IN THE MATTER OF AN ARBITRATION
BETWEEN : THE INTERNATIONAL LONGSHOREMEN’S
ASSOCIATION, LOCAL 1259
of the one part
- a n d -
CANADIAN NATIONAL MARINE INC.
of the other part
PURSUANT to the Collective Agreement the parties had agreed upon Judge John F. McDonald to act as a single arbitrator in the matter of a dispute between the parties.
The Union was represented by Mr. E.L. Keagan, Recording Secretary, I.L.A., Local 1259, North Sydney, Nova Scotia and the Company was represented by Mr. N.B. Price, Moncton, New Brunswick.
The parties had agreed that the arbitrator was seized with jurisdiction and no objections were raised.
As a result of a disagreement which arose in the interpretation of certain clauses in the current contract between the Canadian National Marine Inc. (hereinafter referred to as "The Company") and the International Longshoremen Association, Local 1259 (hereinafter referred to as "The Local") the various steps set out in the Contract for dealing with any disputes arising during the work at North Sydney were carried out, but it was not possible for the Company and the Union to reach on mutual concentus, so the final step was a request from the Union for the appointment of an Arbitrator, under Section 14, subsection 2 of the Agreement between the Company and the Union, presently in force.
I was asked to act as Arbitrator by The Honourable André Ouellet, Minister of Labour, Ottawa, Ontario and I accepted the appointment. Arrangements were made, by myself, with the Manager of Labour Relations, Mr. N.B. Price, acting on behalf of the Company at Moncton Headquarters and Mr. E.L. Keagan, Recording Secretary, I.L.A. - Local 1259, North Sydney, Nova Scotia. As a result, both sides agreed that May 17, 1984, at the Company Board Room, North Sydney was acceptable to both parties commencing at 9:30 a.m.
The meeting commenced at 9:30 a.m. on May 17, 1984 and Mr. Price presented a written Brief on behalf of the Company and Mr. Keagan argued, orally, on behalf of the Union. No objections were raised by either side in reference to my appointment or jurisdiction.
The first claim by the Union, a violation of ARTICLE 2, subsection 1 of the Collective Agreement in that, positions advertised as Waiting Room Attendants included on the bulletin, included also the duties as assigned by the foreman. Another grievance claimed as a violation concerned the duties of the Compound Checker on the 2300 to 0700 hours shift. On October, 1983, the Terminal Manager responded by letter that the assignments had been advertised as Freight Handler Stevedore positions, so tha the extra duties laid on were normally done by employees in the Classification of Freight Handlers. The Terminal Manager pointed out that the work performed by the Checker was within the normal requirements of assignment and that there was no violation of the terms of the Collective Agreement.
The Union then proceeded to the next step set out in the Agreement, which was an appeal to the Manager, Gulf Service, claiming violation of Section 2, subsection 1, claiming that letters at pages 69, 70 and 72 were not applicable.
On November 26, 1983 (Exhibit V) the Union then progressed to Step 3, the original grievance, violation of ARTICLE 2, section 1 by sending a letter to
the Company. The Company, through a misunderstanding, failed to reply in the time required and the grievance then proceeded to Arbitration, automatically, when the time limit for response by the Company expired. The Company responded by letter (Exhibit VII) on January 18, 1984, agreeing that the Union could now go to the final step in the Collective Agreement, the appointment of an Arbitrator under Section 13 subsection 9.
As stated above, the meeting was held on May 17, 1984 at North Sydney, and the issue was discussed. The Company submitted a lengthly Brief outlining their side of the dispute. Included were Exhibits in relation to the duties, their classifications and the rates of pay for the various classification, as well as other information. One of the duties mentioned in the statement of the Union is that of a Waiting Room Attendant, which is not included in the various classes of employment as found in the list on Page 5 of the Agreement between the Company and the Union. As the duties of the Waiting Room Attendant are not included separately, it must follow that they are to be performed by men from one of the other classifications, which means that the Company foreman in charge has to decide from which classification the man will come to fill in.
