CPR - IBEW BRENNENSTUHL

AWARD

This is a policy grievance concerning a claim by the Union with respect to the alleged failure of the Company to properly pay noonday meal expense claims submitted under the provisions of article 6.2 and 6.3 of the collective agreement. It is reflected in the Joint Statement of Issue filed at the hearing, which reads as follows:

JOINT STATEMENT OF ISSUE

Commencing in 2001, the Company has refused to pay employees’ personal expenses submitted under article 6.2 and 6.3 of Wage Agreement 1.

The Brotherhood advanced a policy grievance on behalf of all S&C Maintainers and Technicians whose claims submitted under Articles 6.2 and 6.3 were denied by the Company. The Brotherhood contends that the noonday meal expenses claims have been improperly denied. The Brotherhood contends that the Company’s refusal to pay these clams constitutes a breach of wage agreement 1. The Brotherhood maintains that the Company should pay the clams submitted under articles 6.2 and 6.3. The Brotherhood further maintains that its position is supported by past practice and is consistent with the changes negotiated in the 2001 bargaining.

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

At issue is the interpretation and meaning of Appendix 15 of the collective agreement, a provision newly negotiated in 2001, as it relates to the application of articles 6.2 and 6.3 and Appendix 15. Those provisions are as follows:

6.2 Employees taken off their assigned territories 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 bulletins will be allowed travel time and will be compensated for boarding and lodging expenses they necessarily incur. This Claus does not apply to Signal and Communication Technicians.

6.3 S&C Technicians and Signal Shop employees assigned to duties which require travelling away from their headquarters shall, while so assigned, be paid for their regularly assigned hours at headquarters and, in addition, for all time worked on proper authority outside the limits of such regularly assigned hours. They shall be paid reasonable expenses while away from their headquarters.

APPENDIX 15

NOON-DAY LUNCH AS PER ARTICLES 6.2 AND 6.3

July 26, 2001

…

Dear Sirs:

During negotiations the parties had extensive discussions in regards to the interpretation and application if Article 6.2 and 6.3 of the Collective Agreement.

The Company felt that over time the application of the Articles has changed from the original intent, which was to provide for additional expenses an employee may incur when assigned to work outside of their territory/headquarters. Where an employee starts and finishes the workday at his/her home location such employee is not incurring any additional expense for the noonday meal. Going forward these Articles will be applied as stated above.

Sincerely

(sgd) S. J. Samosinski

Director, Labour Relations

The Company’s submission to the Arbitrator contains a significant amount of history in relation to the application of article 6.2 of the collective agreement. It notes that from before the 1960s, until 2001, block (signal territory) signal maintainers, whose territory averaged twenty-five miles in length, and expanded to forty miles in the period 1994-1997, were never entitled to the payment of noonday meal expenses under article 6.2. Considerably larger territory was covered by signal maintainers who were assigned to non-signal territory and were frequently compelled to travel away overnight to work at remote locations, in which case they would be covered for expenses under article 6.2. In the period between the ‘60s and the ‘80s, significantly, when non-block signal maintainers were given trucks to travel to distant work areas, they were in fact paid for lunch expenses under article 6.2, even though they might not stay away overnight. It appears that that practice continued for them virtually until 2001. As a result, as the Company explains it, there was a disparate treatment of block and non-block S&C maintainers, as the non-block maintainers would be paid lunch claims, even in instances where they might remain on their own territory, but be compelled to be at some distance from home, although not staying away overnight.

It is clear that, as negotiations got under way in 2001 for the renewal of the collective agreement, one of the concerns of the Company was to correct what it viewed as an evolving misapplication of the noonday meal provisions of articles 6.2 and 6.3 of the collective agreement. Very simply, the Company took the position that if an employee left for work at the commencement of their tour of duty from their home or personal residence, performed a day’s work, whether on their own territory or another territory, and returned to their own home at the conclusion of their tour of duty they should be in no better position than any other employee, in any industry, who goes to work any day from their own personal residence and returns there at the end of the workday. In that circumstance, in the Company’s view, the employee should be expected to bring his or her own lunch or pay for a meal at any remote location should they choose to do so. It also appears that in areas other than Quebec the universal practice has been for employees to in fact take no more than twenty minutes for lunch, being compensated at overtime rates for the balance of forty minutes which would otherwise comprise part of their normal lunch hour.

