IN THE MATTER OF SUMMARY DISPOSITION BRITISH COLUMBIA MARITIME EMPLOYERS ASSOCIATION

Transcription

1 IN THE MATTER OF SUMMARY DISPOSITION BETWEEN: BRITISH COLUMBIA MARITIME EMPLOYERS ASSOCIATION THE ASSOCIATION AND: INTERNATIONAL LONGSHOREMEN'S AND WAREHOUSEMEN'S UNION, CANADIAN REGION THE UNION JOB ARBITRATOR (ALTERNATE): COUNSEL FOR THE ASSOCIATION: COUNSEL FOR THE UNION: IN ATTENDANCE: R.K. McDONALD MR. J.A. GENEST MR. AL LeMONNIER MR. KENT SMITH MR. JIM GIBNEY MR. MERRILL TURPIN MR. SCOTT BROWN MR. LEN OWENS MR. HOWIE STOHL MR. LES VIVIAN MR. ALEX MATIC DATE AND PLACE OF HEARING: October 5 & 6, 2000 Port Moody, B.C. DATE OF DECISION: October 16, 2000

2 AWARD The matter arose as a pay claim. At issue are the conflicting considerations of the preservation of bargaining unit work to members of the Union, as opposed to management's right to contract out non-bargaining unit work. The line of demarcation between the two may not be readily discernable. Aside from an interpretation and application of the Collective Agreement, the resolution of particular disputes may largely turn on a question of fact depending on the policies and practices of the particular worksite. The disputed work concerned the C-68 counterweight structure which is situate at the easterly end of a conveyor in the operations of Pacific Coast Terminals Co. Ltd. ("PCT"). At the commencement of the hearing, a view was taken of C-68. Towards the close of the first day of hearing, Mr. Genest applied for an adjournment to allow for additional evidence to be adduced. Mr. LeMonnier opposed the application out of concern for the preservation of a fair hearing. The objection was noted, the adjournment was granted, and the concern was not revisited. The Manager, Engineering and Maintenance, Kent R. Smith, for PCT provided a written description of what had transpired as follows: "During the unloading of a Sulphur unit train to storage on April 9 th, 2000 the cables suspending the counterweight for C-68 conveyor broke allowing the weight to fall to the ground. The result was considerable damage to the counterweight and the structure associated with it. From observing the damage, it would appear that one of the two cables suspending the weight broke allowing it to swing down and contact the guide structure. The resulting load placed on the remaining rope was in excess of its strength and the counterweight crashed to the ground. When the weight fell, it swung and damaged the guide members as it fell to the ground. When it landed, it landed upside down thereby damaging the hangar brackets on the top of the weight and breaking the footings for the guides. To replace the damage caused by this accident a contractor familiar with PCT and this type of work was summoned to repair the damage. Firstly the contractor had to remove several structural cross-members to allow access for the crane to

3 Page 2 remove the overturned weight. All of the damaged structural steel, including large portions of the counterweight guides, required replacement. Once the counterweight was removed from the tower, the hangar brackets were removed and replaced with new structure. Damage to the weight itself was repaired and missing concrete was replaced with epoxy grout. New steel and damaged portions of the weight were painted with epoxy paint. The take-up pulley frame was also damaged as it suffered a severe impact when the belt tension was suddenly let go. The frame was straightened and re-welded. Once the counterweight was repaired and re-assembled it was placed back within the tower. Damaged and/or removed bracing was re-instated with straightened and/or new structural steel. Next the weight was hoisted into place with a crane and connected to new cables and attachment hardware to once again provide tension to the conveyor. After the weight was hung and the structure reassembled, the ground below the weight was re-paved. The Collective Agreement in Article 26 - Dockwork (Except Coastwise) provides: Provisions - Descriptions Dockwork manually or by machine consists of: 9. Regular Maintenance Work (as described hereunder): Persons employed and despatched under this Agreement will perform Regular Maintenance Work, provided jointly rated employees are immediately available on the site or through the despatch system, and capable of performing such work. If employees are not available in the required rating(s), such work may be performed outside of this Agreement without prejudice to this position. Work required on new construction, new installation, significant alteration of existing structures or installations, or work under warranty, is not included in the term "Regular Maintenance Work". Such work may be performed outside this Agreement. Warranty work shall include removal and re-installation as required to validate the warranty. When Employers undertake to have any or all the above work performed, it will be done by employees covered by this Agreement except as otherwise provided herein. There was some evidence of past work practices both at PCT and elsewhere. I was referred to numerous decisions of the Industry Arbitrator and Job Arbitrator in the industry, which arbitrator Ronald S. Keras, has described as a body of industry jurisprudence "which can now be relied on". This is particularly the case where the applicable language of the Collective Agreement has remained consistent for a lengthy

