AD HOC

AWARD

This grievance concerns a claim by the Union that the Company has failed to honour its obligation to compensate employees for meals incurred during a scheduled working day when the employees are in fact released from service early by reason of a banked hours arrangement. The Union maintains that the practice of the Company has been to pay for such meals, and that it reversed its practice with the coming into effect of the current collective agreement on October 1, 2001. It argues that the Company has violated the provisions of the collective agreement or, alternatively, that it should be estopped from changing what the Union maintains has been the consistent practice. The Company asserts that the practice has not been as the Union maintains, that the employees in question are properly compensated by way of travel allowance and that there has been no violation of the collective agreement.

The nature of the dispute is more succinctly outlined in the ex parte statements of issue filed by the parties which, respectively, read as follows:

UNION’S EX PARTE STATEMENT OF ISSUE:

For many years the Company has provided for or paid for a third meal on a work day for employees working away from home. This meal was provided or paid for whether or not the employees worked a full shift on this final day of their cycle (i.e. sometimes the employees were allowed to leave earlier to return home on account that they had made up their full working cycle – banking a few hours – earlier in the cycle). In some cases the employees would travel a great distance to return home. This early departure on the last working day of their cycle is permitted in practice and is in conformity with the collective agreement (i.e. see article 2.11.).

Recently, as a result of what the Company maintains was a material change in the language of the collective agreement, the Company, in certain Districts, decided that it will not pay for the third meal if an employee leaves the job site before supper in order to commence his or her trip home. If the employee either remains at the job site or remains at the away from home location on the last day of the cycle the employee either receives a meal or money in lieu of the third meal.

The Union disputes the Company’s interpretation of the effect of the change to the collective agreement. The Union submits that the only material criteria that was changed was that the payment (in Appendix A) is by way of Zones rather than kilometres.

The Union relies on the provisions of the collective agreement, past practice and the fact that the Company did not raise this new purported interpretation/practice at the bargaining table during negotiations for the current collective agreement. Accordingly, the Union maintains, inter alia, that the Company is estopped from asserting this interpretation (assuming it is even correct – which the Union denies) in this case. The Company’s new practice is inconsistent and in violation of the collective agreement and past practice.

The Union submits that the change to the collective agreement does not apply to the facts in this case (i.e. the change does not apply unless and until an employee is on a rest day). The Company disagrees with the Union’s position.

The Union relies upon past practice and the collective agreement (including but not limited to articles 6 and 16).

The Union seeks a declaration that the Company has violated the collective agreement, a cease and desist order, an order that the Company apply the terms of the collective agreement as argued by the Union in this case and an order that the Company make all affected employees whole.

COMPANY’S EX PARTE STATEMENT OF ISSUE:

The Company takes the position that members of construction crews are not entitled to a third meal while travelling home from a construction site, as nothing in the new collective agreement requires the Company to make this payment. The IBEW has failed to quote an article in the collective agreement that requires that the Company pay for a meal while commuting home. On the contrary, during the last round of negotiations the Company and the IBEW specifically agreed that employees not be entitled to a meal expense while commuting home.

The Brotherhood’s allegation that the Company has had a long-standing practice of paying for a third meal, while employees are commuting home, is inaccurate. Regardless, this issue was addressed at the last round of negotiations and the parties agreed that no meal expenses would be paid while commuting home.

The Company contends that employees are not entitled to a meal allowance while commuting home.

The Company requests that the grievance be denied in its entirety.

