IN THE MATTER OF AN ARBITRATION
International Longshoremenís Association,
herein called the UNION
- a n d -
CN Marine Inc.
herein called the COMPANY
1. This reference to arbitration relates to a claim by the Union on behalf of 13 of its employees at the North Sydney location of the Company. The allegation is that these 13 employees should have been called out for overtime on March 3, 1979 and by the failure of the Company to do so, each grievor should be entitled to compensation at the rate of time and one-half for one shift. A photocopy of the grievance (Exhibit A/2) is attached.
2. The overtime provisions in the collective agreement are set forth in Article 6.
6.1 The overtime rate shall be one and one-half times the hourly rate, and will be paid for all time worked in excess of 8 hours on the minute basis continuous with, before or after, the regular assignment, except where such time worked results from :
(i) changes in shift starting times, or
(ii) the application of seniority rules, or
(iii) moving to or from the unassigned list
in which cases it shall be paid at the hourly rate.
6.2 It is recognized that overtime premiums shall not pyramid.
3. It will be observed from reading Article 6 that it makes no specific provision with respect to the manner to be followed by the Company in the scheduling of overtime. In fact the parties agree there is no specific provision in the collective agreement bearing upon the manner by which overtime shall be scheduled or distributed. This means that there is no article of the collective agreement which is really in dispute between the parties and to which they either seek interpretation or rely upon for the violation alleged by the Union.
4. The case being advanced by the Union is that during the negotiations of a collective agreement in Moncton in 1976 it was orally agreed by the negotiators of the same that where an employee was passed by for an overtime call, for whatever reason, he should be the first to be called for the next overtime assignment. Further, the Union alleges that this developed into a practice which was followed by the Company in the succeeding years. The evidence advanced by the Union is somewhat uncertain and unclear to me with respect to the specific occasions when this practice was alleged to have been followed and the frequency with which it was alleged to have been followed. The effect of the Union claim is first, to ask me to interpret and give effect to a "gentlemenís agreement" to which no reference is made in the collective agreement. Second, I am urged to accept the general statement that since 1976 the policy has been followed by the Company with a consistency which establishes a past and continuing practice so open and notorious that it has been accepted by both parties as though it were apart of the collective agreement.
5. The evidence and submission of the Company is that in the first place, no such gentlemenís agreement as is alleged by the Union was made between the parties in Moncton in November, 1976. Second, the Company denies the existence of any such past and continuing practice as the Union alleges. It further agrues that if such a practice did exist, it does not meet the standards of past practice as evidenced and developed through arbitral jurisprudence.
6. My first observation is that, like the parties, I am unable to find any provision in the collective agreement which bears upon the case being advanced by the Union and which calls for interpretation and adjudication. I first refer to Article 3 which is entitled RECOGNITION OF MANAGEMENT FUNCTIONS.
RECOGNITION OF MANAGEMENT FUNCTIONS
3.1 The Union acknowledges that it is the exclusive function of the Company to :
(a) maintain order, discipline and efficiency ;
(b) hire, direct, classify, transfer, promote, demote, discharge and suspend or otherwise discipline employees, and to increase or decrease working forces ;
(c) manage the operation in which the Company is engaged and without restricting the generality of the foregoing, to determine the work to be performed, the methods, processes and means of handling, and the schedules of work.
3.2 The Company agrees that these functions will be exercised in a manner not inconsistent with the terms of this Agreement.
The scheduling of overtime, in my judgment, clearly falls within the general provisions of Article 3.1(c). Next, the reader of the collective agreement turns to the other provisions of the collective agreement to determine if the procedures followed are inconsistent with any of the other provisions of the collective agreement which alter or amend the otherwise right of the Company to assign overtime. Article 6 is silent on this subject. There being no other provisions in the collective agreement which the parties have been able to find or to which they can refer me, it follows that Article 3 must prevail. The Company alleges the practice it followed for unassigned men, of which class all of the grievors were, was to begin calling men for overtime beginning with the tag number of the employee on the list next following the tag number of the last unassigned employee who worked overtime. Such a policy on its face would not appear to be discriminatory.
7. If such a policy as the Union alleges were in fact adopted and agreed upon in Moncton in November, 1976, I must observe that the current collective agreement which is before me and to which the parties have referred me was
signed in Moncton on September 28, 1979 so that the parties in a subsequently negotiated collective agreement did not see fit to incorporate and settle upon any specific language in the collective agreement with respect to the manner by which overtime was to be allotted, scheduled and distributed among the employees of this bargaining unit.
8. Article 14.6 of the collective agreement provides :
14.6 Disputes arising out of proposed changes in rates of pay, rules or working conditions, modifications in or additions to the scope of
the Agreement, are specifically excluded from the jurisdiction of the arbitrator, and he shall have no power to add to, or subtract from or modify any of the terms of the Agreement.
This article contains strong and explicit provisions. If I were to rule favourably upon that which the Union is urging, I would clearly be modifying or adding to the scope of the collective agreement, thus exceeding a jurisdiction "specifically excluded" from the arbitrator because the parties have said so. In case the first admonition to the arbitrator of specific exclusion of jurisdiction is overlooked, the parties have taken the trouble to repeat it in the same article (14.6). It appears to me the parties have spoken with extraordinary care and caution in specifying the lack of jurisdiction of the arbitrator to grant a grievance such as the setting in which this one is placed. I have no doubt that the words "the Agreement" in the context of Article 14.6 is meant to mean this collective agreement, which is to be taken as the total bargain made and recorded between the parties.
9. It is unnecessary for me to make specific case references to the observations which I have made in the proceeding paragraphs. The general proposition is well stated in Canadian Labour Arbitration by Brown and Beatty, beginning at page 44 and following.
The collective agreement is recognized as the fundamental source of the subject-matter that may come within the arbitratorís jurisdiction. Accordingly unless it grants a specific power to the arbitrator to "make the agreement for the parties" as opposed to "interpret and apply" it, arbitrators have held that they cannot do so. That is, an arbitrator whose jurisdiction is to be a "rights" arbitrator under a collective agreement cannot assume jurisdiction.