IN THE MATTER OF AN ARBITRATION

BETWEEN :

CN MARINE

- a n d -

INTERNATIONAL LONGSHOREMEN’S ASSOCIATION -

LOCAL 1259

IN THE MATTER OF AN ARBITRATION

BETWEEN :

CN Marine Inc.

herein called the COMPANY

- a n d -

International Longshoremen’s Association,

Local 1259

herein called the UNION

1. Although the grievance (Exhibit A/2 attached) is dated March 10, 1978, it appears from the evidence that the date with respect to the year is a typographical error and that the date of the formal grievance is more accurately March 10, 1979, arising from an incident on March 3, 1979 which the Union alleges was a violation of the collective agreement.

2. The merits of the grievance are not before me for the reason that the Company complied with the necessary requirements of arbitral jurisprudence in giving notice of its desire to raise a preliminary objection going to arbitrability. Thereupon the parties agreed that I will hear the preliminary issue and make an award thereon, the outcome of which will depend upon whether the grievance goes forward to be heard on its merits or fails because it is non-arbitrable under the provisions of the collective agreement.

3. The preliminary issue raised by the Company bears upon the provisions of Article 13.6 to Article 13.11 of the collective agreement, which follow :

13.6 A grievance not settled in this manner may be progressed as follows :

Step 1

Within 14 calendar days from cause of grievance the employee and/or the Recording Secretary may present the grievance in writing to the Terminal Manager who will give a decision as soon as possible but in any case within 14 calendar days of receipt of grievance.

Step 2

Within 14 calendar days of receiving decision under Step 1 the Recording Secretary may appeal in writing to the Manager Gulf Service. A decision will be rendered within 28 calendar days of receiving appeal.

Step 3

Within 28 calendar days of receiving decision under Step 2 the Recording Secretary may appeal in writing to the Director Industrial Relations. A decision will be rendered within 28 calendar days of receiving appeal.

13.7 A grievance concerning the discipline of an employee may be processed commencing with Step 2 of the Grievance Procedure within 14 calendar days of the date the employee is notified of the discipline.

13.8 The settlement of a dispute shall not under any circumstances involve retroactive pay beyond a period of 60 calendar days prior to the date that such grievance was submitted to the Operations Supervisor.

13.9 Where a grievance other than one based on a claim for unpaid wages is not progressed by the Union within the prescribed time limits the grievance will be considered to have been dropped. Where a decision with respect to such a grievance is not rendered by the appropriate officer of the Company within the prescribed time limits the grievance will be processed to the next step in the grievance procedure.

13.10 When a written grievance based on a claim for unpaid wages is not progressed by the Union within the prescribed time limits, it shall be considered as dropped. When the appropriate officer of the Company fails to render a decision with respect to such a claim for unpaid wages within the prescribed time limits, the claim will be paid. The application of this rule shall not constitute an interpretation of the Collective Agreement.

13.11 The time limits as provided under this Article may be extended by mutual agreement.

4. There is no dispute between the parties that there was a proper processing of Step 1. This was done by a letter dated March 10, 1978 (sic, 1979) by E. L. Keagan, Recording Secretary of the Local, to the Terminal Manager of the Company. On March 16, 1979, the Terminal Manager, Mr. MacLeod, on behalf of the Company, wrote Mr. Keagan, the Recording Secretary of the Union, denying the grievance.

5. Then enters Step 2 of the grievance procedure wherein lies the principal cause for the preliminary objection raised by the Company. The next action in pursuit of the grievance was taken on March 29, 1979. It is not argued before me that March 29, 1979 fails to fall within "14 calendar days of receiving decision under Step 1". What is argued by the Company is that the action was not taken by the Recording Secretary and that because the Recording Secretary failed to appeal to the Manager Gulf Service within the time limit, therefore, the grievance fails. The fact is that on March 29, 1979 a solicitor on behalf of the Union wrote the Manager, Gulf Service. The relevant letter follows :

EXHIBIT III

March 29, 1979

Mr. F.J. Broderick

Manager, Gulf Services

C. N. Marine

Port aux Basques

Newfoundland

Dear Sir :

RE : Grievance / Article 13.6, Agreement 17.1 - Payment of Overtime Shifts

I have been asked to write on behalf of I. L. A., Local 1259, North Sydney, with respect to the above noted grievance. I am given to understand by Mr. Keagan, recording secretary, that on March 3, 1979, thirteen men of I. L. A. Local 1259, were denied the opportunity of working an overtime shift because personnel at the terminal in North Sydney went against clearly established past practice with respect to the calling out of men for overtime shifts. Specifically, it has been the practice in past that men on the call-out list who had not worked a complete forty- hour week at the time their name came up for call for overtime were passed over in favour of the next man on the list who had completed a forty-hour week.

