SUBJECT : WAGES - EXPENSE ALLOWANCES
BETWEEN : CANADIAN ASSOCIATION OF COMMUNICATIONS
AND ALLIED WORKERS,
(HEREINAFTER CALLED "THE UNION")
AND : TERRA NOVA TELECOMMUNICATIONS INCORPORATED
(HEREINAFTER CALLED "THE COMPANY")
GRIEVOR : R. F. CHAULK
APPEARANCES : FOR THE UNION :
E. R. MALONE - DISTRICT CHAIRMAN
R. F. CHAULK - GRIEVOR
FOR THE EMPLOYER :
R. SYMONDS - VICE-PRESIDENT & GENERAL MANAGER
C. L. SNOOK - MANAGER OF EMPLOYEE RELATIONS
JEHU DODGE - DIRECTOR PLANNING AND ENGINEERING
ERIC FACEY - B.A., LL.B. - COUNSEL
M. A. ENGLISH - MANAGER SWITCHING SYSTEMS
BOARD : GORDON G. EASTON, Q.C. - CHAIRMAN
WAYNE NOSEWORTHY - UNION NOMINEE
FREDERICK W. RUSSELL - COMPANY NOMINEE
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This matter came before the Board on February 18th., 1985 and February 19th., 1985. At the outset it was agreed :
1. That the Board was properly constituted.
2. That the Grievance Procedure had been properly followed.
3. That the Board was to remain seized of this matter for a period of ninety (90) days following the date of this Award in the event that any interpretation of this Award or it’s effect was necessary.
4. That there was no necessity of giving notice to any other party likely to be affected by the outcome of this Award.
A copy of the Collective Agreement and a copy of the Grievance were taken into evidence by consent. A number of other exhibits were taken into evidence and identified for the record. They may be referred to on occasions throughout this Award. Evidence was given by the Grievor, by Cindy Avery, a Dietician with a local Hospital, R. Symonds, Vice-President and General Manager of the Company and by M. A. English who is in charge of the switching stations.
This matter surfaced initially when the Grievor R. F. Chaulk submitted his October 1983 meal account to the Company. He was at that time working in the Hawke’s Bay Region of the Province. He was written by Mr. English on November 30th., 1983.
"A review of expenses for the Hawke’s Bay Region indicates that your account is running $2.00 - $3.00 above the others. I have, however, approved your October account for the amount submitted for the eleven days you were at Hawke’s Bay. You are hereby instructed to submit your November account to be within the daily average for that area.
A review of your file indicates that you have been written on several occasions in the past concerning the submission of expense claims deemed to be excessive by your Supervisors. A continuation of such claims will result in a formal interview".
The Grievor submitted his expense account for the month of November 1983 to the Company. The charges he outlined for meals for the total of sixteen (16) days involved varied from a low of $19.00 per day to a high of $26.00 a day with a majority being in the $24.00 to $25.00 range.
On January 13th., 1984 he was again written by Mr. English. This letter read : -
"You were written on November 30th., 1983, concerning your expense account for October 1983 for the Hawke’s Bay Area, which averaged $2.00 - $3.00 daily above other employees. You were instructed to submit your November acount within the daily average.
A review of your November 1983 account indicates that you have chosen to ignore these instructions. Your account for November has therefore been reduced by $28.00"
The Grievor wrote to his Union on February 19th., 1984.
"Enclosed please find a copy of two letters dated November 30, 1983 and January 13, 1984 respectively. Also enclosed is a copy of my November expense account for 1983.
As the January 13, 1984 letter indicates the Company has reduced my November expense account by twenty-eight dollars, I contend that this is in violation of Article twenty-one of Agreement 8.1.
My expense claims for full days (three meals) averaged twenty-five dollars. This amount was approved and passed on my October account. Twenty-five dollars as an average was also approved for Calvin Grandy, relief plant tech. in St. Anthony for the month of August 1983. It was also similar to the amount approved for John Hamilton for the months of July and August 1983 at Roddicton.
There is very little or no difference in the price of meals at the Motel in Port aux Choix where I was staying compared to the Motels in St. Anthony and Roddicton. As such I think my expense claims were not unjustly. Please consider this as a written grievance".
At the various stages of the Grievance Procedure letters were exchanged between the Union and the Company, but the Employer continued to deny the Grievance. When the matter came for Arbitration the following "statement of dispute" was put into evidence. This was agreed to by Mr. Malone and Mr. Facey : -
"Agreement 8.1 governs the working relationship between Terra Nova Telecommunications (Company) and the Canadian Association of Communications and Allied Workers (Union).
Mr. R. F. Chaulk (a member of CACAW) submitted his expense account for November 1983, and subsequently the Company reduced this account by $28.00. This twenty-eight dollar reduction is the sum of all instances during the month where Mr. Chaulk’s meal expenses had exceeded $23.00 per day.