At the bargaining table in 2001 the Company made it clear to the Union that it wished to put the noonday meal benefit at an end, for the purposes of article 6.2 and 6.3, save in those instances where an individual is in fact compelled to work away from their home residence overnight. That, in the Company’s view, was the original intent of the provision. The evidence before the Arbitrator confirms that during the course of negotiations, utilizing a federal mediator, the parties exchanged language with respect to dealing with the noonday meal. Appendix 15 is the ultimate language to which both of agreed.

The Union’s representative states, and the Arbitrator accepts, that it was not the intention of the Union to surrender the noonday meal benefit of articles 6.2 and 6.3. As its team interpreted the language of what is now Appendix 15 of the collective agreement, the reference to an employee starting and finishing the workday “… at his/her home location” must be taken to mean at the employee’s work headquarters. In the case of most non-block S&C maintainers that could easily be an office or tool depot in a particular rail yard which serves as their headquarters. In the result, in the Union’s interpretation of Appendix 15, the noonday meal would be payable, for example, if an employee travelled from his personal residence to a distant work location and returned to his or her personal home at the end of the working day, without reporting to the work headquarters, or at the least, in circumstances where it would have been impracticable for the individual to report to his or her work headquarters.

In addition, counsel for the Union submits to the Arbitrator the provisions of the Canada Labour Code which govern the general obligations of employers where lunch rooms or other meal locations are provided. Reference is made to a directive issued to Canadian National Railway by an officer of Human Resources Canada on July 9, 1996 requesting that that Company correct a situation said to be inconsistent with Part IX of the Canada Occupational Health and Safety Regulations, where an employee was compelled to take his meal in the service truck which he was operating.

The Arbitrator appreciates that the Union’s representatives, at the bargaining table, did not intend to surrender the interpretation of articles 6.2 and 6.3 which had been in effect for some time. However, it is not unusual to encounter situations in which the parties to a collective agreement sign on to particular language, while having very different views as to its meaning. In that circumstance it is no answer to say that there was no mutual intent, since the parties in fact did agree to a wording which becomes part of their collective agreement. It is for that reason that boards of arbitration, like the courts, tend to speak in terms of the intention of the contract, rather than the intention of either of the parties to the contract. In the case at hand it is the intention which most plausibly appears on the face of Appendix 15 which must govern in the resolution of this dispute.

Critical to this dispute is the phrase “Where an employee starts and finishes the workday at his/her home location …”. In that circumstance no allowance is payable for the noonday meal. From a practical standpoint it is difficult to see how that phrase, as viewed by the Union, would have any significant practical meaning in the day to day work performed by the employees who are part of this bargaining unit. It is common ground that it is not unusual for an employee to proceed from their place of residence to a remote location to perform work, returning either to their work headquarters or, in some cases, to their home at the end of the working day. By the nature of their work, in other words, it is not uncommon for S&C maintainers not to attend at their work headquarters at either the beginning or the end of their working day. The logic of using the work headquarters as the start and finish point for the purposes of Appendix 15 is therefore less than apparent.

It is also significant to note that the language of Appendix 15 make express mention of the original intention of articles 6.2 and 6.3 of the collective agreement as protecting employees in relation to “… additional expenses an employee may incur when assigned to work outside of their territory/headquarters.” Within the body of Appendix 15 the concept of “headquarters” appears to be understood to be different from the concept of an employee’s “home location”.

