AH 298

IN THE MATTER OF AN ARBITRATION

BETWEEN:

CANADIAN NATIONAL RAILWAY COMPANY

(the "Company')

- and -

INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS,

SYSTEM COUNCIL NO. 11

GRIEVANCE RE ROOM ACCOMMODATION

ARBITRATOR: Michel G. Picher

APPEARING FOR THE COMPANY: M. Hughes - System Labour

Relations

Officer, Montreal

D.C. St. Cyr - Manager, Labour

Relations,

Montreal

D. Gignac - System Labour

Relations

Officer, Montreal

Y. Lemieux - Manager, S & C

Installations -

East, Montreal

D. Laurendeau - Regional Labour

Relations

Officer, Montreal

APPEARING FOR THE UNION: A.G. Cunningham - Senior System

General Chairman

J.E. Platt - International

Representative

A hearing in this matter was held in Montreal on January 27, 1992.

AWARD

This is a grievance in respect of reimbursement for overnight

accommodation expenses. The Union claims, on behalf of its members,

entitlement to single occupancy accommodation for employees required

to work away from their headquarters. The Company maintains that

reimbursement for double occupancy is reasonable in the

circumstances, having regard to the nature of the duties of the

employees involved. The parties to the dispute, dispute and joint

statement of issue filed at the hearing are as follows:

©b22rParties to the Dispute

The parties before the Arbitrator are the Canadian National

Railway Company, hereinafter referred to as the Company, and

the International Brotherhood of Electrical Workers,

hereinafter referred to as the Brotherhood.

The dispute referred to the Arbitrator involves employees

covered by Agreement 11.1 between the Company and the

Canadian Signals and Communications Union (now known as the

International Brotherhood of Electrical Workers, Council 11),

governing the services of S&C Foremen, S&C Senior

Technicians, S&C Technicians, S&C Testmen, S&C Leading

Maintainers, S&C Leading Mechanics, S&C Maintainers, S&C

Mechanics, S&C Assistants, S&C Linemen, S&C Apprentices and

S&C Helpers.

©b7rDispute

Certain employees were refused full reimbursement of expenses

for single occupancy room accommodations.

©b24rJoint Statement of Issue

The Brotherhood contends that under the provisions of Article

8 of Agreement 11.1 between the Canadian National Railway

Company and the International Brotherhood of Electrical

Workers, employees are entitled to the reimbursement of

single occupancy accommodation expenses.

The Company denies the Union's contentions.

There is no controversy as to the facts. The employees represented

by the Union are involved in the installation, inspection and

maintenance of the Company's signal and communication systems. A

substantial part of the work performed by the employees is,

necessarily, on the road, away from their headquarters. Article 8.2

of the collective agreement governs the entitlement of employees to

expenses for meals and lodging and provides as follows:

8.2 (a)

Employees required to remain away from their headquarters or

boarding cars overnight will be paid reasonable expenses for

meals and lodging which they necessarily incur.

(b)

Employees with no headquarters who are required to be absent

from their place of residence overnight will be paid

reasonable expenses for meals and lodging which they

necessarily incur.

The instant grievance arises as a result of a claim filed on the St.

Lawrence Region, when a number of employees of the Installation

Department submitted expense accounts for hotel accommodation

pursuant to article 8.2(b) claiming compensation for overnight

lodgings on the basis of single room occupancy. The Company states

that its policy, as regards the classification of employees

concerned, is to limit compensation for double occupancy, absent

extraordinary circumstances. This, it maintains, is in keeping with

the standard of "reasonable expenses" as contemplated in article 8.2.

It is common ground that as long ago as 1924 the Company supplied its

signals employees with boarding car accommodations. By the early

1970s these were known as the "red fleet" and "white fleet". The

red fleet consisted of former CN passenger cars converted to

accommodate eight employees, six of whom slept in bunk beds in the

same section of the car. White fleet accommodations are described as

more elaborate, having improved accommodations whereby employees were

lodged two to a bedroom, with six employees occupying a car with

three bedrooms.

The Company commenced to phase out the boarding car accommodations

for signals and communications employees on the St. Lawrence region

in or about 1972. Initially, thereafter, all employees, including

foremen, shared hotel or motel sleeping accommodations on the basis

of two employees per room. Over time, because the foreman was

required to perform paperwork in the evening after normal working

hours, the Company extended single occupancy to foremen in the

bargaining unit. That practice continues to the present. It is also

common ground that in the circumstance of one woman working in a

crew, single occupancy is also provided. In addition, where the

crew, with the exception of the foreman, is comprised of an odd

number of employees, one of the employees, presumably on the basis

of seniority, would be allowed single occupancy accommodation.

