118

 

 

A R B I T R A T I O N

 

 

IN THE MATTER OF : CN MARINE INC., a body corporate,

herein called the "EMPLOYER", and

 

IN THE MATTER OF : International Longshoremenís Association,

Local 1259, herein called the "UNION".

 

 

 

A W A R D

 

HEARING : Held at CN MARINE Administrative Building,

North Sydney, Nova Scotia, on February 8,1983,

at 9:30 oíclock in the forenoon.

 

ARBITRATOR : R. Lorne MacDougall, Q.C.

 

 

FOR THE EMPLOYER : N. B. Price

L. H. Wilson

H. D. Sorhaitz

G. J. MacLeod

N. K. Hatcher

 

FOR THE UNION : T. E. Tobin

E. L. Keagan

 

 

 

 

 

 

 

 

 

 

 

 

 

 

THE ISSUE :

 

 

 

The Union alleges that an additional position of checker is required to supplement the 3-man container transfer gang established by virtue of Article 15.17 of the relevant Collective Agreement.

The Parties agreed that grievance procedures herein have been exhausted ; that the Arbitrator is properly constituted ; and that the Arbitrator has jurisdiction herein.

The Parties also agreed to waive any time limitations which may exist with respect to filing this Award.

 

 

 

 

 

 

 

EXHIBITS :

 

 

"A" - Collective Agreement

"B" (1) and (2) - Sample copies of container lists

"C" - Letter of August 24, 1982, G.J. James to E.L. Keagan

"D" - Letter of August 11, 1982, G.J. James to E.L. Keagan

"E" - Letter of August 3, 1982, E.L. Keagan to G.J. James

"F" - Letter of July 26, 1982, G.D. Hudson to E.L. Keagan

"G" - Letter of July 19, 1982, Vince Garnier to Doug Hudson

"H" - Letter of July 16, 1982, G.J. MacLeod to Vince Garnier

"I" - Letter of July 12, 1982, Vince Garnier to Gordon MacLeod

"J" - Checkerís tally sheet completed

"K" - Checkerís tally sheet blank

"L" - Vehicle Inspection Report blank

 

 

 

 

 

 

 

THE DECISION :

On crews working under the provisions of Article 15.17, which consist of three men including two operators, listing of container numbers on a record sheet for this purpose on westward movement is done by one of the operators, and by the Parking Lot Attendant on eastern movement. The Union claims that this is checkerís work, and that a fourth man should be employed to do this. Up until October 15, 1982, the Employer had been using a checkerís form (Exhibit "L") for this purpose. From that date on a more modest or simple form has been used (Exhibit "B").

 

Article 15.17 was added to the Agreement during negotiations in 1982 in recognition of the added complexity and responsibility in operating the new "Raygo Wagner" container lift equipment. On June 20, 1982, the new lift and crew were first introduced to the operation.

Containers moving eastward to Newfoundland are removed from flat cars and placed on roloc chassis. Then a tractor trailer operator, using a yard tractor, places the containers in the parking lot for loading on the vessel. While in the parking lot the attendants there, as part of their duties, record each unitís numbers.

Containers moving westward from Newfoundland, which are also placed on roloc chassis, are then removed and placed on flat cars. One of the operators and a freight handler (stevedore) remain on the ground placing the containers. The second operator operates the Raygo Wagner equipment which lifts the containers to flat cars. The operator while doing his other duties records the number of the flat car and opposite the number of each flat the number of the container placed on it. This is done on a list supplied to him by the Foreman Stevedore which lists all the containers to be moved.

The Employer says that a checkerís work normally involves a number of activities related to checking freight traffic between shed, cars, boats, trailers, trucks, and so on. He has specific duties such as counting the number of pieces in a shipment, recording seal numbers of freight cars, directing the placement of pieces of a shipment to the appropriate trolley or bundle, marking bundles for identification, checking automobiles for damage, and so on. He assures the proper loading and unloading of freight and is responsible for the accuracy of weights, number of packages, addresses and marks. He is normally supplied with a tally sheet.

 

 

 

 

There is nothing in the Collective Agreement that ties the particular work in question exclusively to the classification of checker. The Union, however, says that this was historically the work of checkers.