4 Page 3 period of time. I think it appropriate to set forth excerpts from some of the authorities referred to, as follows: Industry Arbitrator, Jordan Guy, decision of October 9, 1970: Regular Maintenance work as defined in sub-paragraph 9 of paragraph of Article 26 of the Collective Agreement is limited in its application to maintenance work of a routine and continuing nature necessary to the proper and efficient day to day care, maintenance and repair of the plant and facilities of an employer covered by the Collective Agreement. Industry Arbitrator, G.E. McKee, decision of July 14, 1980: From the foregoing it is quite obvious to me that Dock Work under the Collective Agreement includes, inter alia as listed, regular maintenance work, not everything that can be classed as maintenance work out simply regular maintenance work, nothing more - nothing less (at pp. 5-6) Regarding the Union's contention that the said four cited types of work are "exceptions" to regular maintenance work and that everything in the way of maintenance work which is not excepted must be regular maintenance work, I do not accept such proposition for the reason that paragraph (9) is applicable to regular maintenance work only, not to maintenance work generally. (at p. 6) I note that nowhere in the subject paragraph (9), or in any other part of the Collective Agreement, is there a definition of "Regular Maintenance Work". In the circumstances the Parties have left the Industry Arbitrator, endeavouring to interpret the Collective Agreement as written, no alternative but to rely on his own research on the dictionary meaning of the words used in the Collective Agreement. I find that the word "regular" means "periodic", "recurrent", "routine" and that it also means "usual", "normal" and "ordinary". I find that the word "maintenance" means "repair" and that it also means "upkeep". (at pp. 6-7) I accept the Association's contention that the overall job to be performed at P.C.B. Terminals in October 1979 was a significant alteration of existing structures. I am of the opinion, however, from the evidence submitted and the testimony heard, that the work to be performed under item #3 of "Shed Systems" was the dismantling of a relatively short conveyor system, that is, work of the kind periodically yet ordinarily performed by Collective Agreement personnel

5 Page 4 during the course of their upkeep of the facilities. I am of the opinion also, from the evidence submitted and the testimony heard, that the work to be performed under item #4 of "Shed Systems" was the putting of one end of a conveyor system back to its previous configuration and function, that is, work of the kind periodically yet ordinarily performed by Collective Agreement personnel during the course of their upkeep of the facilities. (at p. 8; emphasis is mine) Industry Arbitrator, G.E. McKee, decision of October 13, 1980: I do not take issue with former Industry Arbitrator Jordan Guy's interpretation of the term "Regular Maintenance Work" (Exhibit "H", dated October 9, 1970), i.e. that such term applies to "maintenance work of a routine and continuing nature necessary to the proper and efficient day to day care, maintenance and repair of the plant and facilities of an employer ---". However, in my view he did not go far enough. It is my considered opinion that it is necessary to interpret each of the words "regular" and "maintenance" and then to apply them to the subject situation in a manner consistent with the provisions of the Collective Agreement (refer Exhibit "J", dated July 14, 1980). As stated in a previous Arbitration (Exhibit "J") my research elicited the fact that the word "regular" means "periodic", "recurrent", "routine", "usual", "normal" and "ordinary", and that the word "maintenance" means "repair" and "upkeep". Having interpreted the specific words in the Collective Agreement it is necessary to apply that interpretation to the particular circumstance. (at p. 4; emphasis in mine) The testimony of Mr. Brown and Mr. Metcalfe has convinced me that it has been practice for Collective Agreement employees of Western Stevedoring Co. at the Lynnterm shop to disassemble damaged machines on the site and after any component parts have been sent out of servicing and subsequently returned to the site, either as reconditioned or new replacement parts, for Collective Agreement employees to reassemble such machines on the site. (at p. 5) and found at page 6: that such work was Regular Maintenance Work within the meaning of the Collective Agreement, Industry Arbitrator, G.E. McKee, decision of December 16, 1985: This is another in a long line of disputes involving maintenance work. It seems to me that the main reason of the difficulty here is the fact that I.L.W.U. maintenance crew members are highly and widely skilled and from time to time

