Upload
others
View
6
Download
0
Embed Size (px)
Citation preview
IN THE MATTER OF SUMMARY DISPOSITION 07-2000
BETWEEN
BRITISH COLUMBIA MARITIME EMPLOYERS
ASSOCIATION
(The Association)
AND
INTERNATIONAL LONGSHORE AND WAREHOUSE
UNION, CANADA
(The Union)
Job Arbitrator: Ronald S. Keras
Counsel for the Association: Ms. L. Dianne Richards
Counsel for the Union: Mr. Albert Le Monnier
Witnesses:
Star Shipping Canada Mr. Terry Baily
Canadian Area President Mr. Tom Dufesne
Canadian Area 1st Vice President Mr. Bill Carrigan
Hearing: September 8, 2000
P ublished: September 15, 2000
The Union's pay claim read as follows:
It is ac
of the
wledged by the Association that on March 5, 2000 the crew
S tar Derby loaded directly on a truck a container of
gear. This is in violation of Article 26.01 (2) of the Collective
ement and a refusal to obey the order of Industry Arbitration
"Re-hearing of Summary Disposition #98-03" which. up-held the Job
Arbitrator's decision that such work was within the scope of the
Collective Agreement.
Article 26.01 describes dock work and 26.01 (2) reads as follows:
ilway cars, trucks, trailers, etc., within the
dock area.
The Union requests the arbitrator to order the Association and it's members to
cease and desist defying Summary
p ay the above mentioned Pay claim.
osition 03-98 and order the Association to
In their March 8, 2000 letter to the Association the Union sought "pay for a six (6)
men gang and a lift truck driver".
11
The facts were not in dispute. Mr. Baily testified that the crew removed 398 air
bags on March 5, 2000. Mr. Baily testified that the 398 used air bags were taken to
Universal Rope where they are recouped. He said Universal Rope has a Star
whose effect would have been to make the
socia withdrawal of a
puted work out
eek redress
stry Arbitrator therefore
t to the earlier decisions the Association ha
cisions.
ified to
chards testified to the tion's direction to member Employers at the
be us n bargaining uni
nt that was
not bargaining
work.
III
led
held by
attemp
_posal in May of 1999 subseque
The Union also argue
submitted no new evidence, which would point to an arbitral error.
arbitration as
to
award was clearly wrong.
4 of the
s appeare
portions of
le where "it" refers to carp-o. The
it co Asso
ented included such references and argument as they now make. The
Association argued that the Job Arbitrator should conclude that the loading and
unloading of ship's equipment is not bargaining unit work. In the alternate the
hat the Job Arbitrator find that the Association's interpretation
of the previous awards is the correct one and that they have been
previous awards.
ofAmerica, 5 L.A.C. 1797, June 20, 1954, Professor
The Association argued that their interpretation finds support in Summary
Disposition 09-98.
The parties submitted case law in support of their arguments.
III
There are a number of issues in the instant case. A major concern is the issue of
jurisdiction. The competing principles of finality with respect to the adjudication
of industrial disputes in recognition of the negative labour relations impact on
rehearing the same or a similar issue infiniturn and the unpalatable idea of having a
4(clearly wrong" decision stand against Collective Agreement provisions stating
that arbitral decisions must be consistent with the terms
nt have been discussed.
and Local 278C, Internati,
by the
Collective
: Brewer's Warehousing Company Limited
ion of Brewery, Flour, Cereal, Malt Yeast, Sqft
B ora, Laskin commented at page 1798:
It is not for one Board of Arbitration to refuse to follow the award of
another Board in a similar dispute between the same parties arising
out of the same Agreement where the dispute involves the
interpretation of the Agreement. Nonetheless, if the second Board has
the clear conviction that the first award is wrong, it is its duty to
determine the case before it on the principles that it believes are
applicable.