Apparently during negotiations the issue was raised in connection with the formation of the new gang by virtue of Article 15.17. The Union pressed for a 4-man crew and the Employer for a 3-man crew. This issue was settled with the assistance of a Conciliation Officer and Article 15.17 in its present form was introduced into the Agreement as follows :

"15.17 In container transfer utilizing a Raygo Wagner container lift or equivalent a gang shall consist of 3 men including 2 operators".

The Union says that this was agreed upon as the Employer had stated that all checking would be accomplished by the checker aboard the vessel as they were being loaded. It says that over the past thirty years all recording of container numbers has been done by checkers with the exception that the parking lot attendant has checked a few trailers unloaded at the sheds. The Employer says that its position at negotiations was that the work was not such as to require a checker being added to the gang. This is still its position. The Collective Agreement does not contain a job description for checkers.

By the terms of Article 14.6 of the Agreement it is not open to the Arbitrator to consider anything but the bare words of the Agreement in interpreting Article 15.17 or any other Article. The Arbitrator must take the language of the Collective Agreement as it is unless the language is ambiguous or equivocal and it is only then that it is open to him to consider extraneous evidence. How article 15.17 was negotiated therefore is not within the scope of my arbitral authority as long as the language is clear which it is in this instance. The Article in question plainly calls for a crew of three men and there can be no deviation from this.

The only question, for consideration here is whether the listing of numbers as referred to herein requires that a checker be called in to do this work.

It is abundantly clear from the facts presented that the work of listing the numbers in question are not such as to require the full-time service of a checker. The listing that is done by the operator and the parking lot attendant is an incidental part of their work only. Each still is able to function normally as an

 

 

operator and as a parking lot attendant despite the listing. The listing that each is required to do does not alter or change the character of their classifications. If it did then this would clearly involve a violation of the Collective Agreement.

Brown and Beatty : Canadian Labour Arbitration at pages 187 et seq., makes the following statement :

"For the same reasons that may cause it to reorganize and assign work to independent contractors or non-unit employees, management may also perceive a need to reorganize the procedures and methods of performing work within the bargaining unit. As a general presumption, arbitrators have taken the view that where the reorganization is not contrary to the general law, where it is done in good faith, and where it does not contravene clear prohibitions in the agreement management is free, subject to such overriding principles as waiver, to organize the work procedures and methods within the bargaining unit as it requires. This is so whether the assignment of work is temporary or permanent, and whether it is within a job classification or crosses classification or departmental lines. Moreover, this presumption will prevail regardless of whether the reorganization took the form of creating new classifications, discontinuing old classifications, or splitting and reorganizing classifications and departments. Similarly, this presumption will sanction reorganizing, adding or discontinuing jobs within classifications, raising or lowering a classification, and any other bona fide changes in the organization of the work force".

Pursuant to the foregoing the comments of Arbitrator J.W.F. Weatherill in Canadian National Railways and C.B.R.T. and G.W., Case No. 117 in Canadian Railway Office of Arbitration, appear to be appropos :

"The Companyís action of November 16, 1967, was based on the determination that it did not require the services of a car checker in the control towers at Toronto on the 8:00 a.m. to 4:00 p.m. shift. The work of correcting cut lists was assigned to yardmasters as a part of their regular duties. The performance of this particular task did not mean that the yardmasters had become car checkers. Rather, yardmasters correct cut lists as an incidental part of their work as yardmasters. Had the amount of work involved in correcting cut lists been such as to require the full-time services of an employee, then that employee would be a car checker. Such, however, is not the case before me.

 

 

For the foregoing reasons I cannot conclude that the Company committed any breach of the collective agreement in assigning the work of correcting cut lists to yardmasters in the control towers at Toronto".

Certainly what the Employer is having done in this situation by the operator and parking lot attendant in listing numbers is on the whole incidental only to their normal classification duties. There is no suggestion of a lack of bona fides other than what may have been said at the time of negotiations and which does not properly come under purview here. The Employer has not contravened either the general law nor the provisions of the Collective Agreement. It is therefore the finding herein that the grievance of the Union fails.

DATED at Truro, Nova Scotia this 14th day of February, 1983.

 

 

 

 

____________________________

R. Lorne MacDougall, Q.C.

Arbitrator