CASE-NO : AH100
DATE : 17/02/77
PARTIES : CN CTU
CANADIAN NATIONAL RAILWAY COMPANY
CANADIAN TELECOMMUNICATIONS UNION
DIV. 43 OF THE UNITED TELEGRAPH WORKERS
Board of Arbitration
P. John Brunner - Chairman
C.W. Pethick - Member
S.E. Dinsdale, Q.C. - Member
For the Company: J.W. Healy, Q.C.
For the Union: M. Levinson
This is a grievance by Leandre Boucher and Gilles Patenaude, both Installation Technicians employed by Canadian National Railway Company Telecommunications Dept. (hereinafter referred to as the Employer) wherein it is alleged that the Employer violated Article 12, Clause 9 of the Collective Agreement entered into between the Employer and Canadian Telecommunications Union Division No. 43 of the United Telegraph Workers (hereinafter referred to as the Union), in refusing to reimburse the grievors for certain luncheon expenses which they incurred while attending an employee training program at premises located at 600 Peel St. (Bonaventure Maintenance area) in the City of Montreal.
The purpose of the program was to train qualified employees for the position of Equipment Technician.
Both grievors had been employed by the Employer for approximately one year prior to them being selected as successful candidates for the aforementioned training program on February 5, 1974. The Employer carries on its business enterprise, inter alia, from seven locations in the City of Montreal which is part of its Quebec district. Prior to the 5th of February, 1974, both grievors had worked out of one of the Employer’s location in the City of Montreal on Nazareth Street (now known as St-Paul Street). For the purposes of this grievance we take that location to be their "regular place of employment" and their "headquarters" without having to decide whether for other purposes the two are synonomous. The training program which ran for approximately six weeks, required the grievors to attend classes at 600 Peel street during the hours of 8:30 a.m. and 4:30 p.m. The distance between the two locations, i.e. 600 Peel Street and the Employer’s premises on St-Paul Street, was variously referred to during the course of the evidence as three or four blocks, a five minute walk, 1465 feet or 550 paces. It appears that the St-Paul Street premises had attractive and very adequate luncheon facilities, including refrigerators and stoves, which the employees were in the habit of using for the purposes of preparing their meals. The facilities at 600 Peel Street were not as attractive and while there was a refirgerator, a snack bar and a cafeteria located throughout the building, there was some question in the minds of the grievors as to whether they would be entitled to put their lunch bags in the refrigerator and consume their noon day meal at this location.
During the course of the training program the grievors were also required to attend at the Employer’s Equipment Service Centre (Lebeau Street) in Montreal for practical training. This center did not have lunch room facilities and the Employer accordingly reimbursed the grievors for their luncheon expenses while they attended the Equipment Service Centre. However, when the grievors sought indemnity for their expenses while attending classes at 600 Peel Street, the Employer objected and refused to do so.
Prior to the commencement of the training program, both grievors had from time to time performed various duties at 600 Peel Street. It was their habit to leave their lunch bags at St-Paul Street and then walk over to Peel Street. At noon they were given half an hour to eat their lunches, plus 20 minutes for the purposes of walking back and forth to St-Paul Street. At no time were their lunches paid for by the Employer while they worked at 600 Peel Street.
There was some evidence which indicates that the Employer did pay certain other employees for their lunches when such employees were assigned to duties away from their regular place of employment, even though both the regular place of employment and the assigned location were within the Montreal area. However, this occured, with some minor exceptions, only with respect to inter-city work assignments and not when an employee was in the process of attending a training program. It would appear that the payment of such expenses was made pursuant to the provisions of Article 19 (clause 1) of the Collective Agreement which clearly, by its very terms, has no application to an employee who has been "assigned to training". The evidence as to why these payments were made in some isolated cases to other employees who attended a training program in the Montreal area at locations away from their regular place of employment was rather vague and somewhat unsatisfactory. Giving the matter our best consideration, it appears to us that such payments were made on an individual case basis having regard to the distance between the employees’ regular place of employment and the location of the training facilities in situations where the employees could not be taken back to their headquarters in sufficient time to have their noon day meal.
Counsel for the Union submitted that extrinsic evidence in aid of the interpretation of Clause 9 of Article 12 was admissible on the grounds that the language contained in the said Article was equivocal or alternatively, that its application to the facts was uncertain or difficult. It is for this reason that he led the aforesaid evidence as to "past practice" of the Employer with respect to the the payment of employees’ lunches while they attended a training program. While Counsel for the Employer took no objection at the time such evidence was introduced, he did submit that it could not be used by us in aid of the interpretation of the said Clause.
We are satisfied that there is no latent ambiguity within the meaning of the authorities (see Leitch Gold Mines Ltd. et al v. Texas Gulf Sulphur Co. Inc. et al (1969) 1 O.R. 469) and that accordingly extrinsic evidence or evidence of past practice in aid of interpretation of the said Article is not admissible and we accordingly do not in any way rely upon it.