To recoup the $28.00 for Mr. Chaulk, this grievance is taken by the Union under Article 21.1 of Agreement 8.1 which states :
‘Employees assigned to duties (other than by bulletin or when assigned by 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’."
The Grievor gave evidence at the Hearing. During the times in question he had been working as an Installation Technician with the Company in the Hawke’s Bay Region of the Province. He stayed at the Sea Echo Motel in Port aux Choix. He claimed that the amounts for meals which he claimed on his October and November expense accounts were actual. The Company does not require receipts. He understood that the Company generally allowed one to expend 10% on gratuities for meals.
The Grievor said he had not seen the expense accounts of other Terra Nova Tel employees working in the area so he could not really compare his with theirs. He considered that his meal expense accounts were reasonable. He said that there were occasions when he would spend more for meals than he actually claimed from the Company. In this mind he figured that $25.00 per day for meals was a reasonable figure, and one that was acceptable to the Company. He examined the August expense accounts of another employee, John Hamilton, who had at that time been in the Roddicton Area. Hamilton had submitted $25.00 per day for five
days and that had been accepted by the Company. Another employee, Clavin Grandy, who had been working in the St. Anthony area in August of 1983 had submitted a claim of $25.00 a day for eleven days, and this too had been approved by the Company.
On cross-examination the Grievor admitted that his October meal expense account had not been reduced although he had been written about it by the Company. Also, he knew that Mr. Grandy had been asked for an explanation. Mr. Grandy apparently gave a satisfactory explanation and his expense account was approved. The Grievor did not know if Grandy had submitted a higher account for the next month. He admitted that apparently all three, he, Grandy, and Hamilton had submitted accounts which were not cut on the first occasion. He also admitted that on previous occasions he had received letters which indicated to him that "it was unreasonable on that occasion and that they expected my claim to fall within the average the next time". This was some time ago.
Further, on cross-examination the witness agreed that his daily average costs of food in October was $25.03. The same was true for November. He stated that his food costs for November was actually a few dollars higher than he had claimed. He usually kept track of his meal costs even though he did not make a note of what each meal cost. He stated that at the end of each day he pretty well knew what he had spent for that particular day. What he spent was not necessarily what he put on his expense account.
He admitted that he did not keep an accurate running tally of each meal and what it costs. He claimed that there were a number of days when he spent over $25.00 per day for meals.
The Grievor stated that he weighs approximately 127 lb. He is an inside worker and he admitted that on a number of occasions he did not have breakfast. Whether he would have breakfast or not would depend on such factors as his appetite and his mood. He claims that he usually eats breakfast at home, but that on the road if he ate breakfast he would have to exceed the twenty-three dollars per day. He admitted that he used to eat meals with his fellow workers. Some of them ate breakfast and some did not. The Grievor also pointed out that even though he is an inside worker there are occasions when he has to move fairly heavy equipment. The job involves a good deal of physical activity. He is 30 years old and regards himself as having an average appetite. The Grievor was questioned by the Union Nominee on the Board and confirmed that prior to the November letter from Mr. English the notion of a personal daily average had never been presented to him as being regarded as "reasonable" by the Company.
Cindy Avery, a Clinical Dietician whose qualifications to give evidence were not seriously questioned, testified before the Board. She had been consulted by the Union and at its’ request had examined a menu which was in use at the Sea Echo Motel in Port aux Choix at the times in question. She referred to the Canada Food Guide which is a recommended way for eating for all the healthy Canadians. It gives a recommended serving from each of four groups of food which taken altogether, should provide a daily balanced diet.
She took the Canada Food Guide and applying it to the menu of the Sea Echo Motel came up with a suggested daily menu for days one to five which should basically meet the nutritional requirements of an adult Canadian. That suggested menu with prices is attached to this Award as an exhibit. The actual menu for that Motel is also attached. Using the menu as prepared by Miss Avery the average daily cost for the five days, including taxes and gratuities, amounted to some $29.07 per day. She produced another menu using as an example Hotel Gander and this produced a daily average of $29.04 but this did not include breakfast as no menu for that meal was available.
On cross-examination Miss Avery contended that the type of menu proposed is one which should be prepared for Canadian families. She admitted that this menu, although it should be the standard one is probably not. She admitted also that in examining the menu of the Sea Echo Motel she had not taken any food specials into account : When questioned closely by Counsel she admitted that the menu she had prepared was "probably not" the standard meal for most Canadians. The standard fare could probably be met in ways other than the manner in which she had prepared her sample menu. Other nutritional foods not mentioned in her menu could be cornbeef hash, cold plates, soups and sandwiches, meatballs, macaroni and cheese, fish and chips etc. She agreed that not always is the most nutritious food the most expensive. On further questioning she stated that the average caloric intake as recorded by the Canada Food Guide for a 30 year old Canadian male would be in the area of 3000 kilojoules. The menu she had planned would give the Grievor his recommended minimum daily nutritional standard.