These assignments are done on a temporary basis and the hourly pay rate is fully covered by ARTICLE 5, Section 3 of the Agreement which reads as follows :
" An employee who is temporarily assigned for 60 minutes or more, cumulative, in any one day, to carry out the duties of a higher rated position as though hired in that classification, and not merely as a helper to a higher rated employee, will be paid the rate for such position on the minute basis. An employee temporarily assigned to a lower rated position will not have his rate reduced".
This section clearly states that a temporary shift to another classification will not suffer any loss financially. It is equally important that employees in one classification be familiar with the duties required in all classifications as emergencies may arise at any time where the shift finds itself short in one category and it must be filled with a person from another category. It is not difficult to understand that the work at North Sydney, as carried out by Canadian National Marine, is a very essential link in the Canadian Transportation System and it must function smoothly at all times, both in the interest of the passenger service as well as the freight and road vehicular vehicles, both trucks and private cars. The meaning of terms in a Contract of course are interpreted strickly. If the
ordinary term in a Contract is plain on it’s face and there is no ambiguity that term must be taken as read and nothing can be added or taken away. The powers vested in management in the Agreement are stated in ARTICLE 3 on page 2, which reads as follows :
"ARTICLE 3.1 The Union acknowledges that it is the exclusive function of the Company to :
(a) maintain order, discipline, 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.
ARTICLE 3.2 The Company agrees that these functions will be exercised in a manner not inconsistent with the terms of this Agreement".
Thus, it is apparent that this section empowers the Company to carry out the functions of their purpose and unless there are sections which reduce or change these powers, the Company executives are able to direct the business of the Company as outlined. Thus, the employees may be shifted to a temporary position in another classification other than their normal work. If any changes are asked that affect the powers of the Company as defined in Section 3, that change would have to be made so that they would not affect the powers of the Company as set out in Section 3. They form part of the Agreement and can only be altered by consent of the Company.
The Union also claimed that certain past practices were negotiated between the Company and the Union by agreement in discussions of the new Agreement. These changes were made by Mutual Agreement, evidently, during discussions of the new Agreement. In the present case, the Company is not willing to undertake discussions which affect their control of the daily arrangement of the work as agreed under ARTICLE 3 of the Agreement. Any interference with that function could have drastic effects on the operation of the various functions of Canadian National Marine at North Sydney.
The case of Brown and Beatty, Canadian Labour Arbitration at 187, I believe states the principle that applies very aptly to our situation at North Sydney. It says in part as follows :
"management may also perceive a need to reorganize 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 required. 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".
Canadian National Railways and C.B.R.T. & G.W., Arbitrator, J.F.W. Weatherill. This would seem to be a logical conclusion on the rights of the Company on the handling of their work force. The claim of the Union in the present case that other changes in the working rules have taken place after discussion in no way diminishes the power of Canadian National Marine to place their work force, given by the Agreement presently in force. Section 3, subsection 1 remains unaltered unless amended by an Agreement of both parties. This is a rule of contract law. Here the orbit of control of the work force has not been changed either by mutual consent or amendment. For this reason the control of the work force remains as stated in clear, unambiguous terms and the Company is under no compulsion to have any prediscussion with the Union for any changes authorized under ARTICLE 3 of the Agreement.
To sum up :
(1) The powers given to the Canadian National Marine udner Section 3 subsection 1, are absolute and cannot be diminished in any way expect with the waiver of the Company ;
(2) Employees can be shifted from one classification up or down to another, without any discussion with the Union. An adjustment in remuneration has to be made if the shift is made, even temporary to ensure that financial loss does not occur. This is assured by Section 5, subsection 3.
(3) Nothing in the Agreement required the Company to enter into discussions with the allotments of work to each individual in his own classification or in any other classification.
The Union claims right in their present grievance which cannot be justified by any part of the contract. I find therefore, the Company has the final, unqualified decision and does not have to enter into discussions as requested by the Union.
I thank the Union and the Company for their help in arbitrating these matters.
DATED at Sydney, Nova Scotia, this 13th day of June, 1984.
Judge John F. McDonald