The Employer’s reasons for refusing payment are set out in a letter dated June 12, 1974, from one Frank B. Tutt to J.M. Beauchemin and read in part as follows:
"As explained in the letter to Mr. Boucher, the school location is a couple of
blocks from his normal location on St-Paul St. During his normal work routine,
when he was assigned to work at 600 Peel St., he normally went back to St-Paul
St. to eat his lunch if he so desired, and no expenses were paid when working on
The situation does not change when he attends a course on Peel St. and as a result
we indicated that we are quite prepared to allow him to return to St-Paul St. If he
so wished, however, no expenses were incurred as a result of him being assigned
to 600 Peel St. and therefore there were no expenses to be paid. You indicated
that Mr. Boucher has been treated differently from other employees, however it
has not been our practice to pay expenses at 600 Peel St. for employees whose
normal work location is within walking distance of this building and who could
quite easily go back to their regular work location to eat if they so desired. "
There was some evidence which tended to indicate that the grievors became aware during the course of the training program that they could use the eating facilities at 600 Peel St. or return to St-Paul St. whichever suited them best, but that they would not be reimbursed for monies expended by them for lunches while attending the program.
The grievance herein alleges an employer violation of Article 12, Clause 9 of the Collective Agreement. The question which we must answer is whether the luncheon expenses incurred by the grievors while attending the training program qualified as "other reasonable expenses" within the meaning of those words in Article 12, Clause 9. In our opinion they do not. That Clause provides that an employee is to suffer no loss of wages while in transit if he is required to travel from his headquarters to the training location. Reasonable travel expenses are to be allowed. During the training period they are to be provided hotel accomodations arranged by the Company or allowed in lieu thereof, to claim an amount equivalent to such cost for accomodation of their own choice and are to be reimbursed for other reasonable expenses.
In our opinion that Clause can have no application to an employee who is required to walk 1,450 feet from his headquarters to the training location and has more than adequate time to return to his headquarters for the purposes of taking his meals.
In our view "other reasonable expenses" within the meaning of that Clause are intended to cover expenses ancillary to or normally associated with travel away from an employee’s headquarters when he is required, by reason of the distance from his headquarters, to use hotel facilities while attending the training program. This obviously is not the case in the circumstances herein. In our opinion Article 12, Clause 9 has no application to the facts herein. It follows from the above that there was no breach of the aforesaid Article or any other provision of the Collective Agreement. The grievance is dismissed.
DATED at Toronto this 17th day of February, 1977.
S.E. Dinsdale, P.Q.
February 26, 1977
MR. P.J. Brunner
Chairman, Board of Arbitration
IN THE MATTER OF ARBITRATION BETWEEN
Canadian National Telecommunications
Canadian Telecommunications Division of the Canadian Brotherhood of Railway, Transport & General Workers
GRIEVANCES CONCERNING MESSRS. LEANDRE BOUCHER AND GILLES PATENAUDE, INSTALLATION TECHNICIANS, MONTREAL.
I am sorry but I must dissent from your award in this case. The question to be solved is whether the request of Messrs. Boucher and Patenaude for lunch expenses are covered by Article 12, Clause 9 of the Collective Agreement, and if so was the request reasonable under that clause. When the Company refused payment did this constitute a violation of the Agreement ?
I cannot accept the interpretation of the clause that the reasonable expenses in the clause was intended to apply "only" when an employee was required to use hotel facilities.
Mr. Tutt in his evidence made it clear that the only reason the Company refused to pay these expenses was the short distance they had to travel from Peel St. to St-Paul’s. It was quite clear from his evidence that had there been a greater distance to travel he would have paid the expenses.
As a matter of fact expenses were paid to the same employees when they were training at Lebeau. So the only reason that payment was not made was because of the short distance to travel, not that the clause did not apply.
It was brought out in evidence that when an employee was assigned to duties away from headquarters he would either be paid for his lunch expenses or be allowed to travel back to his headquarters for lunch.
It seems to me that it is quite reasonable to contemplate that when Messrs. Boucher and Patenaude were on training, they could easily assume that they would get the same benefits as when they were working at Peel St.
Had the Company allowed them extra time to return to headquarters as they do when working at Peel St., no expense account would have been submitted.
It was brought out in evidence of Mr. Boucher that in order to leave his lunch at St-Paul’s, he would have to get off the Metro and travel to St-Paul’s and then to Peel St. At noon he would have to walk back to St-Paul’s and return to Peel St. So it wasn’t just one trip from Peel Street to St-Paul’s and return that was involved.
It was brought out that sometime during the training period the Company claimed they had told Boucher and Patenaude, that they would not be paid lunch expenses at Peel Street. Mr. Boucher did not have an opportunity to state whether or not he had been given this information, but Mr. Patenaude said he could not recall having been told so and said that if that had been the case he wondered why he would have submitted an expense account.
It was argued that while the lunch facilities were not as good at Peel St. as at St-Paul’s, there were some facilities there. There was a refrigerator, but no stove for example.
Mr. Boucher pointed out that they weren’t sure whether or not they could use the facilities that were there. They hadn’t used them when they were working there. The facilities were for the use of employees in a different railway department, and there were 250 employees to use one refrigerator.
While it is easy to suggest that the Peel Street facilities could be used by these employees, it isn’t reasonable to believe that they were actually going to use them. At St-Paul’s he said there were about 25 employees about and no outsiders use their refrigerator. Undoubtedly Boucher and Patenaude would be considered outsiders at Peel Street. The fact that there was one refirgerator for 250 employees demonstrates the inadequacy of the facilities.
Evidently although both Article 19 Clause 1, for employees on duty and Article 12, Clause 9 for employees on training, provide for expense money when away from headquarters, the employees have accepted the practice of taking time off in lieu of expenses, with the approval of the Company.
It is my view that the expense accounts submitted are covered by Article 12, Clause 9, and that the Company should have either paid the expenses or allowed the employees time off, as they do when they are on duty.
Having done neither, I consider the Company has violated Article 12, Clause 9 of the Agreement, and the expense accounts submitted should be paid.