R. Symonds, the Vice-President and General Manager of the Company gave evidence on behalf of the Company. He joined the Company some twenty-eight (28) years ago and about half of that time had been spent in Newfoundland. He has travelled extensively in the Province over the years. The Company provides telephone service essentially to rural Newfoundland has some three to four hundred (300-400) employees travelling extensively throughout the Province. He pointed out the escalating costs of travelling expenses over the years from a
prepared graph. He showed that, for example, in the year 1981 the Company was paying an average of $18.00 per person per day for meals. In 1982 the average was $21.00 and in 1983 it was $23.00. He stated that the Company in assessing what is reasonable takes certain factors into consideration. One of these is what amounts for meals were the employees on average claiming and paying. This varied by geographic areas. Also, the Company looked at what its’ other Newfoundland based counterparts in a similar setting were paying for meal expenses. The Company had looked at the meal costs or the per diems allowed by the Provincial Government, Newfoundland Light and Power and Newfoundland Telephone Company Limited. The Company used the experience of its’ own Management Personnel who had travelled extensively in Newfoundland as another factor in assessing the reasonableness of the claims of its’ employees.
Mr. Symonds stated that there were circumstances when an amount larger than $22.00 or $23.00 had been allowed. In areas where from experience, the Company feels that the ongoing average is not sufficient, a higher amount may be allowed. Sometimes if employees were forced to work virtually around the clock because of storm damage etc. higher amounts than normal are allowed.
The witness pointed out that the contract between the Newfoundland Telephone Company Limited and I.B.E.W. effective April 1st., 1981 to January 30th., 1983 called for a per diem allowance of $21.00 per day for meals. It should be noted here that the agreement allows expenses "incidential to lodging at $3.50 per lodging night". Employees are not required to eat at any particular establishment. As far as Mr. Symonds was concerned the amount which the Company considered reasonable were consistently applied throughout the Province allowing in some cases for individual variances because of an employee’s location etc. However, the figure of $23.00 per day was one which under normal circumstances would compensate employees for their meal costs. Some employees might claim slightly less while others might claim slightly more than the average of $23.00 per day. The figure of $23.00 per day was in his opinion consistent with Management’s own experience on the road and consistent also with the rates paid by other Companies. On occasions employees were warned that their meal claims were becoming excessive. The Company attempted to control the excessive growth of all expenses from time to time. He claimed that any extenuating circumstances about the employee, his work location or assignment can and has been taken into consideration. It was his contention that the amounts advanced by the Company for its’ employees for expenses were reasonable and that virtually all employees were living within the acceptable daily rate and were not themselves out of pocket.
On cross-examination Mr. Symonds insisted that its’ policy was flexible and changing to reflect current conditions. There are no guidelines as such and none have been published or circulated to the employees. The witness claimed that if there were areas or locations where at any one particular time the cost of meals exceeded the general average elsewhere, then such higher amounts would be paid. He pointed out for example that an employee one R. Hodge for 19 days in 1983 on the Northern Peninsula submitted a claim which averaged $24.68 and it was paid. He was not sure whether or not Mr. Hodge had been warned about claiming excessive meal allowances. He was adamant that for all areas and on all occasions the Company would consider paying in excess of $23.00 per day if it could be shown that such an amount was required by an employee for reasonable meal costs. He cited the example also of one Calvin Grandy who in St. Anthony in September of 1983 claimed and was paid $25.00 per day. This was allowed. Another employee John Hamilton in August of 1983 in Roddickton submitted on one occasion a daily cost for meals of $25.00 and this was paid.
On being questioned by the Union Representative of the Board the witness stated that in the case of employee Grandy there was no real evidence of prevailing rates in St. Anthony at that time. Also, of course, the Company looked at whether this was the first time the employee had submitted what the Company considered to be an excessive claim. In the St. Anthony case of course it may very well be that the individual involved may have been contacted or reprimanded about the claim. Chaulk’s claim had been approved earlier but later he was spoken to about it.
Mr. M. A. English is the Manager of Switching Systems. Among other things he deals with the expense accounts of employees. He has been with the Company or its’ predecessors some 33 years. He has travelled extensively all over the Province either as a member of the Bargaining Unit or as a Management Representative. He knows the Grievor and on one occasion prior to the Grievance, he had had a problem with the Grievor submitting what the Company considered to be an improper or excessive meal claim while he was working in Eastport a community some forty miles or so from Gander. A letter dated September 28., 1983 drew this to Mr. Chaulk’s attention. If the Grievor had had a reasonable explanation for the charges these explanations would have been taken into account. On another occasion when the Grievor put in a claim for lodgings outside of Gander but actually remained in Gander to deal with some problems at home, this charge was allowed although normally it would not be.