Professor Laskin's view of what may be described as competing principles are
found to remain authoritative today. (See Canadian Labour Arb Brown
and Beatty, 3rd edition, at 1:3000, and Re: Canadian Airlines International Ltd.
loyees, Airline Division, 32
February 25, 1993, H. D. Brown).
In Re: Federated Co-Operatives Ltd. and International Woodworkers ofAmer
Canada, Local 1-417, 59 L.A.C. (4'h) 30, October 21, 1996 Arbitrator McPhillips
commented at page 44 as follows:
To allow the Union to raise an argument in these proceedings that was
available to them in the previous hearing would be inappropriate in
ion. This would be a classic example of litigation by
Ilment. As stated above, finality in labour relations is critically
[portant and must be encouraged.
At the outset of this hearing the Job Arbitrator reserved on the jurisdiction issue
and heard the merits of the case. The Job Arbitrator was of the view that both
competing principles are key to the fair and efficient administration of the
Collective Agreement and as such an arbitrator has on. obligation to hear the parties
in c tances such as this.
On the merits, I have difficulty in reaching the same conclusion as the Association.
The Collective Agreement definition of truck reads as follows:
Any vehicle other than a car used for the purpose of conveying cargo
to or from ship loading terminals.
A rticle 1.03 reads as follows:
Agreement shall apply to all such persons employed and
despatched pursuant to the terms of this Agreement for the
performance of work in connection with the movement of inbound or
outbound cargo from the time it enters or leaves the dock, or with the
movement of cargo from the stow to release from conventional or
other ship's gear or vice versa, and so long as it remains at a dock and
control of a member of the Association covered by this
Agreement. Work in connection with the movement of such
outbound and inbound cargo shall include the operation of stationary
and mobile cargo handling devices and equipment; to or from railroad
trucks, trailers, other vehicles, barges or scows when any or all
of the foregoing are alongside within reach of conventional or other
gear and comes under the control of a member of the
Association covered by this Agreement up to the point at which
stowed in or discharged from a deepsea or coastwise vessel.
I don't believe the truck definition of "conveying cargo" is an exhaustive
description of a truck's functions nor can it be considered conclusive in terms of
defining bargaining unit work. I agree with the Union that such an interpretation
would not fit,, or be consistent with the following Art
which reads:
le 26 provision at page 70,
The Employers have the right to have trucks come under the hook to
heavy lifts, dunnage, lining material, long steal, booms and
and/or Ship to
44cargo". The interpretation
ciation is in clear co
1e 26 provision. Nor in my view can the definition
to eliminate work which is "'in connection with"
ion
t work. Ship's stores are typically delivered by truck.
Articl
41;cargo_,)
n the article the descriptive adjective
with" can not be ignored. It is used twice in the Article and arbitrators
must consider that the parties intended the phrase to have meaning. What does "in
connection with7 mean if not a term to expand the jurisdiction of bargaining unit
work to include work that is connected with the movement of cargo?
The Association "it" argument also made no accommodation for the term "in
connection with". I understood in Summary Disposition 03-98, and do now, that
the meaning of the Association's argued "its" is in reference to cargo. I felt that
not require interpretation in 03-98. The word was clear to me at the time.
I am unable to conclude now as then that where "it" (in Article 1.03) is in reference
to cargo that "it" somehow diminishes the meaning of "work in connection wiff',
after all, the term "work in connection witW' refers to work in connection with the
movement of "cargo".
The movement of equipment used to stow cargo is "work in connection
movement" ' (cargo).
