IN THE MATTER OF AN ARBITRATION
Association, Local 1259, hereinafter
called, "the Union"
of the one part,
- a n d -
CN Marine Inc., hereinafter
called, "the Company"
of the other part
PURSUANT to the terms of the Collective Agreement, the parties agreed upon Judge Nathan Green to act as an arbitrator in the matter of a dispute between the parties.
The Union was represented by Mr. Jack Campbell and the Company was represented by Mr. Nelson Price.
The parties agreed that the arbitrator was seised with jurisdiction and there were no preliminary objections.
The issue is to appropriate gang size for the M.V. "Sir Robert Bond" when used in Gulf Service replacing the M.V. "Marine Nautica".
Article 15 deals with gang size and reads as follows :
15.1 A gang to work cars shall consist of not less than 5 men except when handling prepalletized commodities when the gang shall consist of 2 men.
15.2 The Company shall have the right to redistribute all men within a gang as required throughout their tour of duty.
15.3 The Company shall have the right to increase the number of men employed in any gang.
15.4 The Company shall have the right to assign a gang to work cars only or a gang to work ships only, or both combined, as conditions may warrant.
15.5 A gang for the stern loading (auto service) operation on the M.V. "Ambrose Shea" shall consist of 11 men.
A gang for the loading operation on the M.V. "Ambrose Shea" (except for auto service above), shall consist of 19 men. When working both decks an additional 11 men shall be employed.
A gang for the loading and unloading of the M.V. "Marine Cruiser" shall consist of 11 men when handling auto traffic; 16 men when handling break-bulk traffic; and 19 men when handling tractor trailers.
15.6 When transhipping goods from shed or cars to containers or vice versa, a gang shall consist of 11 men.
15.7 When loading or unloading conventional vessels the following will apply:
(a) When working trolleys with two winches in operation, a combined gang shall consist of 21 men. When working trolleys with one winch in operation, a combined gang shall consist of 20 men.
(b) When vessels are being loaded or unloaded with the use of slings, from car to vessel or from vessel to car, a combined gang shall consist of men.
(c) When handling palletized commodity, gang shall consist of 16 men.
15.8 In unloading containers from cars and in shed, or taking containers from shed for loading on cars, a gang shall consist of . . . men.
15.9 When unloading cars to pallets in shed a gang shall consist of 11 men.
15.10 The tie-down gang on the M.V. "Frederick Carter", M.V. Sir Robert Bond", and "John Hamilton Gray", shall consist of a minimum of 8 men. These men may be from the regularly assigned shed specified in Article 15.6.
15.11 The Company shall have the right to use large gangs into smaller gangs other than spare men if necessary to produce specified minimum gang sizes.
15.12 When loading or unloading piggyback units to or from cars, a gang shall consist of . . . men.
15.13 Gangs for the M.V. "Marine Nautica", "Marine Atlantica", and "Stena Nordica", on the basis of present method of operation, shall be of 20 men for the main deck and 17 men for the second deck, except as provided in Article 15.14.
14.4 Where, on the M.V. "Marine Nautica", "Marine Atlantica" or "Stena Nordica", a tie-down is restricted to not more than 15 piggyback or Mafi units on the main deck, a single gang of 31 men shall apply for the entire vessel in all modes of operation.
14.5 In the event that ROLOC equipment is introduced, the gang sizes specified in Articles 15.13 and 15.14 shall be utilized initially, but such gangs shall be recognized as tentative. After 10 days of regular ROLOC operation (i.e. after ROLOC has been utilized on any 10 days to the exclusion of the stands) the parties shall meet within a further 21 calendar days, with the object of reaching agreement on final ROLOC gang sizes. If full agreement is not reached within a period of 21 calendar days from date of their first meeting, the matter shall be referred to a single arbitrator who shall fix the final ROLOC gang size(s). The arbitratorís decision shall be final and binding. The principles of Articles 14.4, 14.5, 14.7, 14.8 and 14.9 shall apply.
14.7 A gang for the container operation on the top deck of the M.V. "Frederick Carter", shall consist of 18 men, except where, in removing containers directly from cars, a forklift other than the heavy lifts is employed. In this situation 19 men shall be employed.
The Company made a decision in the Fall of 1977 to utilize ROLOC equipment on ships in the Gulf Service in the operation between North Sydney and Port aux Basques. The ROLOC was actually introduced on the 28th of May 1980 and the parties attempted to reach some consensus on gang size but were unsuccessful and the matter went to arbitration before the present Arbitrator, first on two preliminary issues, on the 6th of November 1980 and the second on the 13th of December 1980 and a final award, dated the 14th of January 1981, was handed down by the Arbitrator, which provided for gangs of 14, 12 and 22 to be substituted in place of 20, 17, and 31 respectively in Article 15.13 and 15.14 of the Agreement.