When more overtime became available, it was the practice to go back to those men on the list previously denied overtime to determine if they had completed a forty-hour work week and if so, they then would be given the overtime shift. The Company, I believe, has paid shifts for men entitled in this manner when through inadvertance, they were not called out for overtime shifts, which under the system they were entitled.

On March 3, of this year, thirteen men were available and expected to be called out for overtime shifts by the timekeeper at the terminal here ; however, management proceeded to continue on down the list without first going back to check if those men were now available for overtime work. This was clearly in breach of the practice adopted in the past and as set out in the paragraph above.

Mr. F.J. Broderick

Page 2

March 29, 1979

I would ask, therefore, that you consider payment of those thirteen shifts lost by the men because past practice in the matter had not been adherred to.

Your kind attention would be greatly appreciated.

Yours very truly,

MATHESON & KENNEDY

J. Reeves Matheson

JRM:jmk

cc: Mr. Ed. Keagan

5. On April 16, 1979 the Manager - Gulf Service responded to Solicitor Matheson with the following letter.

EXHIBIT IV

16 April 1979

Mr. J. Reeves Matheson

Matheson & Kennedy

Barristers, Solicitors, Notary Publics

P. O. Box 249

Glace Bay, N. S.

Dear Sir :

Thank you for your letter of 29 March 1979 re Grievance / Article 13.6, Agreement 17.1 on behalf of I.L.A. Local 1259, North Sydney, N.S.

Article 13.6, Agreement 17.1 between CN Marine Corporation and International Longshoremen’s Association - Local 1259 governing stevedores at North Sydney, N.S. clearly defines the grievance procedures. For this reason, I do not feel that it would be proper for me to depart from the procedures as outlined.

Yours truly,

F.J. Broderick

Manager - Gulf Service

P. O. Box 520

Port aux Basques, Nfld.

A0K 1C0

b.c.c. Mr. N. B. Price, Manager, Labour Relations, Moncton, N.B.

Mr. N. K. Hatcher, Employee Relations Officer, North Sydney, N.S.

Mr. G. J. MacLeod, Terminal Manager, North Sydney, N.S.

6. The flow of correspondence between Solicitor Matheson and Mr. Broderick continued. Mr. Matheson wrote on May 9, 1979 and May 15, 1979 attempting to advance the cause of the grievance for the Union. Mr. Broderick wrote Mr. Matheson on June 11, 1979 in part as follows :

Re your letter of May 15, 1979 and May 9, 1979 in connection with Grievance / Article 13.6, Agreement 17.1, Payment of Overtime Shifts.

Article 13.6, Agreement 17.1, I.L.A., Local 1259, North Sydney, N.S., reads as follows :

"Within 14 calendar days of receiving decision under Step 1, the Recording Secretary may appeal in writing to the Manager of Gulf Services. A decision will be rendered within 28 calendar days of receiving appeal". (Underlining by me)

For this reason, I do not feel it would be legal or proper for me to depart from procedures outlined in the contract between any Union or Brotherhood and the Company I represent.

The Company having decided to take objection to the manner of the processing of the grievance at Step 2 went about making known its objection in an appropriate manner by giving notice thereof to Mr. Matheson in this way.

7. There then followed a letter dated June 12, 1979 from Mr. Keagan, the Recording Secretary of the Union, to Mr. Broderick, Manager, Gulf Service of the Company, in which Mr. Keagan reviews the circumstances of the grief contained in the grievance, from the Union’s point of view. The position of the Company is that it is this letter of Mr. Keagan on June 12, 1979 which is the Union’s first attempt to comply with Step 2 of the grievance procedure and because it is some 74 days after the letter of March 16, 1979 from Terminal Manager MacLeod to Recording Secretary Keagan, the grievance is struck down by Article 13.10.

8. Considerable argument was developed at the hearing on the preliminary issue by both Mr. Price on behalf of the Company and Mr. Matheson on behalf of the Union on whether the words of the collective agreement are directory or mandatory, both with respect to the time limits for processing and also with respect to the person entitled to make the advances and responses for each party in the second step of the grievance processing.

9. The language which the parties have settled upon in Article 13.10 seems on its face to be capable of reasonable interpretation. That is to say that in the context of this issue, the operative effect of Article 13.10 is akin to a penalty provision in that without mutual agreement for the extension of the time limits as provided by Article 13.11, it would appear that if a lapse of 74 days occurred between Step 1 and Step 2, the grievance "shall be considered as dropped". I have both used and underlined the words in the preceding sentence with intent, having regard for the last sentence of Article 13.10 which provides, "The application of this rule shall not constitute an interpretation of the Collective Agreement". The notion that a so-called penalty provision may be agreed upon by the parties and incorporated in a collective agreement is for the obvious reason that the parties do not want grievances to grow stale but rather they desire to keep them moving forward in the process, assuming they continue to be unresolved.