The witness testified that he had travelled in the Hawke’s Bay Area himself. There are restaurants other than the Sea Echo in the immediate area. He stated that in June of 1984 he himself had been there, and that the highest claim he had
submitted for food expenses had not exceeded $22.00 per day. He felt that he
had eaten well and had not in any way been poorly fed
The witness testified that at one time during the Fall of 1984 employees returning from Burgeo travelled late at night and had had extra meals. Their claims ranging from $28.00 - $30.00 were paid since an explanation had been given. Also, of course, emergency and overtime situations are taken into account. The witness put into evidence a chart outlining the daily meal claims of employees in the Hawke’s Bay Area in October and November of 1983. None of them was in excess of $23.00 per day while Chaulk’s for October was over $25.00 per day. Mr. Chaulk was written and told to bring his November account into line. It was not. The employees listed were a mixture of inside and outside workers. Mr. English mentioned that in the case of R. Benson, who had submitted a meal claim of $23.00 his immediate Supervisor was told to talk to him about his meal claims. Hodge’s meal claim of $24.68 was not submitted until January of 1984. Subsequently, both of these employees had meal claims reduced. As far as Grandy was concerned the witness did not know whether he had been spoken to about his meal claims or not. Hamilton’s account was not reduced but he was the only one in the Roddickton Area, and so the Company had no other employees with which to compare his expenditures. Mr. English mentioned that he had been told on a number of occasions by the Grievor that he generally did not eat breakfast while on the road. In fact the Company had a letter from the Grievor in which he stated this fact.
In cross-examination the witness admitted that different persons, of course, do have individual preferences for food, unequal appetites and different habits. The Company tries to enforce its’ policies equitably while trying to take into consideration any explanations employees may have for what the Company considers excessive meal costs. If any employee went over what the Company considered a reasonable amount for food, the account would not be reduced immediately but the employee would be written as was the Grievor.
Mr. English was questioned by the Union Nominee on the Board. He confirmed that the graphs presented were representative of the employees in any area at the time. No one was left off the chart who had claims higher than the Grievor. There were some claims which were lower which were not put on the chart. The witness insisted that claims are considered on an individual basis. The figures used on the charts are individual meal accounts and not really averages in the true mathematical sense of the word. The amounts which occur with the greatest frequency represent what in the final analysis the Company considers as being reasonable under the terms of the appropriate Article of the Collective Agreement.
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POSITION OF THE PARTIES :
The Union takes the position that there has been a breach of the Collective Agreement in that the Grievor did in fact submit actual and reasonable meal expenses, and these have been unilaterally reduced by the Company. The Union claims that the Company is not reasonable, but is in fact arbitrary in the manner is which it reviews meal expenses and sets Company policy. The spokesman for the Union points out that there are obviously areas of the Province where meal costs are either lower or higher than others. To set or use $23.00 as the upper limit of a daily meal claim is in itself arbitrary. The menu prices at Sea Echo Motel are in the opinion of the Union quite competitive when compared to other restaurants and motels and indeed are for example significantly lower than the prices at Hotel Gander. The menu for the Sea Echo Motel was placed into evidence.
The Union pointed out to the Board the meal claims of Grandy and Hamilton even though they were in excess of $25.00 were approved by the Company while in the Grievor’s case his claim was reduced to $23.00 per day. This indicates an inconsistency on the part of the Company in applying its’ so called policy.
It is the contention of the Union that there has been, in fact, a change in Company Policy, and that the Company has initiated a new rule which does not meet the new generally acceptable criteria set out in the K.V.P. COMPANY CASE. These criteria contain four principles which are (1) it (the rule) must not be inconsistent with the agreement ; (2) it must not be unreasonable ; (3) it must be clear and unequivocal ; (4) it must be brought to the attention of the employee affected before the Company can act upon it. The Union claims that the arbitrary imposition of a $23.00 ceiling on meal allowance violates the principle of its being consistent with the Collective Agreement. Only if a specific amount is capable of fulfilling the reasonableness requirements for virtually any situation, place or time, can this specific amount be invoked and executed with justification.
On the question of the rule being clear and unequivocal the Union claims that the Company’s telling Mr. Chaulk that he was $2.00 - $3.00 above the average does not satisfy this requirement. He should have been told of the specific mandatory ceiling. Also, there had been no consultation with the Union before the Company unilaterally imposed the rule. To this day there has been no promulgation of it. The Union quotes the then Professor Laskin that "a company may not promulgate an unreasonable rule and then punish employees who infringe it".
