IN THE MATTER OF SUMMARY DISPOSITION 07-2000

BETWEEN

BRITISH COLUMBIA MARITIME EMPLOYERS

ASSOCIATION

(The Association)

AND

INTERNATIONAL LONGSHORE AND WAREHOUSE

UNION, CANADA

(The Union)

Job Arbitrator: Ronald S. Keras

Counsel for the Association: Ms. L. Dianne Richards

Counsel for the Union: Mr. Albert Le Monnier

Witnesses:

Star Shipping Canada Mr. Terry Baily

Canadian Area President Mr. Tom Dufesne

Canadian Area 1st Vice President Mr. Bill Carrigan

Hearing: September 8, 2000

P ublished: September 15, 2000

The Union's pay claim read as follows:

It is ac

of the

wledged by the Association that on March 5, 2000 the crew

S tar Derby loaded directly on a truck a container of

gear. This is in violation of Article 26.01 (2) of the Collective

ement and a refusal to obey the order of Industry Arbitration

"Re-hearing of Summary Disposition #98-03" which. up-held the Job

Arbitrator's decision that such work was within the scope of the

Collective Agreement.

Article 26.01 describes dock work and 26.01 (2) reads as follows:

ilway cars, trucks, trailers, etc., within the

dock area.

The Union requests the arbitrator to order the Association and it's members to

cease and desist defying Summary

p ay the above mentioned Pay claim.

osition 03-98 and order the Association to

In their March 8, 2000 letter to the Association the Union sought "pay for a six (6)

men gang and a lift truck driver".

11

The facts were not in dispute. Mr. Baily testified that the crew removed 398 air

bags on March 5, 2000. Mr. Baily testified that the 398 used air bags were taken to

Universal Rope where they are recouped. He said Universal Rope has a Star

whose effect would have been to make the

socia withdrawal of a

puted work out

eek redress

stry Arbitrator therefore

t to the earlier decisions the Association ha

cisions.

ified to

chards testified to the tion's direction to member Employers at the

be us n bargaining uni

nt that was

not bargaining

work.

III

led

held by

attemp

_posal in May of 1999 subseque

The Union also argue

submitted no new evidence, which would point to an arbitral error.

arbitration as

to

award was clearly wrong.

4 of the

s appeare

portions of

le where "it" refers to carp-o. The

it co Asso

ented included such references and argument as they now make. The

Association argued that the Job Arbitrator should conclude that the loading and

unloading of ship's equipment is not bargaining unit work. In the alternate the

hat the Job Arbitrator find that the Association's interpretation

of the previous awards is the correct one and that they have been

previous awards.

ofAmerica, 5 L.A.C. 1797, June 20, 1954, Professor

The Association argued that their interpretation finds support in Summary

Disposition 09-98.

The parties submitted case law in support of their arguments.

III

There are a number of issues in the instant case. A major concern is the issue of

jurisdiction. The competing principles of finality with respect to the adjudication

of industrial disputes in recognition of the negative labour relations impact on

rehearing the same or a similar issue infiniturn and the unpalatable idea of having a

4(clearly wrong" decision stand against Collective Agreement provisions stating

that arbitral decisions must be consistent with the terms

nt have been discussed.

and Local 278C, Internati,

by the

Collective

: Brewer's Warehousing Company Limited

ion of Brewery, Flour, Cereal, Malt Yeast, Sqft

B ora, Laskin commented at page 1798:

It is not for one Board of Arbitration to refuse to follow the award of

another Board in a similar dispute between the same parties arising

out of the same Agreement where the dispute involves the

interpretation of the Agreement. Nonetheless, if the second Board has

the clear conviction that the first award is wrong, it is its duty to

determine the case before it on the principles that it believes are

applicable.

Professor Laskin's view of what may be described as competing principles are

found to remain authoritative today. (See Canadian Labour Arb Brown

and Beatty, 3rd edition, at 1:3000, and Re: Canadian Airlines International Ltd.

loyees, Airline Division, 32

February 25, 1993, H. D. Brown).

In Re: Federated Co-Operatives Ltd. and International Woodworkers ofAmer

Canada, Local 1-417, 59 L.A.C. (4'h) 30, October 21, 1996 Arbitrator McPhillips

commented at page 44 as follows:

To allow the Union to raise an argument in these proceedings that was

available to them in the previous hearing would be inappropriate in

ion. This would be a classic example of litigation by

Ilment. As stated above, finality in labour relations is critically

[portant and must be encouraged.

At the outset of this hearing the Job Arbitrator reserved on the jurisdiction issue

and heard the merits of the case. The Job Arbitrator was of the view that both

competing principles are key to the fair and efficient administration of the

Collective Agreement and as such an arbitrator has on. obligation to hear the parties

in c tances such as this.

On the merits, I have difficulty in reaching the same conclusion as the Association.

The Collective Agreement definition of truck reads as follows:

Any vehicle other than a car used for the purpose of conveying cargo

to or from ship loading terminals.

A rticle 1.03 reads as follows:

Agreement shall apply to all such persons employed and

despatched pursuant to the terms of this Agreement for the

performance of work in connection with the movement of inbound or

outbound cargo from the time it enters or leaves the dock, or with the

movement of cargo from the stow to release from conventional or

other ship's gear or vice versa, and so long as it remains at a dock and

control of a member of the Association covered by this

Agreement. Work in connection with the movement of such

outbound and inbound cargo shall include the operation of stationary

and mobile cargo handling devices and equipment; to or from railroad

trucks, trailers, other vehicles, barges or scows when any or all

of the foregoing are alongside within reach of conventional or other

gear and comes under the control of a member of the

Association covered by this Agreement up to the point at which

stowed in or discharged from a deepsea or coastwise vessel.