There are a number of articles in the collective agreement which suggest that the word “home” refers to an individual’s place of residence. That appears, for example, in article 2.11 which deals with crews working “a long distance from their homes” and being allowed “to go home.” Similarly, article 3.8 provides for a punitive overtime payment to be made if an employee’s call “… is cancelled prior to his leaving home.” Article 16.2, which deals with meals, provides: “When it cannot be done without in any way interfering with the work, employees shall be permitted to take meals at their homes. Article 19, which deals with attending court, provides reasonable expenses “… while away from home.” Similarly, Appendix 2 deals with motor vehicles being left “at home” in snow storm situations. Appendix 5 deals with weekend travel “… for traveling home” and provides, in part, that employees are entitled to weekend travel assistance on a pro-rated basis “… from his work location on one District to his home location on the other.”

In contrast, the word “headquarters” appears, in the context of the collective agreement, to relate to an employee’s basic work station or home terminal. That is reflected, for example, within the language of articles 6.2 and 6.3 which are the subject of this grievance. Similarly, article 7.8 deals with a rotating standby being in effect “at a headquarters location”. Article 8.1, dealing with seniority, refers to “position headquarters” for the purposes of establishing seniority territories. Article 8.4 deals with the posting of seniority lists “at the headquarters of all employees”. Article 9.01.3 provides for bulletins to be “available at the Headquarters of each employee” while article 9.01.4 provides that bulletins are to show “Headquarters location”. Article 15.4, which deals with training, provides for the payment of regular wages for trainees being required “to travel from their headquarters to the training location.” Article 16.4 obviously makes the difference between headquarters and an individual’s home, providing as follows:

S&C employees who, in order to protect their seniority, must occupy a bulletined temporary position at a headquarters location over 50 kilometres from their residence will be allowed a per diem allowance of $35.00 for each day worked at the location.

Article 18.12 provides that statutory holidays are to be granted on the basis of “… the location of their headquarters” even though they may actually work in more than one province. Further holiday pay provisions appear in article 8.13 dealing with “… employees who transfer their headquarters from one province to another …”.

On the whole, as reflected in the passages reviewed above, the collective agreement does make a clear distinction between an employee’s work headquarters and his or her home or residence. In that context the Arbitrator must share the view of the Company that the phrase “home location” utilized in Appendix 15 of the collective agreement must, on balance, be taken to mean an individual’s personal residence, as opposed to his or her work headquarters.

Does the foregoing interpretation visit a hardship on the employees? I think not. What Appendix 15 does is to place the employees in this bargaining unit in the same situation as most employees in other bargaining units within the railway industry, and indeed within other industries. It is not considered a hardship for an individual to make his or her own lunch arrangements on a work day which does not involve being away from home overnight. Where, on the other hand, an individual’s travel requires him or her to be away from home overnight in external accommodations, by the Company’s own admission at the arbitration hearing, that person will be entitled to reasonable meal expenses. That, for example, would apply to the case of employee Brian Strong. He grieved that he was called out to work at Moose Jaw at 12:15 a.m., being a three hour drive from his home. Having completed the required work at 4:30 he booked into a hotel. After awakening he had breakfast and did work at other locations until he returned home. It appears that because he returned to his home on the same day the Company initially viewed that his meal claim should be denied. At the hearing, the Company’s representatives undertook that that is an incorrect view, and that he should be paid reasonable expenses for the meals he incurred in that situation. On the whole, in other words, there does not appear to be any undue hardship visited upon the employees by the interpretation of Appendix 15 which is advanced by the Company, and which the Arbitrator is satisfied is correct. Conversely, obvious inequities as between the treatment of non-block and block territory S&C maintainers, and indeed between the employees of this bargaining unit and other employees generally, would result from the Union’s interpretation. I am satisfied that that is not the intention of Appendix 15.

For all of these reasons the grievance must be dismissed.

Dated at Ottawa this 19th day of December, 2007

_________________________________

MICHEL G. PICHER

ARBITRATOR