The Union contends that the meal costs submitted by the Grievor were reasonable and should be honored. It points out that other Collective Agreements placed in evidence indicate that the per diem allowances exceed in most cases the upper
limits designated by this Company. Surely, it says, this is an indication of the unreasonableness of the Company’s position. However, it may very well be that in any event, a negotiated per diem rate does not necessarily address the issue of reasonableness as explicity referred to in this Collective Agreement.
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The Union’s Representative at the Hearing reminded the Board of the evidence of the Dietician who stated that using the menu presented to her and taking into account the nutritional and caloric requirements of the Grievor, the daily average cost of meals amounted to $29.04 per day.
In summary then, the Union claims that the Company was in breach of the Collective Agreement in reducing the Grievor’s meal claim and that he sould be reimbursed for any amounts so deducted.
Counsel for the Company contended that as in most Grievances, the onus of discharging the burden of proof rests on the Grievor. While he referred to the fact that he stayed at the Sea Echo Motel and submitted a menu from that establishment, there is no conclusive evidence that the Grievor ate all of his meals there. There are other restaurants in the area where he may have very well have eaten some meals. The Board was not made aware of the cotss of meals at these establishments. The Company says that the Union should have presented evidence which would clearly show that the Grievor had eaten all of his meals at the Motel in order to be able to use the menu as evidence of his claim.
On the Union’s argument that a new rule had been unilaterally introduced by the Company, it argues that this is not the case. There is no new rule. It is merely the continued implementation by the Company of its’ policy to honor actual, reasonable and incurred expenses in the context of Article 21.1 of the Collective Agreement.
The Company argues that its’ treatment of the Grievor has been both fair and consistent. He has not been treated differently then anyone else. He was totally aware of the Company’s Policy and when asked for explanations failed to give them. If the Grievor felt that extenuating circumstances required his being allowed a bit above what is normally approved, why did he not indicate this to the Company ? The Company contends that in this case the evidence is clear that the Grievor did not keep actual track of his daily meal expenses, but made it up from memory after the fact.
Counsel for the Company argued that the policy of the Company in trying to establish what amount might be reasonable for employees to claim, was set after taking into consideration their own experience ; the claims already submitted by employees, and the per diem rates established by other Companies. Counsel argues that for us as a Board to say that the Company was unreasonable, we must find that there was some glaring departure from the norm and this is not the case here. Evidence shows that the Company kept in mind increasing food costs since the amounts paid from 1981 to 1983 increased from a daily average of $18.00 to $23.00. The Company, in the opinion of Counsel, took all of the relevant factors into consideration when assessing the Grievor’s food claims and properly determined them to be unreasonable. The Grievance should be denied.
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CONSIDERATIONS AND FINDINGS
A. P. Herbert observed in UNCOMMON LAWS, (1935) that "the common law of England has been laboriously built around a mythical figure - the figure of the ‘The Reasonable Man’." Both before and since Herbert penned those words, the concept of reasonableness has proved to be elusive, argumentative and incapable of precise definition of determination. What to one person is reasonable is to another totally unreasonable and each will argue his point of view with vehemence and certainty. It is as intangible as it is personal, and for an Arbitration Board to sit in judgement as this one does, presents a most difficult task. However, both by agreement and by statute, we are in that position and will attempt to make a final and binding Award on the matters in dispute.
Article 21.1 of the Agreement negotiated by the parties obligates the Company to allow employees who are away from their regular place of employment "actual, reasonable expenses (incurred)". Also, the Article provides that "if required", a reasonable amount of expense money will be advanced. Evidence showed that the practice was for the Company to advance to all of its’ employees who travelled from time to time an amount of money to be used for normal expenses. Consequently, the employees usually would have money on hand to use for expenses and then expense accounts would be submitted in the normal course of events. Nothing really turns of the question of the advancing of money. The whole issue is one of the reasonableness of the meal expenses allowed by the Company.
Despite the arguments raised at the Hearing by the Union Spokesman it is evident that this is not in any way a disciplinary question. The Company quite simply
deducted $28.00 from the expense claim of the Grievor for the month of November 1983 to bring his account into line with what it considered to be reasonable at the time.
Clearly, the onus is on the Grievor to satisfy this Board that he has discharged the burden which is upon him. He must show that the Company is in breach of Article 21.1 of the Collective Agreement by not allowing him "reasonable" meal expenses. For the party with the onus of proof to succeed the scale must tip in his favor (RE: ROBSON - LANG LEATHERS LIMITED (1973) 2 L.A.C. (2d) 400 (Hinnegan). As was pointed out in LADY GALT TOWELS LIMITED (1969) 20 L.A.C. 382 (Christie) it is generally accepted the Grievor has the ultimate burden to make out a breach of the Collective Agreement. And "the onus of proof in all cases rests primarily on him who asserts a claim to establish and prove it and not on the other side to disprove the claim". (RE: CYANAMID LIMITED (1959) 9 L.A.C. 353 (Schwenger). This approach has met with arbitral approval throughout the years and this Board sees no reason to depart from that norm. It is then for the Grievor to persuade us that the amount he has claimed for meal expenses is reasonable, and that the Company has breached the Agreement in not allowing him that amount.
