IN THE MATTER OF AN INDUSTRY ARBITRATION BETWEEN BRITISH COLUMBIA MARITIME EMPLOYERS ASSOCIATION AND

Transcription

1 IN THE MATTER OF AN INDUSTRY ARBITRATION BETWEEN BRITISH COLUMBIA MARITIME EMPLOYERS ASSOCIATION AND INTERNATIONAL LONGSHORE AND WAREHOUSE UNION CANADA (Re-hearing of Summary Disposition 05-99) Industry Arbitrator : Donald R. Munroe, Q.C. For the Association : Tony Genest For the Union : Al LeMonnier Date and place of hearing : March 12, 2002 Vancouver, B.C.

2 2 AWARD I I was constituted by the parties as the Industry Arbitrator under their collective agreement to conduct a re-hearing of Summary Disposition which was published by the Job Arbitrator on April 15, The re-hearing is on the application of the Association. At the commencement of the re-hearing on March 12, 2002, the Association briefly outlined the reasons why it says the Job Arbitrator ought to have disallowed the Union s pay claim. At the threshold, the Association says that the Job Arbitrator erred in his finding that the work in question was embraced by Article 1.03 in combination with Article 26; more particularly, that the Job Arbitrator erred in his conclusion that the work in question was in connection with the movement of inbound or outbound cargo from the time it enters or leaves the dock -- i.e., within the true meaning or intended application of those words as they appear in Article On the premise that the Job Arbitrator misconstrued or misapplied Article 1.03 as alleged, the Association then says that the sole adjudicative focus of this dispute is Article 26.01(9) which deals with regular maintenance work. In sum, the Association s position is that the only basis on which the Union s pay claim can properly succeed is upon a finding (which the Association says cannot be made) that the work in question was caught by Article 26.01(9). For reasons discussed at the outset of the re-hearing on March 12, 2002, the parties agreed to split the hearing. That is to say, the parties agreed that the

3 3 hearing that day would be limited to the question of whether the Job Arbitrator erred in finding that the work in question was within Union jurisdiction under Article 1.03, as read together with Article 26. As the Association stated at that time, if its position on that initial question is not accepted, that is the end of the matter. Put differently, the Association acknowledged that if the Job Arbitrator correctly interpreted and applied Article 1.03, the balance of the argument (and any necessary evidence with respect thereto) is immaterial. II The issue was put before the Job Arbitrator in the form of a Union pay claim. The Union s letter to the Association setting forth the pay claim was in the following terms: The Union has investigated Work performed by an outside contractor. They were assigned to sandblast and caulk the segregated dumper at Vancouver Wharves Ltd. The crew was witnessed to this on Saturday June 6, and Tuesday June 9. Five workers counted on each day and two workers on Wednesday June 10, 1998 for the caulking. This work was done for the purpose of cleaning and preparing the dumper for a different commodity, Urea instead of the agri commodity. This kind of work, sandblasting and caulking has been done by workers under the Collective Agreement in the past as it is in connection with the movement of cargo as per Article 1.03 of the Collective Agreement. The Union submits a pay claim for five (5) men at the Saturday 08:00 shift rate, five (5) men for Tuesday 08:00 shift rate and two (2) men for the Wednesday 08:00 shift rate.