10. The issue then in this preliminary objection really focuses upon the effect of Solicitor Matheson’s letter of March 29, 1979 and the words contained in Step 2 of Article 13.6 being, "the Recording Secretary may appeal in writing to the Manager Gulf Service". This action was taken "within 14 days of receiving decision under Step 1". It is the validity or otherwise of this action which becomes crucial to the outcome of the preliminary issue.

11. Step 2 clearly says the Recording Secretary may appeal in writing. It does not say the Recording Secretary shall appeal in writing. The obvious purpose is to choose some person who may tend to this grievance processing to give the whole matter regularity. Collective agreements which provide steps for the processing of grievances must choose various offices for the exchanges which are necessary to move the grievance forward e.g., foreman, shop steward, supervisor, general manager, superintendent, all of which are not uncommon designations in the grievance procedures of collective agreements. In this collective agreement, for example, Step 1 refers to the initiation by "the employee and/or the Recording Secretary". Article 13.10 refers to the progressing of a written grievance by "the Union". The specific reference to "the Union" in Article 13.10 refers in the broadest terms possible to progressing a grievance presumably by and through any person who is an agent of the Union and authorized to represent the Union. I do not read the plain words of Step 2 as saying the Recording Secretary shall in the sense of being the only person who must lodge the appeal, which is to say that at the minimum an agent on behalf of the Recording Secretary would clearly have the authority "to appeal" on behalf of and in the name of the Recording Secretary. In the context of Step 2 the Recording Secretary is the person chosen or designated to see the appeal is lodged if the grievance procedure is to be "progressed". This he does by and on behalf of the Union. In this he acts as an

agent of the Union. Again, in the context of industrial relations it would be a most unusual and generally unsatisfactory conclusion if a grievance failed on either side because the appropriate official chosen by the parties to make the next response were suddenly taken ill or out of the country on annual leave. So also if a Collective Agreement provided a grievance were to be lodged only by the employee, the arbitration process would be unduly strained if the employee were ill or if it were required to be in writing and the employee were unable to write. This sort of thing works both ways depending upon whether a grievance is being carried by the Union or the Company, as the case may be. However I am mindful of the fact that in the arbitration process the collective agreement is the last word and it is the obligation of the arbitrator to give effect to that which the parties have agreed upon and not to substitute, alter or amend the collective agreement by giving the words a meaning which they do not reasonably bear. In this case the letter of Solicitor Matheson of March 29, 1979 states that he has been asked "to write on behalf of I.L.A., Local 1529", which is the Union. He further relates his understanding of that which has been reported to him by "Mr. Keagan, Recording Secretary". He also refers to the grievance in the reference which he gives at the head of his letter. I see nothing in the language of Step 2 of Article 13.6 to prohibit the Recording Secretary from having an agent act on his behalf, any more than prohibiting the Manager, Gulf Service from having an agent respond on his behalf in the same step. Mr. Matheson’s letter lacks the technical sophistication of pronouncing that his letter is intended to represent the appeal provided by Step 2. Otherwise it amounts to substantial compliance with Step 2 and most important, it is within the time limitation. Timeless is not in dispute provided the letter otherwise satisfies the procedural requirements of the step. The Company is within its right to challenge the attempt at procedural compliance, as it has done in this instance, and to bring that issue forward for preliminary determination. In Article 13.6 the parties have quite properly chosen certain people to do certain things for the obvious reason of bringing some regularity to the proceedings so that all and sundry will not be messing around in the grievance procedure. Article 13.6 does not prohibit agents from representing the persons who are the designated office holders. The ultimate result of the entire exercise of this grievance procedure is to facilitate disputes to a successful resolution. It may seem unusual in this setting to find a lawyer entering the exchange so early in the steps of the grievance procedure. I do not think the language of the collective agreement phohibits this, provided the action is identified. In my judgment the identification is adequate by the language used in the reference to the grievance at the head of the letter and the opening lines in the beginning of the letter. For these reasons I find that there was compliance with the provisions of Step 2 of Article 13.6 and accordingly the grievance may go forward on its merits.

12. A W A R D

The decision and award is that the preliminary objection is dismissed.

13. The hearing was held in Sydney on February 12, 1980. The Company was represented by Nelson B. Price and with him, Harold Wilson, Gordon MacLeod, Norman Hatcher and H. D. Sorhaitz. The Union was represented by J. Reeves Matheson and with him, Ed. Keagan and Bill Morrison. At the hearing it was agreed that I have been properly appointed and have jurisdiction to deal with this matter. It was further agreed no transcript of the proceedings is required and none was made.

14. DATED February 25, 1980.

____________________________

Lorne O. Clarke

Arbitrator