The material before the Arbitrator confirms that the construction crews who are the subject of this grievance work on agreed scheduled rotation systems. The rotations can be either four days on followed by three days off or, alternatively, eight days on followed by six days off. Under that system, by local agreement, employees can work more than then hours in a day, banking the extra hours worked to be applied against their last day of work. This enables them to leave the worksite early for their travel homeward. For example, employees scheduled to work four ten-hour days might in fact work twelve hours on the first three days and leave work after four hours on the fourth day. Under that arrangement, by agreement, they would not be paid any overtime, but would have the advantage of a shorter final day, with the opportunity to use the banked time for travel home. It does not appear disputed that the banking of hours under that arrangement is contemplated by article 2.11 of the collective agreement, with the system of work cycles being further established under article 2.12. They provide as follows:

2.11 Employees in S&C crews in order to get home for weekends and the men in the crew being agreeable may, upon request to the S&C Foreman and with the approval of the S&C Supervisor, work in excess of eight hours per day at the pro rata rate. Forty hours worked will constitute one work week. Any time worked over forty hours in any one week shall be considered as overtime. Where weekly trips cannot be arranged due to the crew working a long distance from their homes and arrangements are made for the crew to go home the second week, any time worked after the first forty-hour week will be considered as another work week and no overtime will be allowed until another forty hours have been worked.

2.12 The Company will have the ability to designate 8/6 and 4/3 work cycles for S&C crews. Where the Company established a 4/3 or 8/6 cycle, overtime will not be paid until an employee exceeds 40 hours, or 80 hours respectively during the cycle. The 8/6 cycle will preferably start on a Tuesday or Wednesday and the 4/3 cycle will preferably start on Monday or Tuesday, and the General Chairman will be consulted prior to any changes.

Appendix 5 of the collective agreement is a letter of understanding relating to the issue of weekend travel. It provides, among other things, for the payment of a travel allowance to employees for travel between their homes and their work site. Sub-paragraph 4 of the travel assistance provision states:

A travel allowance calculated using bus fares prevailing on August 1st each year. Zone calculations for travel allowance on scheduled days off (each direction) is as follows: …

There follows a table which establishes the allowance payable in relation to mileages travelled on a district basis. For example, an employee in District 3 (Prairie) travelling a distance of 301 to 400 kilometres will receive a travel allowance of $43.58. In District 2 (Eastern) the same distance will attract a payment of $53.27. The travel assistance portion of Appendix 5 also contains the following statement.

This allowance will cover all expenses incurred while travelling on scheduled days off.

It may be noted that the above-noted sentence was newly added to Appendix 5 in the collective agreement which came into effect on October 1, 2001.

There is no dispute before the Arbitrator, although the provisions of the collective agreement are less than clear, that the Company has consistently provided and continues to provide an allowance for meals for employees on construction gangs working away from home. Some reference is made to meals in articles 6.2 and 16.4 of the collective agreement. Whatever the collective agreement basis for the payment of meals may be, it appears agreed that while at work in a remote location employees are entitled to an allowance for three meals in a normal working day.

The parties diverge radically, however, with respect to what they maintain is the past practice. The Union’s representatives argue that prior to the introduction of the current collective agreement the Company practice had been to pay employees their allowance for the third meal on the final day of their working cycle in circumstances where in fact the employees may have worked a short day, and were in transit travelling homeward at what might otherwise have been the time they would have taken their third meal at work. Counsel for the Union stresses that it appears to have been only with the addition of the new language of appendix 5 of the collective agreement that what the Union characterizes as the Company’s new policy came into effect. In that regard the Arbitrator’s attention is directed to an e-mail which was provided to Union local chairmen from the Company, dated July 26, 2001 containing, in part, the following statement:

4) Any gang that works in extra time in during the rotation and leaves the site for home prior to 15:00 on the last day of the rotation will not get a supper meal.

The foregoing appears with a number of other items under the heading “With the ratification of the agreement effective Oct. 01 there will be a number of changes related to work related travel and expenses.”

Based in part on the foregoing communication and on information provided to its own representatives relating to the experience of some employees, apparently in district 3, the Union has concluded that the Company has implemented a change of policy. It did not, however, have present at the hearing witnesses who could attest to any general contrary policy whereby, on a national basis, the Company would previously have paid the supper allowance for an employee who might have left the worksite early on his last rotation day by reason of banked hours.

