IN THE MATTER OF AN ARBITRATION

AWARD

The Union grieves what it alleges is the failure of the Company to pay employee expenses when travelling on their scheduled days off. The issue is reflected in the ex parte statements of dispute and statements of issue filed by the parties. The Union’s version is as follows:

DISPUTE:

The Company’s refusal to pay employees’ expenses when travelling on their scheduled days off.

UNION’S STATEMENT OF ISSUE:

Commencing in 2001, the Company has refused to pay employees’ expenses when travelling on their normal scheduled days off.

The Brotherhood advanced a policy grievance on behalf of all employees whose claims under articles 6.1 and 6.2 were denied by the Company. The Brotherhood contends that the expense claims have been improperly denied to date.

The Company denies the Brotherhood’s contentions and declines the Brotherhood’s request.

The Company’s statement reads as follows:

DISPUTE:

The Company’s refusal to pay employees’ “expenses” when travelling on their scheduled days off.

COMPANY’S STATEMENT OF ISSUE:

In 2002 the Brotherhood advanced a policy grievance on behalf of all employees whose claims under articles 6.1 and 6.2 of Wage Agreement No. 1 were denied by the Company.

The Company contends: (1) that, as a preliminary matter, the grievance itself, Step 1 submitted in December of 2001, is rendered inarbitrable due to the inordinate delay in advancing the case to arbitration and as such the doctrine of laches must apply and the grievance must fail for that reason alone; (2) articles 6.1 and .2 of agreement no. 1 have absolutely no application to the case at hand; (3) Appendix 5 of wage agreement no. 1 provides clear and concise contract language directly relevant to the case at hand.

As is reflected in the foregoing, the Company has raised an objection to the arbitrability of this grievance. It maintains that in fact the grievance was first filed in 2001, and that it has effectively been abandoned by the Union or, alternatively, the Union should be prevented from proceeding with the grievance on the basis of the doctrine of laches. The Union counters that there were periodic discussions of the grievance over the years, such that the Company reasonably should have understood that it was not being set aside by the Union.

Given the disposition of this grievance on its merits, while the Arbitrator can appreciate the Company’s perspective of the handling of the grievance over time, I deem it unnecessary to make any ruling with respect to the issue of arbitrability.

The Union submits that although the instant grievance may have originated as a meal expenses claim for employee Vernon Irwin and employees who travelled to Thunder Bay on October 21, 2001, it has evolved into a larger dispute, relating to the Union’s claim that the Company has in fact failed to pay the expenses of employees travelling on days off in accordance with articles 6.1 and 6.2 of the collective agreement as well as Appendix 5, entitled Weekend Travel, which reads, in part, as follows:

Article 6 – Travelling on Orders of the Railway

6.1 Employees will be paid for time travelling in boarding and sleeping cars, on order of the Railway, under the following conditions only:

(i) During regular working hours; or

(ii) Between 0001 hours and 0600 hours provided the employees concerned have to work that day; or

(iii) Between 0600 and 2200 hours on a regularly assigned rest day or on a general holiday.

Payment under the foregoing conditions shall be at straight time.

When practicable to do so, boarding and sleeping cars shall be moved at times other than between 2300 hours and 0600 hours.

6.2 Employees taken off their assigned territory or regular boarding outfits, will be compensated for boarding and lodging expenses they necessarily incur. This will apply to employees (exclusive of block signal S&C maintainers in their assigned territory) when taken away from their assigned headquarters. Where temporary relief work is performed under the requirements of Clauses 9.06.01 and 9.06.02, employees taken off their assigned territory or regular boarding outfits under such bulletin will be allowed travel time and will be compensated for boarding and lodging expenses they necessarily incur. This Clause does not apply to Signal and Communication Technicians.

APPENDIX 5 – WEEKEND TRAVEL

…

The parties have concluded that a variety of means must be employed to assist the employees with weekend travel. The determination of the means to be applied in any given situation must rest with the appropriate Company Officers.

Qualification:

In order to qualify for weekend travel assistance, an employee must be required to work away from his home location on a regular basis (a minimum of five consecutive days prior to the start of the weekend). It is not the intention to provide weekend travel assistance to an employee holding a permanent position in one location who elects to live in another; however, there may be exceptional situations, such as lack of housing, etc., which may require that consideration be given to a weekend travel allowance in such situations. These situations must be authorized by the appropriate Company Officer in advance.

Travel Assistance

As mentioned above, the means to be used to assist employees with weekend travel will vary. The determination of which means will apply in each case rests with the appropriate Company Officers. The means that may be employed are:

1. Train Service

2 Company vehicles

3. Actual bus fares by way of tickets or passes provided by the Company

4. 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 chart referring to mileage travelled and amounts payable in the four districts of the Company’s operations, depending on distance.) Following the chart the following appears:

As per the zone schedule contained above, employees will receive a flat rate allowance for travelling within a 100 kilometre zone and/or through a series of 100 kilometre zones: The above zone schedule is for example of payment and is not limited to the maximum of 2,000 km.