At the Hearing there was considerable argument advanced on the natural question of what constitutes reasonableness in the assessing of food claims. Both the Union and the Company introduced into evidence certain Collective Agreements which presumably were being advanced as indicators of what these Companies and Unions considered to be reasonable living or travelling expenses. For example, The Terra Nova School Board under Article 31:01 of its’ Master Agreement has a maximum rate allowance for meals of $19.00 per day. This includes taxes and gratuities. Newfoundland Light and Power Company Limited and its’ Union operating under a Contract which expired September 30th., 1984 had a per diem meal allowance of $29.00 but this includes an "incidential allowance" of $5.00. Newfoundland Telephone Company Limited had a per diem meal allowance of $21.00 with expenses incidential to lodgings being shown as $3.50 per lodging night. The Public Service Alliance of Canada News Letter indicates that effective October 1st., 1983 ...... in consultation with the Alliance and other Public Service Unions authorizes total daily meal rates at $27.55 with an incidential expense allowance of $6.00 per day.
Both the Union and the Company were quoting the per diem rates of other Companies to advance its’ own argument of reasonableness. The Company, while of course obviously arguing that the amount which it considers "reasonable" cannot be construed as a "per diem" nevertheless, points to these per diems as one of the indicators it uses in assessing the accuracy of its own standard
of reasonableness. The Union argues of course that since in some cases, the per diems used here exceed the amounts claimed as being reasonable by this Company, that in fact these per diems are truly reflective of what are really reasonable meal allowances. With due respect to the position of both sides, the argumentative value of per diems in this case is, in our opinion, somewhat limited.
To try and equate negotiated per diem rates with a standard of reasonableness as referred to in this Collective Agreement is fallacious. Making such a comparison presupposes that all things are equal, and that value judgements can be made presuming if you will, a sort of status quo between the positions being compared. But obviously, the respective positions of this Union (i.e. employees) and this Company cannot validly be compared with for example either Newfoundland Telephone (and its’ Union) or the Government of Canada and P.S.A.C. Here the Collective Agreement speaks of actual and reasonable meal expenses while the other rates are true per diems. No one knows the variables that were present or the factors considered when the parties to the other Agreements negotiated their per diem rates. One supposes that logically the Union would not settle for less than "reasonable" meal allowances but who knows what concessions were made ? Who knows what trade-offs may have occurred ? What if the Bargaining Committee for the Union involved got a more lucrative Statutory Holiday or Vacation Package at the expense of the per diem rate or vice versa ? What if the Negotiating Team for the Union was cmprised of persons who did little or no travelling, and the personal impact of a small per diem allowance meant little or nothing to them ? Supposing the general membership of the Union which voted on the contract was composed of persons who travelled extensively. Would not a contract loaded in favor of travel expenses, mileage, meals, lodging etc. sway them more than their sedentary office brethern ? When one considers all of the imponderables which go into the negotiating of a per diem rate, the validity of its being used by either side as an indicator of "reasonableness" is questionable. One may be forgiven for musing, but the generalities for comparative purposes are far to great to have any probative value.
Article 2 of the Collective Agreement states that "the Union recognizes that it is the exclusive function of the Company to manage the business and to direct the working forces of the Company in a manner not inconsistent with the terms of this Agreement". It is then incumbent on the Company to do this within the framework of the Agreement and without breaching the standard of reasonableness anticipated by Article 21.1. How then can the Company determine if in fact an employee is submitting a "reasonable" expense account. We have already indicated that the per diem rates of other Companies may be an
imprecise or unreliable tool even though in this case the Company may indeed have considered it. Leaving that aside for the moment however, what other factors or components should be used in making an assessment.
The evidence discloses that the individuals who administered the expense account division of the Company are persons who are familiar with travel within and without the Province. Both Mr. Symonds and Mr. English "have come up through the ranks" so to speak. They have both travelled in the area which is in question here, and Mr. English in particular was in that area in the summer of 1984. At that time his daily claim for food was never in excess of $22.00 per day. This then, if it was not a tool used in formulating the food claim policy would be some indicator of whether or not the established guidelines were in line with actual food costs in the area. The evidence of Mr. English was uncontradicted and we must presume that when he says he ate well this evidence is to be believed. Granted, this was after the fact, but nevertheless it is we think fair to say that food costs did not decrease during that period. Indeed, the annual rate of inflation rose during that period, and while we do not have the statistics at hand it is doubtful that food escaped the general increase.