The Company, which did bring three witnesses, who are the Signals & Communications managers for three of the four districts in Canada, including District 3, maintains that in fact the practice has been entirely contrary to what the Union contends. Their evidence confirms that for many years, well before the introduction of the current collective agreement, it has never been the practice to accord to employees meal allowance for periods of travel to or from their work. Their evidence confirms that when employees have the benefit of banking hours on the work rotation system and leave work early on the last day of the rotation they have not, over a number of years, received payment for the meal which would have otherwise fallen during their regular working day. They relate that the long-standing practice has been to treat employees who leave early on their final rotation day as being effectively on a scheduled day off, and that the only compensation payable to them in that respect is their entitlement to travel allowance as provided under appendix 5 of the collective agreement.

According to the Company’s witnesses there is one partial exception to the practice as related above. They concede that one supervisor in District 3, the Prairie Region, has deviated from the general practice and appears, on occasion, to have approved payment of allowances for the third meal for employees who do no work through the third meal period on their final rotation day, but in fact are travelling home by reason of the benefit of their banked hours. Additionally, it does not appear disputed that employees, including employees who may have the benefit of banked hours, who do not travel home on their final rotation day, but stay at the work location do receive the allowance for the third meal on the final day of their rotation.

After a careful review of the collective agreement provisions related above, and the evidence adduced by the parties, the Arbitrator has considerable difficulty with the merits of the grievance as advanced by the Union. Bearing in mind that the Union has the onus of proof in this matter, the material placed before me falls considerably short of confirming what the Union claims to have been a broad and general practice of the Company with respect to the payment of the allowance for third meals for employees who are in fact travelling home after a short work day on the final day of their rotation because of the system which allows the banking of hours. Based on the more persuasive evidence adduced by the Company’s witnesses, I am compelled to conclude that, on the balance of probabilities, the overwhelming practice has in fact been to the contrary, and that on a virtually national basis the long standing practice of the Company has been to withhold payment of the allowance for the third meal when employees are in fact not at work, but are travelling home on the last day of their work rotation at or about the supper hour. That, moreover, would appear consistent with the clarifying note issued by the Company on July 26, 2001, quoted above, although it would appear to erroneously characterize the non-payment of the meal allowance as a change resulting from the new collective agreement. It is trite to say that it is the agreement and the related practice of the parties which must prevail over the erroneous statement of a Company or Union individual as reflected in an isolated written communication.

Nor is the Arbitrator persuaded that a similar written communication sent to S&C managers from the late supervisor, Rick Felstead, likewise falls substantially short of establishing a conscious change of policy on the part of the Company.

To be sure, the collective agreement is less than responsive to the fact situation which gives rise to this grievance. For example, as presently worded, appendix 5 would seem to limit the entitlement of employees to travel “on scheduled days off”. As the Company’s representative notes, if that language were strictly applied employees leaving the work site early on their final rotation day to travel home could arguably be disentitled to travel allowance. Neither party obviously intends such a result, and the long standing practice would appear to confirm that employees are deemed to be on their scheduled day off when they have the benefit of a shorter final working day by reason of the system that allows the banking of working hours. The material before me, however, establishes that for years the Company has not paid any meal allowance to individuals while they commute to and from work, as a normal rule. As a general matter, the disentitlement of employees to meal allowances while they have the benefit of a travel allowance, albeit in a different bargaining unit, has been the subject of prior arbitral comment (see CROA 3049). In my view to allow the instant grievance would result in a pyramiding of benefits not contemplated within the collective agreement.

For all of the foregoing reasons the Arbitrator is satisfied that the interpretation put forward by the Company is to be preferred to the interpretation argued by the Union. I find and declare that under the provisions of the collective agreement employees who are in receipt of travel allowance, and who are travelling home during the course of a shortened final day of their working rotation, by reason of banked hours, are not entitled a meal allowance for a meal which would fall during the period of their travel. For these reasons the grievance must be dismissed.

Dated at Toronto, this 17th day of March 2003

(original signed by) MICHEL G. PICHER

ARBITRATOR

AH 518