4 4 On the evidence and arguments heard by him, the Job Arbitrator described the dispute between the parties as follows (Summary Disposition 05-99, pages 2-4): Association witnesses described the circumstances surrounding the work in question. The work in question was part of the process involved in preparing the dumper to the satisfaction of three entities including the Australian Quarantine and Inspection Service (AQIS). The process included a wider scope of work than the disputed work. ILWU members carried out other than the disputed work. This work was in preparation for what was hoped to be the final inspection by AQIS on June 15, This rather high level of scrutiny was due to a contaminated vessel from the Vancouver Port followed by an AQIS high risk designation for the port, notwithstanding that the vessel had not come from Vancouver Wharves, however, Vancouver Wharves also shipped agri products. June 17, 1998 was to be the first shipment from Vancouver to Australia of urea since the high risk designation. If Vancouver Wharves were successful they would be redesignated as low risk. Vancouver Wharves usual methods of cleaning away agricultural product to ready for urea, such as washing, high pressure washing, cleaning with hand tolls, etc., proved unsuccessful resulting in nine failed inspections. Vancouver Wharves then contracted BC Belting to fill/seal cracks in the dumper. That process was guaranteed by BC Belting, which guaranteed the work, provided they also did the preparatory work, which included sand blasting the area to be sealed. Union witnesses testified to their experience in sand blasting. Painters and labourers during their tenure on the waterfront had extensive experience in sand blasting. One witness estimated that 50 to 100 ILWU members were experienced in sand blasting. The Association did not dispute the qualifications of the Union witnesses. [Industry Arbitrator s Note: I was informed at the rehearing on March 12, 2002 that the Association, in the hearing before the Job Arbitrator, did not concede that work like the work in question had been regularly done by Union members.]

5 5 The issue was: Does the disputed work come under the jurisdiction of the Collective Agreement? Mr. LeMonnier, on behalf of the Union, argued that Article 1.03 included the disputed work as it was work in connection with the movement of cargo. The Union also argued that they had always done the cleaning work with respect to equipment used in the movement of cargo and that the Employer s witnesses confirmed that the disputed work was done for the purpose of moving cargo. Mr. Athwal, for the Association, argued that the sand blasting and sealant application was to meet quality control requirements, that it wasn t maintenance and that it was not the movement of cargo as specifically contemplated in Article 26 of the Collective Agreement. The Association argued that the Union must point to something in Article 26 to be successful and they did not. The Association pointed to Article 1.03, in particular, to what they described as the triggering provision from the time it enters the dock arguing that the disputed work took place days before the cargo entered the dock. The reasoning critical to the Job Arbitrator s finding that the work in question was bargaining unit work is found in the following passages at pages 10 and of Summary Disposition 05-99: Article 26 does not have to specifically mention cleaning if cleaning is typically a component necessary for the accomplishment of the work generally described by one or more sub clauses. Article 26 must be read in concert with Article 1.03 therefore each sub clause must be interpreted in a way that is wide enough to give meaning to the phrase in connection with. The general nature of the description of many of the sub clauses is in concert with a broader interpretation. A provision such as Loading or unloading railway cars, trucks, trailers, etc., within the dock area can not be considered to be an exhaustive list of duties associated with or in connection with the function of loading or unloading. Obviously that general function of loading and unloading often involves the operation of motorized equipment, the use of cranes

6 6 and other specific associated duties required to carry out the general function of loading or unloading. In the instant case the cleaning of the dumper is a specific duty associated with the loading of urea. The fact that the cleaning included sand blasting and caulking does not change it from a duty associated or in connection with with the loading of the urea. The Association also pointed to the Article 1.03 provision which limits bargaining unit work to work carried out with respect to cargo from the time it enters or leaves the dock. The Association argued that from the time it enters or leaves the dock means the disputed work was not Collective Agreement work as the cargo was not on the Employer s dock until well after the disputed work was accomplished. I find the Association argument to be a misinterpretation of the phrase. The phrase pertains to the actual movement of cargo, not to the preparatory work, which by its species is work done prior to the movement of cargo. In the instant case the preparatory work began days before the actual handling of the cargo. The plain reading of from the time it enters or leaves the dock allows the Employer to restrict the handling of the cargo by Collective Agreement employees to cargo that is on the Employer s site. III As I will shortly be reiterating, the Association takes issue with the Job Arbitrator s interpretation and application of the phrase in connection with as contained in Article 1.03, and the relationship drawn by the Job Arbitrator between Articles 1.03 and But the logical starting point on this re-hearing is the Association s argument that whatever might be the meaning of in connection with in Article 1.03, the whole of that provision has no possible application (either alone or alongside any other provision) until the inbound or outbound cargo actually enters the dock. That argument is important because, in the present case, the outbound cargo (urea) had not yet arrived at the dock when