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Before proceeding further with an analysis of the Company’s actions in establishing guidelines, a comment on the evidence of the Dietician should be made. No one questions that the sample menus which she prepared were nutritious and within framework, correct. However, one wonders if it is not a bit Utopian to expect that the travelling members of this Bargaining Unit would in fact plan their weekly menus along those lines. There was certainly no evidence that they did. Indeed, the evidence was clear that the Grievor generally did not eat breakfast while on the road. That being the case, the applicability of Miss Avery’s sample is really doubtful. It is useful perhaps as a guide should in fact the employees indicate that they were desirous of following such a menu. Lacking that however, it is only indicative of the fact that a model employee eating model nutritional meals five days a week would in fact not be able to do it within the established cost guidelines. Also, of course, the sample menu presupposes that the Grievor ate every meal at the Motel. He did not do this. All in all, lacking direct evidence that the Grievor in fact followed such a menu, evidence of the Dietician is not particularly useful in helping us determine whether the Grievor’s claim for his food costs were reasonable within the meaning and intent of Article 21.1 of the Collective Agreement.
The Union has alleged that the Company unilaterally established a rule and that the implementation of that rule violated what it claims are the established arbitral guidelines set out in K.V.P. CASE 16 L.A.C. 73 (Robinson). On the question of managements’ right to make rules Brown and Beatty wrote in CANADA LABOR ARBITRATION (2d) P. 179
"Even where such rules do not form part of the agreement it is now generally accepted that in the absence of specific language to the contrary in the Collective Agreement the making of such rules lies within the prerogative or initiative of management and arbitrators have held this to be so whether or not an expressed management right clause exists reserving the right of management to direct the work force. However, the rule making power is neither absolute nor without limitations".
In RE: INTERNATIONAL NICKEL COMPANY OF CANADA LIMITED (1977) 14 L.A.C. (2d) (Shime) the arbitrator observed : -
"We are also of the view that the recent decisions of the Supreme Court of Canada .... require arbitrators to view the collective agreement not only as the boundaries of the bargain struck by two equal parties who became co-owners of the collective agreement and responsible for its administration but also as containing within these boundaries an implicit assumption that the terms and provisions of the agreement must be construed so as to operate reasonably and with good faith during the life of the collective agreement and this implicit assumption or reasonableness and good faith negates any theory which suggests that a collective agreement which must be fleshed out by arbitration is cast in the context of an implied management rights theory".
Did the Company in fact actually make a rule here and thus can the constraints referred to in the K.V.PO. CASE (supra) apply ? The Company categorically denies that it has in fact made such a unilateral rule. It insists that the claims of employees are looked at on an individual basis, and that explanations for variances are taken into consideration. In this case the letter from Mr. English to the Grievor on November 30th., 1983 stated that "a review of expenses for the Hawke’s Bay Region indicates that your account is running $2.00 to $3.00 above the others. I have however approved your October account for the amount submitted for the sixteen days you were at Hawke’s Bay. You are hereby instructed to submit your November account to be within the daily average for that area". Can such an "instruction" be construed as a rule ? We do not think so.
There were no published guidelines as existed in the earlier case decided by a Board chaired by Alcock in C.A.C.A.W. AND TERRA NOVA TELECOMMUNICATIONS INC. (unreported) October 12th., 1984. There, although the Board found on Page 40 that "whatever one may wish to call the employer’s instructions we are satisfied that the employer’s intent was to establish formal rules governing travel expenses". It went on to find that the requisites established in the K.V.P. CASE were formulated within a disciplinary context "a subject which the parties have placed beyond our jurisdiction to determine". This Board makes no finding as to whether it agrees with such a conclusion since we determine here that such a single general reference is hardly an attempt at either promulgating or attempting to enforce a Company rule. We consider rather that the Employer was perhaps rather obliquely advising the Grievor that under the circumtances his expense account for meals was not reasonable under the general prevailing claims for that area. In any event, the Grievor had earlier been advised by letter (September 28th., 1983) that "while working away from Headquarters you are entitled actual, reasonable out of pocket expenses". This Board is of the opinion that the sole matter for our determination is whether or not the Employer has breached the Collective Agreement by deciding that the claimed expenses of the Grievor were unreasonable in the context that reasonable is used in the Collective Agreement.