Industry Arbitrator Munroe commented as follows in Re: Bri
Maritime Employers Association and International Longshore and Warehouse
(unreported) October 21, 1998
... I note firstly that Article 1.03 says that the collective agreement
applies to "...the performance of work in connection with the
movement of inbound or outbound cargo"; it does not say that the
collective agreement applies to "...the movement of inbound or
outbound cargo". I can-not presume that the phrase "in connection
with" is superfluous. That phrase certainly has its limits, but it does
add breadth to what otherwise would be a narrower formulation. As
recounted earlier in this award, the Job Arbitrator put the matter this
10
way: "The equipment in dispute has very much to do with the
movement of cargo." Expanding slightly on that observation, and
keeping within the frame of Article 26.01(2) as well as Article 1.03, 1
would say that the loading or unloading of ship's equipment between
vessel and truck, as was done on December 7, 1997 and March 17,
1998,, is connected with the movement of cargo such that it is
bargaining unit work.
I found no compelling evidence adduced or argument submitted that would cause
me to reach a different conclusion than the one I reached in Summary Disposition
03-98 or would cause me to disagree with the above comments of Industry
Arbitrator Munroe.
The Association argued that Summary Disposition 09-98 supported their alternate
Argument that only air bags removal which are to be returned to the ship during
same voyage are to be considered bargaining unit work. Summary Disposition
09-98 dealt with the provisions of Article 20. The instant case is pursuant to
Article 26. In Summary Disposition 09-98 the attachment or re attachment of
chains which were not needed to lash cargo during the vessel Virginia's port visit
were found not to be bargaining unit work. The attachment or re attachment of
chains used for lashing down cargo was found to be bargaining unit work. In the
instant case the removal of 398 air bags on March 5'" was from a vessel that would
remain in port until March 14t" or 1 5th.
Two factors distinguish the instant
Summary Disposition 09-98. All of
stances from those adjudicated in
ved 398 air bags which are recouped
a change in supplier or some other like occurrence, be used to secure
o if not on the Star Derby then on a subsequent visit to the west coast by
another Star Shipping Canada vessel. The reasoned conclusion is that at some
I I
efore makes their removal bargaining unit work.
lessor
ed concerning how Star Shipping Canada would know on
For the above reasons the U
ordered. The specific. quantum is referred to back the
ional question the Association had two previous
case heard. Ifie
-he courts if they wished to pursue such avenue. They had the
law I believ
ile I respect and concur with the "Professor
e , it
ob Arbitrator and
rits o
Dated in Vancouve itish Colum of September 2000.
Ronald S. Keras
Job Arbitrator 294
British ColumbiaMaritime EmployersAssociation
BCMEA 5 00 - 349 RAILWAY STREET, VANCOUVER, B.C. V6A 1A4 - TELEPHONE (604) 688-1155 - FAX (604) 684-2397
September 25, 2003
ILW'U-Canadian Area
20-1880 Triumph Street
Vancouver, BC
V5L IK3
Atte
Dear Sir:
Mr. Bob Ashton
L ongshore Contract Coordinator
Re: Summary Disposition # 07- 2000 dated Sep"ber 15, 2000
SEP 2 9 2003
C ANADA
This will confirm the Association's position relative to the aboNe Summary Disposition.
this case, as in the previous Industry Award, pertains to cargo handling equipment
which, as Job Arbitrator Keras puts it: "will be used as an integral part of securing cargo on the
west coast". As further described by Industry Arbitrator D. R. Munroe, the issue: "requires a
consideration of the relationship between Article 1.03 and Article 26.01 paragraph 2."
In the light of the foregoing and given the fact pattern at issue in Summary Disposition 0 7Z_ t, 1-2000
the Association will drop its appeal.
However, in doing so, the Association wishes to be clear that there are two specific fact patterns
that can clearly be distinguished from and therefore not covered by Summary Disposition 07 -
2000:
1. non-cargo handling ship's equipment-,, and
2 . ship's cargo handling equipment not utilized in west coast operations under the umbrella
of the BCMEA /fLNVU Collective Agreement - that i's to say equipment which is
serviced or re-certified in British Columbia.
It therefore follows that it is our position now, as before, in respect to the direct movement of the
above two cited items to or from vessel and truck and. vice versa - that such is not bargaining unit
work and is outside the scope of the Collective Agreement.
cc: LR Managers
File