7 7 the work in question (sandblasting and caulking of the segregated dumper) was performed by the contractor. For consistency, the Association would have to argue as well that the phrase in connection with as contained in Article 1.03, once invoked in the case of inbound cargo, ceases to have application in any circumstance upon the inbound cargo leaving the dock. I agree with the Job Arbitrator that the Association s argument misconstrues Article The words of Article 1.03 requiring examination are as follows: This Agreement shall apply to the performance of work in connection with the movement of inbound or outbound cargo from the time it enters or leaves the dock. Those words are perhaps awkwardly formulated. But in my view, the probable intention of those words is that the collective agreement would apply to the actual movement of inbound and outbound cargo within but not outside the employer s site, and to the performance of work in connection with such on-site cargo movement. It is entirely possible (and in my view, contemplated by Article 1.03) for longshore work integrally connected to on-site cargo movement to be done at the employer s location either prior to the cargo s arrival at the dock or subsequent to its departure. The parties cannot have intended that all such prearrival and post-departure work would automatically and in all instances be outside the jurisdictional ambit of Article In short, I concur with the Job Arbitrator s reasoning and conclusion on this first point.

8 8 IV I turn now to the Association s argument that the Job Arbitrator erred in his interpretation of the phrase in connection with as contained in Article 1.03, and his application thereof to the work in question. The Association begins by noting and emphasizing that the work in question was Dock Work (Article 26), not Deepsea Ship Work (Article 20). In the submission of the Association, that fact is significant because: firstly, Article 20 (Deepsea Ship Work) speaks to certain cleaning functions (see Article 20.01(7)), while Article 26 (Dock Work) does not specifically mention cleaning functions; and secondly, the introductory words of Article include the phrase in connection with, while the introductory words of Article 26 do not. The Association says, too, that at least by inference, the arbitral jurisprudence under Article 20 (Deepsea) ascribes very little (if any) importance to the phrase in connection with in Article And thus, says the Association, the Job Arbitrator s ruling on the Union s pay claim effectively modifies Article 26 by adding cleaning to the work functions therein enumerated; and/or effectively adds the phrase in connection with to the introductory words of Article 26.01, and then gives broader meaning to that phrase as read into that provision than has ever before been given to the same words in Article 20 where they actually appear. As the Association further argued the point, the Job Arbitrator s over-broad reading of Article 1.03, if accepted, would render parts of Article 26 redundant or superfluous. I do not think much significance can be attached to the presence of a cleaning provision in Article 20 (Deepsea), on the one hand, and the absence of a cleaning provision from Article 26 (Dock Work), on the other. In their origins, Deepsea Ship Work and Dock Work were the subject of separate

9 9 collective agreements. In that light, one must be cautious about drawing the interpretive inference suggested by the Association based solely or largely on a juxtaposing of Articles 20 and 26. Indeed, the need for such caution is demonstrated by a careful look at the cleaning provision found in Article 20 (see Article 20.01(7)). It is apparent on the face of that provision that its purpose is not as a commonplace identification of bargaining unit work, but rather to address rival work jurisdiction issues potentially arising in the particular context of Deepsea Ship Work. The same point was similarly made by the Job Arbitrator as follows at page 8 of the Summary Disposition which is the subject of this rehearing: The 1970 decision leaves no doubt with respect to cleaning in connection with the movement of cargo, however Article 20 applies to Deepsea Ship Work and the instant case deals with Dock Work. Article 26 does not specifically mention cleaning. The Article 20 reference to cleaning is with respect to containers on the ship Holds, Cargo Spaces and Tanks. The Article 20 cleaning provision might well be described as an exception provision to work, which would otherwise normally be the work of the ship s crew. In such context it is not particularly supportive of the tenet that for the disputed work to be bargaining unit work it must be specified in Article 26. As I have indicated, the Association argued that the phrase in connection with, as it appears in Article 20.01, has been accorded little if any signifcance in prior awards between these parties. On that footing, the Association moves to the argument that the Job Arbitrator in the present case not only modified Article by reading into that provision the phrase in connection with, but also assigned a meaning to the phrase, as thus read in, which was broader than its jurisprudential meaning in the provision in which it actually appears. However, as I have already commented, the Association s argumentative premise arises only or