In this case the Employer used as a guide if you will to reasonableness, the submitted expense claims of other employees in the area. Almost without exception, the daily claims were less than the Grievor’s. Examples abound. In October of 1983 Sidney Billard claimed in the same area amounts ranging from a low of $18.50 to a high of $23.10. W. Brinston, a Foreman at St. Anthony from October 3rd., to 31st., claimed a low of $21.50 and a high of $22.95. D. Claxton, a Tester with the Company in Hawke’s Bay in Jackson’s Arm from October 3rd., to October 31st., claimed a low of $18.00 to a high of $23.00. In November in the same area he claimed a low of $16.50 to a high of $23.00. W. F. Dalson, a Manager with the Company for the days of November 14th., 15th., 16th., and 17th., claimed a low of $15.00 to a high of $22.00 A. R. Giles, a Lineman with the Company from October 3rd., to 31st., at St. Anthony claimed a low of $19.00 to a high of $22.00 Dan Hopkins, from October 3rd., to October 31st., in places ranging from Robert’s Arm, Springdale, Lewisporte and Bay d’Espoir claimed a low of $15.00 to a high of $23.00. A. J. Newhook, a Lineman from October 12th., to the 31st., in Lewisporte and Fairhaven claimed a low of $16.00 to a high of $22.00. S. White, a Lineman in areas from Deer Lake to Gambo from October 3rd., 1983 to October 31st. claimed from a low of $14.00 to a high of $22.00. David Noel, a Cable Splicer in Catalina and Wesleyville from October 3rd., to the 31st., claimed a low of $14.87 to a high of $22.30. The list goes on.
Obviously, the Company used these and other figures in coming to its determination that the upper limit for reasonable meal expenses should be somewhere around $23.00 per day. Is such a method of determining reasonableness considered with other factors, an acceptable one considered in the context of this Collective Agreement ? We have come to the conclusion that it is. Indeed, it is probably a fair way to do it. The evidence was uncontradicted that the Company looked at the individual claims and if they exceeded what it felt was reasonable the employees attention would be drawn to it. There was no evidence that the Company would not have responded favorably to an explanation. Indeed, the evidence was to the contrary. There were occasions when amounts in excess of what it considered normal, were allowed. Generally we feel that the application of the Company’s Policy was non-arbitrary and fair.
The Union has argued that the insistence of the Company on keeping meal claims at a certain level would, in itself, have the effect of lowering the average daily meal claim over a period of time. There was no evidence to support this, and it can only be regarded as speculative. If, in fact, there had been evidence that on numerous occasions directives had gone out to this effect then the argument may have had some merit. Absent that or other supporting evidence, the argument cannot really be sustained.
As earlier indicated, the onus is on the Grievor to show that he has tipped the scale in his favor. The Grievor did not satisfy this Board that under all the circumstances his meal claims were reasonable. Also, from a practical point of view it appears rather clear that using the menu which the Grievor supplied, one could eat reasonably well within the suggested guidelines which the other employees seem to have observed. Granted, one cannot accuse any of the employees of having indulged in costly Epicurean taste delights, but we are talking about rural Newfoundland restaurants not the Chateau Champlain in Montreal. We must also not forget that by his own admission, the Grievor quite frequently missed breakfast. While it can be argued that this would only increase his appetite for lunch and dinner, any evidence to that effect is merely speculative. And, if in fact the Grievor is seriously arguing that his actual and reasonable meal expenses totalled $25.03 for two months, surely the onus is on him to produce some more tangible evidence than the mere assertion that this is in fact the case.
The concept of reasonableness in this area is elusive. What to one person is reasonable is to another patently unreasonable. One person may possess a gargantuan appetite while another exists on virtually little. To one the delights of a meal of pork chops may far exceed the pleasures of savouring Coquille St. Jacques. Eating habits are varied and unpredicatable, and the ability of a
Company to determine what is a reasonable amount to allow is no doubt imprecise. Here however, we feel that the Company had made a determined and honest attempt to administer its policy within the confines of the Collective Agreement. The resolution of this matter by the Board will obviously not solve the problems that may occur in the future. We have dealt with an individual Grievance under specific circumstances. Hopefully, the parties will address themselves to a general application of our remarks in their future negotiations and jointly attempt to negotiate appropriate monetary ceilings as alluded to in RE: B.C. TELEPHONE CASE AND TELECOMMUNICATIONS WORKERS UNION 17 L.A.C. (2d) 211 at 212. Optimistically also, the words of that ultimate cynic George Bernard Shaw may not prove to be prophetic "the reasonable man adapts himself to the world ; the unreasonable man persists in trying to adapt the world to himself. Therefore, all progress depends on the unreasonable man". In summary we find that this Grievance is poorly founded and cannot under the circumstances succeed.
The Grievance is DENIED.
Dated this 22nd. day of March A.D. 1985.
GORDON G. EASTON, Q.C., CHAIRMAN
FREDERICK W. RUSSELL, COMPANY NOMINEE
DISSENT TO FOLLOW
WAYNE NOSEWORTHY, UNION NOMINEE
Draft forwarded to the Nominee on March 8th., 1985