6 Page 5 they do perform types of maintenance work other than regular maintenance work with the result that they, and others, lose sight of the fact that the Collective Agreement covers regular maintenance work only - not all types of maintenance work. The fact that there are Collective Agreement persons available to and capable of performing a particular maintenance job does not, in itself, give them the right to demand such work. Neither does the fact that they did perform such maintenance work in the past give them such right. The key question is, "Is the maintenance work to be performed regular maintenance work?" If the answer to that question is in the affirmative the work is clearly under the Collective Agreement. If the answer is in the negative it is clearly open to the Employer to make other arrangements. (at p. 2) The Job Arbitrator erred as well, in my view, by ignoring the fact that the subject damage to Berth No. 5 occurred suddenly as a direct result of an accident, i.e. the accidental impact of a vessel against the dock (Exhibit 4). There was nothing regular, routine or usual about this job, in my opinion. Industry Arbitrator, Donald R. Munroe, Q.C., decision of July 8, 1999: Article 26.01(9) uses the phrase "regular maintenance work". Each of those three words requires individual consideration. The words "regular" and "maintenance" have been fully addressed in prior awards between these parties. However, the word "work" appears not before to have been separately scrutinized. And sometimes, a good starting point for the analysis of whether something is or is not "regular maintenance work" will be a determination of what comprises "the work" which is the subject of the dispute. Where that is the proper starting point, these two questions will arise: (1) Upon a reasonable and pragmatic view of the situation, whether each (or some or any) of the tasks being performed should be considered discretely or as an integral part of the broader piece of work; and (2) if the latter, whether the broader piece of work is one which more probably than not was intended by the parties to fall within the phrase "regular maintenance work" as contained in Article 26.01(9). Inferentially, that approach to the issue was taken by Industry Arbitrator McKee in his award dated July 14, 1980, although the analysis was more explicitly in relation to the words "regular" and "maintenance" (at pp. 5-6) In my view, "the work" which is here in contention must properly be viewed not as a series of discrete maintenance tasks, but as a unitary piece of work which was accurately described in evidence as the substantial rebuild of the East and West coal shiploader quadrants. These judgments are sometimes a matter of degree, but my further view is that "the work", thus characterized, was not of the "regular maintenance" variety. (at p. 8)

7 Page 6 POSITION OF THE PARTIES The Association maintained that the damage to C-68 was of a magnitude beyond the scope of what PCT would do on a maintenance basis. What was required in this instance was not upkeep but replacement, and PCT exercised its management discretion in deciding to engage a contractor to do the work. This was not work to keep the system running on an ongoing basis. The main damage was to the tower structure, which is in itself maintenance free. PCT made a business decision to "get up and running" where the scope of the work, requiring activity in a confined area, fell outside regular maintenance work. The Association led evidence that damage in the collapse of C-68 in 1994 was insignificant in comparison to what occurred in April In 1994, the counterweight simply fell, causing minor structural damage, and landed upright on the ground. As far as counterweights are concerned, C-68, erected in 1989, is probably the most complex on the waterfront in terms of its design and the tower structure surrounding it. A comparison of C-68 to counterweights found elsewhere, such as at Vancouver Wharves, would be a comparison of "apples and oranges". The Union maintained that the repair work required for C-68 due to the collapse of the counterweight has always been done by members of the Union under the Collective Agreement. The Union led evidence to establish that: During the repairs to C-68 following the collapse in 1994, Union forces were engaged to do much of the work. During the course of that work, 4 pendants and a platform were installed to facilitate maintenance.