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

The Company’s approach to its policy is not in dispute. When employees travel on their days off by train, in Company vehicles or by bus they receive no travel expenses beyond the payment of train and bus fares.

It is agreed that travel allowance is paid in keeping with the table provided under paragraph 4 when employees travel in their own vehicles, or the vehicle of another employee, on their scheduled days off. As noted by counsel for the Union, the table provided within the policy is not a form of compensation based on mileage. Rather, it is in the nature of an arbitrary allowance using a combination of standard bus fares and distance. Notably, it is payable to employees travelling in private vehicles whether or not they use their own vehicle or travel in another employee’s car or truck.

The Union questions how the Company can fail to pay the amounts provided for under paragraph 4 when an employee travels by some other mode, such as a Company vehicle or by train or bus. It submits that in any circumstance the Company should be providing the travel allowance provided within the table to employees who are compelled to travel on scheduled days off.

The Arbitrator has some difficulty with the Union’s argument given the overall structure of Appendix 5. Before turning to Appendix 5 it should be noted that article 6 has no clear application in the case at hand, being directed to the very separate and specific circumstance of time travelling in boarding and sleeping cars. No violation of either of those provisions is disclosed.

When regard is had to the whole of Appendix 5, it is less than clear to the Arbitrator that the Company effectively undertook to pay travel allowance based on the grid provided within the appendix in all situations of travel on scheduled days off. When specific regard is had to the paragraph under the heading “Travel Assistance” the agreement clearly contemplates that there are a number of alternative means which may apply in each case of travel on scheduled days off. Those alternative means are examined in turn, to indicate how employees will be assisted with weekend travel. It is notable, as stressed by the Company’s representatives, that the means to be used for travel is a decision which rests with the appropriate Company officers. It does not appear disputed that the Company’s approach has been applied over a number of years.

What is that approach? Very simply, there is no payment of travel allowance calculated within the meaning of paragraph 4 of Appendix 5 save when employees use personal vehicles for weekend travel. In other words, in the Company’s submission, the document posits four alternative ways employees can be assisted with weekend travel expenses. The first is the providing of train service, at the Company’s expense. The second is the furnishing of Company vehicles, again at the Company’s expense while the third involves the payment of bus fares by the Company, or the providing of bus passes. In the Arbitrator’s view, so understood, the separate provisions of paragraph 4 do, as the Company submits, relate solely to the alternative circumstance of employees using their vehicles. While there is obviously no ticketing or fare component to that travel, the grid under paragraph 4 fashions a form of monetary compensation for employees who travel in that way. Whether that formula is calculated as a means of assessing the contribution of an employee towards gas mileage or wear and tear on a vehicle is not apparent on the face of the document, and need not be analysed for the purposes of this award. Significantly, what the grid does indicate is a formula by which employees are to be paid travel allowance in other than travel by train, by Company vehicle or by bus.

It is trite to say that a board of arbitration must take the collective agreement as it finds it. If, as the Union alleges, there is an unfairness in the payment of monetary expenses only to employees who travel in personal vehicles that is a matter for the parties to negotiate, and not for an arbitrator to determine. What I am compelled to respect is the framework which the parties themselves have adopted within the content of Appendix 5 which, I am satisfied, clearly delineates four alternative means of travel, with the zone calculation of travel allowance payable only in the instance of employees utilizing private vehicles, whether their own or someone else’s, to travel on scheduled days off. It is in that circumstance, and only that circumstance, that travel allowance is payable.

It is also significant to realize the importance of the final sentence of Appendix 5 reproduced above. The statement “This allowance will cover all expenses incurred while travelling on scheduled days off.” is categorical in its meaning. There can be, very simply, no other payment contemplated, including the payment of meal allowances. That, indeed, is reflected in the award of this arbitrator in AH 518, a decision dated March 17, 2003. It was there found that the payment of meal allowance as claimed by the Union would, in light of the provisions of Appendix 5 of the collective agreement, be tantamount to the inappropriate pyramiding of benefits.

For the foregoing reasons the Arbitrator must conclude that the interpretation of the provisions of the collective agreement, and in particular the proper application of Appendix 5 followed by the Company, is correct. No violation of the collective agreement is disclosed in the circumstances of the instant case. Should the Union consider that the travel expenses formula contained within Appendix 5 of the collective agreement is not appropriate, that must be a matter for further bargaining.

The grievance must therefore be dismissed.

Dated at Ottawa this 21st day of December 2009.

_________________________________

MICHEL G. PICHER

ARBITRATOR