective agreement or otherwise were subject to the grievance prodedure. However, once the matter reached the stage of arbitration, only those matters covered by the collective agreement were arbitrable.

Mr. Cavalluzzo, on behalf of the Union, took the initial position that the Company should have made known its clear preliminary objection at an earlier stage. He further argued that the appeal referred to in Article 21 is a grievance and did not simply give the employees a procedural right. Rather, in his opinion, Article 21 gave the employees a substantive right to proceed to arbitration. He buttressed this argument reference to Article 1 of the collective agreement whereby both parties pledges themselves to follow the spirit of the agreement. He made the analogy that the question of unfair treatment was akin to the questions arising when employees claim that they have been disciplined in a discriminatory fashion. In his opinion, the issues raised were quite similar in that one of the basic questions raised in those areas of uniformity of treatment. He suggested that the Board was quite competent to deal with that issue and that issues of this type had historically been dealt with by boards of arbitration.

At the conclusion of the argument on the preliminary objection, the parties indicated that they wished to have a ruling on the objection before evidence was called on the merits and preferably at the conclusion of the argument. The Union had gone to some expense to bring witnesses from varying parts of the country and wanted to have these witnesses heard. This, of course, would have involved an investigation of the merits of the case. On the other hand, Mr. Healy wanted a ruling on his preliminary objection before the merits were considered.

The Board then adjourned and considered the question. At the end of the ajournment, the Board in a majority decision decided that the preliminary objection was proper and the grievance should be dismissed. It was so awarded and indicated that written reasons would follow. Mr. Cavalluzzo asked the Board to note in its reasons his request for the right to make further submissions on this point. The Board in making its oral decision refused this request.

In the Board’s opinion both the wording of the collective agreement and reasoning enunciated in the Hydro Electric Power Commission case referred to earlier, compelled the Board to the conclusion that the matteer is not arbitrable. In our opinion, Article 21 provides for the bringing of grievances where unfair treatment is alleged. However, if those grievances are to be pursued to arbitration, the unfair treatment must be founded on some alleged violation of the collective agreement apart from Article 21. Indeed, Article 22 provides that a matter cannot be arbitrated that is not covered by the agreement.

In our opinion, the analogy that Mr. Cavalluzzo makes to discipline cases is not proper. When an employee is disciplined improperly, a violation of the collective agreement does occur. Certain rights and benefits flowing to him under the collective agreement cease, if, for example, he is suspended for a period of time or discharged. Even if the discipline only involves a reprimand the threat of future action by the Company based in part upon that reprimand would to some extent limit his rights and benefits under the collective agreement. In the instant case, assuming that the Union could establish that some employees did receive travel expenses in circumstances similar to those of the grievor, and in passing it should be noted that the Board makes it assumption in making its award, it would still be impossible to say that there was a violation of the collective agreement. At best, all that could be said was that the Company was withholding a gratuitous benefit to the grievor when it bestowed that benefit on other employees. Although such an action may be unfair in the abstract, it cannot be said that it is a violation of the collective agreement.

Quite clearly, the wording of Article 21 with its reference to unfair treatment is sufficient to found both a grievance and subsequent arbitration when the employee accuses the Company of improperly disciplining him. In that case, the unfair treatment does involve a denial of rights and benefits under the collective agreement. In this case, any unfair treatment simply involves the denial of benefits which the Company is not obligated to give under the wording of the collective agreement.

Finally, the Board was of the opinion that Union’s counsel request for time for written submissions was not appropriate in the circumstances. Correspondence between the Company and Union prior to the hearing indicated that the Company could be reasonably expected to take this position. For example, in a letter dated July 22nd, 1974, the Company responds: "There is no provision in the agreement for payment of transportation expenses to an employee for presenting himself for duty at his regular place of employment". Again, a similar statement was made in a letter dated August 6th, 1974. Given these earlier communications, the Board cannot conclude that the Union was caught by suprise by the preliminary objection and in such circumstances an adjournment was not warranted.

Finally, in closing the Board wishes to refer to one other matter. In one of the letters, reference was made to the Union attempting to obtain such a benefit through further negotiations. In reaching its conclusion, the Board placed no weight whatsoever on this reference in the letter from the Company to the Union.

Accordingly, for the reasons set out above, the Board is of the opinion that the grievance must be dismissed as the matter is not arbitral.

DATED at London this 12th day of January, 1976.

W.B. Rayner___________

I concur S.E.Dinsdale___________

I dissent C.W. Pethick___________