During the course of the hearing one further refinement of the

general practice emerged. The Company's representatives confirm

that under article 8.2 single occupancy accommodation is deemed a

reasonable expense for signals and communication testmen, whether

they are working alone or in the company of other employees. This,

it was explained, is deemed reasonable within the meaning of article

8.2 because of the paperwork and reports which |testmen are also

required to complete. Further, there appears to be little dispute

that single occupancy accommodation is provided to technicians,

leading maintainers and maintainers who, as a general rule, work

alone.

The Union's material, points, in part, to a letter of complaint,

filed by two testmen on the mountain region, dated December 10, 1991,

alleging that they were denied single occupancy accommodation by

reason of an alleged change in the Company's policy. While that

complaint is not part of the grievance before me, it would appear on

the face of the representations made by the Company at the hearing

that the general interpretation of article 8.2 which the Company

applies in respect of testmen would confirm that they are, indeed,

entitled to single occupancy accommodation. On the preponderance of

the evidence, however, a different conclusion is suggested with

respect to employees of the installation department below the rank of

foreman. There is no evidence, nor indeed any substantiated

representation, before the Arbitrator to suggest that single

accommodation has ever been the norm for those employees, save in the

exceptional circumstances described above.

As part of its submission the Union suggests that article 8.2 should

be interpreted in light of what it describes as the current

acceptable norm in Canada of single occupancy for employees required

to be away from home overnight. With that submission the arbitrator

has some difficulty. Firstly, within the railway industry, double

accommodation appears to have been the norm, not only within the

instant bargaining unit but within the bargaining unit of the

Brotherhood of Maintenance of Way Employees who work in similar

circumstances, albeit they perform different work. There is,

moreover, no evidence to substantiate a general practice within

Canadian industry to support the position argued by the Union. In

the Arbitrator's experience, apart from the instances cited above, in

many areas of employment, up to and including highly paid

professional athletes, double occupancy is the norm of overnight

accommodation unless otherwise specifically negotiated. Within the

railway industry, an example of such a negotiated provision is to be

found within the collective agreement between the Company and the

United Transportation Union, which represents employees in the

running trades. Article 51.9 of collective agreement 4.16 governing

those employees provides, in part, as follows:

51.9 (a)

When accommodations are to be provided en route, such

quarters shall be clean and sanitary. When available at the

location, single room occupancy shall be provided. In

determining the facilities where trainmen are to be

accommodated, preference win be given to accommodations where

eating facilities are available; when not available, the

Company will provide, arrange or reimburse the trainmen for

transportation to an eating facility at that location.

Claims for authorized transportation expenses must be

submitted on CN Form 3140B accompanied by receipts.

(emphasis added)

What, then, does the material before the Arbitrator disclose? The

evidence is uncontroverted that for many years the general practice

has been to provide double occupancy accommodation for employees in

the classification of the employees in the installation department,

on whose behalf the grievance has been progressed. There appears to

be no dispute that under the proper interpretation of article 8.2

foremen, technicians, leading maintainers, maintainers and testmen

are to be compensated at the rate for single occupancy accommodation.

There is, however, no evidence to support a practice, or a common

intention, that employees in the classifications of those who are the

subject of this grievance have ever been entitled to such

accommodation. On the contrary, long-standing practice points to the

opposite conclusion, namely that "reasonable expenses" for lodging

for such employees has, without apparent protest from the Union, for

many years been deemed to mean double occupancy accommodation, in

other than exceptional circumstances.

The general approach which is appropriate in a case of this kind is,

... As is well established in the prior decision of this

office, when a given interpretation of a collective agreement

has been knowingly applied between the parties, without

objection or grievance over a substantial number of years

spanning the renegotiation and renewal of the Collective

Agreement in unchanged terms, the parties are taken to accept

their established interpretation as part of their agreement,

and the union which has acquiesced in the interpretation so

applied cannot assert some different interpretation by means

of a grievance. By the renewal of the Collective Agreement

without change, in the knowledge of the interpretation

applied to Article 10 of the Job Security Agreement by the

Company over many years, the parties have effectively agreed

that interpretation into the terms of their collective

agreement. Any change with respect to the established

interpretation is a matter to be resolved in bargaining.

The Arbitrator is satisfied that the general practice, for many

years, which has been consistently acquiesced in by the Union, has

been for employees of the classification of those who initiated the

grievance to be compensated at the rates for double occupancy

accommodation. I am satisfied, for all of the reasons related, that

that is a reasonable interpretation and application of the language

of article 8.2 to the circumstances of the case at hand. It would,

in my view, require specific language, of the kind negotiated between

the United Transportation Union and the Company, to prove that the

parties intended some different interpretation or application of that

provision, save in the case of the higher classifications which are,

by the Company's own admission, entitled to single occupancy

accommodation.

For these reasons the grievance must be dismissed.

DATED at Toronto this 3rd day of February, 1992.

Michel G. Picher - Arbitrator