At this hearing the Arbitrator was advised that the Company had proceeded to discuss with the Union the revised gang sizes which would be implemented on the 19th of April 1981 and meetings were held in January to discuss the implementation of the Award in the manpower situation. The parties concluded a draft Memorandum of Agreement which has not yet been executed.
In April 1981 the M.V. "Sir Robert Bond" which when used in Gulf Service is normally utilized as a rail car ferry, was designated to operate replacing the M.V. "Marine Nautica" (an auto/truck ferry), while undergoing refit. On the 20th of April 1981 the "Bond" commenced to operate in the Gulf Service replacing the "Nautica" and continued to do so until the 17th of May 1981. During this period the Company employed a gang of 14 men to work the "Bond".
The Unionís contention is that there is no reference whatsoever to the "Sir Robert Bond" in the terms of the collective agreement that the Arbitration Award handed down on the 14th of January 1981 dealt only with the three vessels, M.V. "Marine Nautica", "Marine Atlantica", and "Stena Nordica" and that the number of men which should have been employed to work that ship, during that period, was 19, which the Union says was the past practice when that vessel was worked.
There was considerable discussion whether the numbers, when the vessel had been previously worked was 19 or 20, the Union contends it was 19 but there was a 20th man which was placed in the yard, who dealt with vehicles which were on legs, as a runner. The Union contends that this man was put on and added to the gang as a convenience for the Company but the regular practice, as far as the Union was concerned, was a 19 man gang.
The Company contends that it was 20. However, that is really a sine que non to the basic issue, which is whether or not the Company can work the "Bond" with 14 men when it is being used in a ROLOC operation. It is the contention of the Company that the Award of the Arbitrator dealth with "the establishment of appropriate gang sizes for operations utilizing ROLOC equipment". The Union agrees that this is so but that it is limited to the three vessels named in 15.14 which does not include "the Bond".
Simply put, it is the Unionís contention that the Company failed to protect itself in preparing the agreement to provide for alternate ships, other than those named, in the Collective Agreement and as such the Agreement is limited to those vessels alone and where no reference had been made the manning provisions should be those of the past practice of using that vessel, i.e. 19.
The Arbitratorís jurisdiction is determined by the wording in the Agreement. The Arbitrator has no inherent jurisdiction to add or to detract from, or vary the terms of the Collective Agreement. A principle which has been enunciated in endless number of cases. One must begin with that factor. The fundamental objective in interpreting the terms of a Collective Agreement to discover the intention of the parties, the written declaration of whose mind it is always considered to be. Consequently the construction must be as near to the minds of the apparent interest of the parties as is possible. The intention must be gathered in the written instrument. The function of the Court is to ascertain what the parties meant by the words they have used ; to declare the meaning of what is written in the instrument, not of what was intended to have been written ; to give effect to the intention as expressed.
The foregoing is a basic statement of the fundamental approach to the construction of any collective agreement. Thus in determining the intention of the parties the cardinal principle and presumption is that the parties are assumed to have intended what they have said and that the meaning of the collective agreement is to be sought in the agreement itself.
A second principle which must be recognized where the parties have been explicit is that one cannot draw generalizations from the words used which would extend the jurisdiction of the arbitrator, a principle founded on the Latin Maxim "expressio unius exclusio alterius". This phrase "expressio unius exclusio alterius" enunciates the obvious proposition, the general word or phrase takes its colour, as well, from the specific word or phrases which follow it as from those which precede it and the expressed usage of the explicitly named vessel excludes any generalization as is suggested by any substitute vessel. Certainly if the parties
had intended that ROLOC would apply to all and any vessels that the Company chose to put on the service they could, one would have expected, have said so but they did not. It certainly might sound reasonable and logical to suggest that once a certain gang size has been determined for a certain type of operation, that that would apply to any vessels that might be used. However, that is not what the parties have said and to suggest to attempt to stretch the words used by the parties to include this sort of operation would do violence to the words they have used and to give a meaning wihch the parties obviously did not have a common intention to express.
The Company established its consistency when the "Bond" was in service prior to the ROLOC operation in that it scrupulously observed the rule of a 19 or 20 man gang and when they then moved it in with the ROLOC operation they were again consistent in using the manning provisions arrived at for ROLOC operation by the Arbitrator. This does not change the fact that what they were using here was a different vessel, other than one which had been explicitly referred to.
That being so, one then must look at what the manning positions should be for that vessel. The Company said that the past practice was to use 19 and this indeed is what the Union is seeking and for these reasons I find that the grievance succeeds and the five persons who had been denied the opportunity for the hours worked shall be paid therefore.
If the parties have a problem in determining the matter of the monetary settlement, the Arbitrator will remain seised.