8 Page 7 In the PCT C-3 counterweight collapse, in about 1997, an outside contractor reinstalled one structural beam while Union members did the rest of the work. Between approximately 1983 to 1998, there were 4 counterweight collapses at PCT, including C-68, C-3 and two others, where Union personnel were used to do the repair work. According to one witness, in the period 1987 to 1992 at Vancouver Wharves, there were close to 10 counterweight collapses where Union members did structural repairs and changed wire ropes. Outside contractors were not utilized. According to another witness, from 1988 to the present time, there have been about a dozen counterweight collapses at Vancouver Wharves, where repairs, including structural repairs, were done by Union members. Union members were used in the repair of collapsed counterweights in 1991 or 1992 at Neptune Terminals #41 conveyor, and in 1994, the #3 conveyor. DECISION On the evidence before me. I find that counterweights used in conveyor systems are of varying design and size. C-68 may properly be described as one of the most complex on this waterfront, which is apparent from its size, pulley system and its tower structure. No one witnessed the occurrence on April 9, 2000, leading to the failure of C-68. A reasonable theory is that one or more of the wire ropes parted due to corrosion and the remaining wire ropes were unable to sustain the load. As the counterweight tumbled downwards, it caused damage to the tower structure and then landed face down on the surface below.

9 Page 8 The collapse of C-68 caused the conveyor system to be "down" and the unloading of sulphur from railcars was halted. PCT was confronted with an emergency with railway demurrage in effect. In my view, the essence of the work necessitated by the collapse of C-68 from an overall perspective, was not to preserve but to restore the functioning of an existing system. This was not a planned or scheduled event. This was not an exercise in normal upkeep, routine or preventative maintenenance. It was more in the nature of reconstruction and restorative work. In these circumstances, I consider that PCT was entitled to exercise its management discretion in engaging a contractor to do the work, and in particular, the required structural work to the tower and pulley system. I note that the necessity for the presence of an outside contractor and crane to lift the counterweight was not a matter in dispute before me. In one sense, the collapse of C-68 was the result of a lapse or failure in preventative or regular maintenance work, which has since been recognized by PCT. Mr. Kent stated that the wire ropes and attachment hardware will now be replaced every three years. I consider that to be and would be regular maintenance work. In his testimony under cross-examination, Mr. Kent conceded that in the collapse of C-3 in about 1997, some of the work done was in the nature of regular maintenance work, such as replacement of wire ropes, sheaves and pulleys, checking and lubrication. This was also the work of Union members in the collapse of C-68 in I have determined that PCT were entitled to use a contractor to do the structural work arising from the collapse of C-68. Nevertheless, I also find that once the structural work had been completed and the counterweight was ready to be raised and re-positioned, Union members should have then been deployed to replace the wire ropes and attachment hardware, and connect the system to restore it to operation. To that limited extent, the pay claim must succeed. In this instance, I have not been influenced by the evidence led by the Union as to Union members doing structural maintenance work at

10 Page 9 other sites. In my view, depending on the circumstances, the proposition of regular maintenance work may have both temporal and topical or site aspects to it. In arriving at my conclusions in this matter, I have endeavored to recognize the realities of the worksite at PCT, which may well vary from other sites. The grievance is allowed in part only, as I have found that the replacement of wire ropes and attachment hardware, and reconnection of the system for the C-68 counterweight was regular maintenance work within the meaning of the Collective Agreement. DATED at West Vancouver, B.C. this 16th day of October, R.K. McDONALD