10 10 mainly by inference. By that, I mean that the prior awards on which the Association relies for the argument just summarized do not squarely or cohesively address the intended meaning of the phrase in connection with as it appears in Article The Association s argument also sidesteps the Industry Arbitration Award dated October 21, 1998, in which it was said that the provisions of Article 26 (in that case, Article 26.01(2)) must be read together with Article There, the issue was whether the loading and unloading of ship s equipment (as therein described) is bargaining unit work within the meaning of the collective agreement. Ship s equipment is not itself cargo. Briefly, the Job Arbitrator had held (Summary Disposition 03-98) that the loading and unloading of ship s equipment was not excepted from Article 26.01; and that in the circumstances, the loading and unloading of ship s equipment was work in connection with the movement of inbound or outbound cargo within the meaning of Article In the result, the Job Arbitrator s finding was that the work was bargaining unit work. That finding was sustained in the ensuing Industry Arbitration Award. I quote the following extracts from that Award: The Job Arbitrator s reasoning on the issue of work jurisdiction is found at pages 3-8 of Summary Disposition Without adopting the entirety of the Job Arbitrator s reasoning, I do agree on balance with the conclusion reaching by the Job Arbitrator that the work done on December 4, 1997 and March 17, i.e., the work associated with the disputed pay claims -- is work covered by the collective agreement. The Association says, in effect, that Articles 1.03 and 26.01(2) must be read sequentially for present purposes; that is to say, that one must first satisfy the preconditions established by the former provision before moving on to consider the latter. I think the better proposition is that the two provisions must be read together: which is to say, the collective agreement must be read as a whole. Taking that course, 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

11 11 agreement applies to the movement of inbound or outbound cargo. I cannot 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 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, I 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 simply do not agree with the Association s argument based on prior awards that the phrase in connection with, as it relates to the determination of bargaining unit work, should effectively be ignored altogether, such that the collective agreement does not apply to the performance of any work outside [the] specific job functions in Article An acceptance of that argument would deny any vitality at all to the formulation of words in Article At the same time, I do think that the phrase in connection with, as it appears in Article 1.03 with implications for Article 26.01, ought to be fairly tightly construed. The phrase in connection with cannot become, in effect, a discrete or stand-alone category of Union jurisdiction. For the work in question to satisfy the in connection with test in Article 1.03, it must be closely and functionally integral to the movement of cargo from the time it enters or leaves the dock. I will frankly say that I have some discomfort with the Job Arbitrator s use of the phrase preparatory work at page 12 of Summary Disposition My discomfort (which in the circumstances may only be semantic) is because the phrase preparatory work potentially sets up a stand-alone jurisdictional category which may in some instances overshoot the true meaning of Article 1.03 and its relationship with Article I think a better expression of the in connection

12 12 with test is found at page 10 where the Job Arbitrator speaks of the disputed work being a component necessary for the accomplishment of the work generally described by one or more sub-clauses [of Article 26.01] ; and further observes that, In the instant case the cleaning of the dumper is a specific duty associated with the loading of urea. V In the result, I reach the same conclusion as did the Job Arbitrator and for essentially the same reasons. In my view, in the circumstances described by the Job Arbitrator at pages 2-4 of Summary Disposition 05-99, the sandblasting and caulking of the segregated dumper was bargaining unit work. It follows that the Summary Disposition is hereby affirmed. DATED THE 3rd DAY OF APRIL, DONALD R. MUNROE Donald R. Munroe, Q.C. Industry Arbitrator