AH – 393
IN THE MATTER OF AN ARBITRATION
CANADIAN PACIFIC EXPRESS & TRANSPORT
TRANSPORTATION COMMUNICATIONS UNION
GRIEVANCE RE HEAT IN PORT COQUITLAM DOCK AREA
SOLE ARBITRATOR: Michel G. Picher
There appeared on behalf of the Company:
B. F. Weinert - Director, Labour Relations, Toronto
Jeff Barrett - Linehaul Manager
And on behalf of the Union:
Jack Crabb - Executive Vice-President
Michael Flynn - Division Vice-President
A hearing in this matter was held in Toronto on November 22 & 23, 1992.
This is the arbitration of a grievance concerning compliance with a provision in the collective agreement with respect to the heating of Company premises. The ex parte dispute and statement of issue filed at the hearing are as follows:
The Company’s violation of the terms and conditions of the present collective agreement language, specifically article 11.1 as these apply to and in the Port Coquitlam terminal facility.
UNION’S STATEMENT OF ISSUE:
The Union has initiated a policy grievance concerning the Company’s ongoing violation of article 11.1 of the collective agreement with no successful resolve being achieved.
The Union maintains that the contract language, as contained in the agreement is cogently clear, therein, the Company by not providing “heat” in the warehouse facilities has knowingly violated the terms and conditions of the collective agreement.
The Company contends that it has “lived up to the spirit” of the agreement, and therefore, has not violated the contract language.
The Union finally asserts that the terms of article 11.1 is constructed in an imperative context, thereto; the Union is seeking a compliance and correction in light of these expressed provisions of the agreement.
At issue is the failure of the Company to provide any heating facility for the dock area of its Port Coquitlam Terminal in Vancouver. It is common ground that that facility is the fourth largest in the Company’s system, and that over a three shift period of 24 hours some 50 to 60 employees work in the dock area.
The building is constructed of sheet metal and concrete, and it is common ground that there is no insulation in the dock section. Given the generally mild temperatures in the lower mainland of British Columbia, the comfort level in the dock facility is generally acceptable for most of the year. The grievance arises, however, because the Union alleges that the comfort level is unacceptable during those periods of time in the winter when the temperature is near or below the freezing point. The Union spokesperson submits that in that circumstance, the total lack of heat, even through temporary or portable equipment, constitutes a violation of article 11.1 of the collective agreement. That article provides as follows:
11.1 Offices and other premises shall be sanitary, well ventilated, properly lighted, heated and furnished in the best interest of the employees and to the best of the Company’s ability.
The Company submits that it has acted reasonably, and doubts that the problem is as serious as the Union contends. It’s spokesperson notes that in some other locations, such as Pembroke, Ontario, which are substantially colder than Vancouver, the terminal facility is not heated.
The Union’s representative counters that in a number of locations where no heat is provided, such as Pembroke, Oshawa and Sarnia in Ontario, there are two distinguishing factors. The first is that the number of employees who work full time on the dock floor is substantially smaller, often numbering no more than two or three. Secondly, he submits that in those locations special allowance is made on cold days to allow the employees to take extended breaks to permit them to warm up.
The Company placed before the Arbitrator documentary evidence disclosing the status of heating facilities in all of its terminals. A review of that list confirms that the preponderant practice is to provide heat in the terminals. Among the terminals which are owned by the Company, 34 are heated while 19 are not. Additionally, five leased facilities are heated, while two are not. In the aggregate, therefore, 39 terminals are heated, and 21 are not. In the Arbitrator’s view it is significant to note the treatment of different locations. With the exception of Vancouver, all of the terminals in the larger centres, which generally bear a greater volume of traffic and employ more people, are heated. In this regard it is noteworthy that the new terminal at Toronto, as well as the terminals at Montreal, Ottawa, Quebec City, Dartmouth/Halifax, Regina, Calgary and Edmonton are all heated. Additionally, there are at least five terminals in British Columbia which do have heating, including Kamloops and Kelowna.
In the Arbitrator’s view the language of article 11.1 places what might be characterized as a qualified obligation upon the Company. The language of that provision must plainly be interpreted having regard to the reality in which it has operated for many years. As the evidence discloses, the article has not been applied by the parties so as to require heating in each and every dock facility in all of the Company’s terminals. On the contrary, the practice seems to acknowledge that in a number of locations and circumstances, it is impracticable to provide heat. That appears to be particularly so in a number of smaller terminal locations. By the same token, however, the pattern appears equally clear, that in large centres where substantial numbers of employees are employed in the dock area, heat is generally provided.
Of particular significance in the article is the qualification that the lighting, heating and furnishings are to be provided “… to the best of the Company’s ability”. In the Arbitrator’s view that language confirms a balancing of interests. In determining the level of comfort to be provided, regard must be had to the practicalities, including the ability of the company to provide it. In considering that question, regard must be had to a number of factors, including the location, the number of employees involved and the cost and feasibility of providing the amenity in question.
The evidence before the Arbitrator is uncontroverted that at present the Company’s financial position does not easily lend itself to making capital improvements. It is not disputed that during the last fiscal year the Company suffered a net loss and, given the current recession, the prospects for a return to profitability are uncertain, at best. It is with that in mind that the Arbitrator inquired of the Union at the hearing as to whether it would accept that the application of Article 11.1 in the circumstance of the Port Coquitlam Terminal could be made to depend on the pre-condition of the Company returning to profitability. In other words, by a fair application of the article, having regard to the factors which apply in Vancouver, should the Company be expected to incur further debt when it is already in a net loss position with respect to its operations? The Union conceded that the reference to the Company’s ability contained within the language of article 11.1 would suggest that, in the circumstances, allowance for the Company returning to a position of profitability would not be unreasonable. Having regard to the language of the provision, and to the history of its administration within the Company’s operations, the Arbitrator is of the view that that is a reasonable and appropriate approach to the application of Article 11.1.
For the foregoing reasons the grievance is allowed, subject to certain conditions. Having regard to the number of employees working in the dock area at Vancouver, and to the accepted practice in other comparable centres, the Arbitrator finds and declares that the Company is under an obligation to provide some form of heating for the dock area at the Port Coquitlam Terminal. It should be stressed that the obligation does not extend to retrofitting the building, nor to providing levels of heat that would be suited to an office or a home. In this regard, portable equipment which provides for surface heat, and the temperature levels generally found in the Company’s heated terminal facilities elsewhere should provide a reasonable standard. Secondly, the Arbitrator is satisfied that the Company’s obligation to comply with this award should not be triggered until such time as it has experienced a net profit over a period of not less than one fiscal year.
I retain jurisdiction in the event of any dispute between the parties with respect to the interpretation or implementation of this Award.
DATED at Toronto this 27th day of November, 1992.
(signed) MICHEL G. PICHER