I don't believe the truck definition of "conveying cargo" is an exhaustive

description of a truck's functions nor can it be considered conclusive in terms of

defining bargaining unit work. I agree with the Union that such an interpretation

would not fit,, or be consistent with the following Art

which reads:

le 26 provision at page 70,

The Employers have the right to have trucks come under the hook to

heavy lifts, dunnage, lining material, long steal, booms and

and/or Ship to

44cargo". The interpretation

ciation is in clear co

1e 26 provision. Nor in my view can the definition

to eliminate work which is "'in connection with"

ion

t work. Ship's stores are typically delivered by truck.

Articl

41;cargo_,)

n the article the descriptive adjective

with" can not be ignored. It is used twice in the Article and arbitrators

must consider that the parties intended the phrase to have meaning. What does "in

connection with7 mean if not a term to expand the jurisdiction of bargaining unit

work to include work that is connected with the movement of cargo?

The Association "it" argument also made no accommodation for the term "in

connection with". I understood in Summary Disposition 03-98, and do now, that

the meaning of the Association's argued "its" is in reference to cargo. I felt that

not require interpretation in 03-98. The word was clear to me at the time.

I am unable to conclude now as then that where "it" (in Article 1.03) is in reference

to cargo that "it" somehow diminishes the meaning of "work in connection wiff',

after all, the term "work in connection witW' refers to work in connection with the

movement of "cargo".

The movement of equipment used to stow cargo is "work in connection

movement" ' (cargo).

Industry Arbitrator Munroe commented as follows in Re: Bri

Maritime Employers Association and International Longshore and Warehouse

(unreported) October 21, 1998

... I note firstly that Article 1.03 says that the collective agreement

applies to "...the performance of work in connection with the

movement of inbound or outbound cargo"; it does not say that the

collective agreement applies to "...the movement of inbound or

outbound cargo". I can-not presume that the phrase "in connection

with" is superfluous. That phrase certainly has its limits, but it does

add breadth to what otherwise would be a narrower formulation. As

recounted earlier in this award, the Job Arbitrator put the matter this

10

way: "The equipment in dispute has very much to do with the

movement of cargo." Expanding slightly on that observation, and

keeping within the frame of Article 26.01(2) as well as Article 1.03, 1

would say that the loading or unloading of ship's equipment between

vessel and truck, as was done on December 7, 1997 and March 17,

1998,, is connected with the movement of cargo such that it is

bargaining unit work.

I found no compelling evidence adduced or argument submitted that would cause

me to reach a different conclusion than the one I reached in Summary Disposition

03-98 or would cause me to disagree with the above comments of Industry

Arbitrator Munroe.

The Association argued that Summary Disposition 09-98 supported their alternate

Argument that only air bags removal which are to be returned to the ship during

same voyage are to be considered bargaining unit work. Summary Disposition

09-98 dealt with the provisions of Article 20. The instant case is pursuant to

Article 26. In Summary Disposition 09-98 the attachment or re attachment of

chains which were not needed to lash cargo during the vessel Virginia's port visit

were found not to be bargaining unit work. The attachment or re attachment of

chains used for lashing down cargo was found to be bargaining unit work. In the

instant case the removal of 398 air bags on March 5'" was from a vessel that would

remain in port until March 14t" or 1 5th.

Two factors distinguish the instant

Summary Disposition 09-98. All of

stances from those adjudicated in

ved 398 air bags which are recouped

a change in supplier or some other like occurrence, be used to secure

o if not on the Star Derby then on a subsequent visit to the west coast by

another Star Shipping Canada vessel. The reasoned conclusion is that at some

I I

efore makes their removal bargaining unit work.

lessor

ed concerning how Star Shipping Canada would know on

For the above reasons the U

ordered. The specific. quantum is referred to back the

ional question the Association had two previous

case heard. Ifie

-he courts if they wished to pursue such avenue. They had the

law I believ

ile I respect and concur with the "Professor

e , it

ob Arbitrator and

rits o

Dated in Vancouve itish Colum of September 2000.

Ronald S. Keras

Job Arbitrator 294

British ColumbiaMaritime EmployersAssociation

BCMEA 5 00 - 349 RAILWAY STREET, VANCOUVER, B.C. V6A 1A4 - TELEPHONE (604) 688-1155 - FAX (604) 684-2397

September 25, 2003

ILW'U-Canadian Area

20-1880 Triumph Street

Vancouver, BC

V5L IK3

Atte

Dear Sir:

Mr. Bob Ashton

L ongshore Contract Coordinator

Re: Summary Disposition # 07- 2000 dated Sep"ber 15, 2000

SEP 2 9 2003

C ANADA

This will confirm the Association's position relative to the aboNe Summary Disposition.

this case, as in the previous Industry Award, pertains to cargo handling equipment

which, as Job Arbitrator Keras puts it: "will be used as an integral part of securing cargo on the

west coast". As further described by Industry Arbitrator D. R. Munroe, the issue: "requires a

consideration of the relationship between Article 1.03 and Article 26.01 paragraph 2."

In the light of the foregoing and given the fact pattern at issue in Summary Disposition 0 7Z_ t, 1-2000

the Association will drop its appeal.

However, in doing so, the Association wishes to be clear that there are two specific fact patterns

that can clearly be distinguished from and therefore not covered by Summary Disposition 07 -

2000:

1. non-cargo handling ship's equipment-,, and

2 . ship's cargo handling equipment not utilized in west coast operations under the umbrella

of the BCMEA /fLNVU Collective Agreement - that i's to say equipment which is

serviced or re-certified in British Columbia.

It therefore follows that it is our position now, as before, in respect to the direct movement of the

above two cited items to or from vessel and truck and. vice versa - that such is not bargaining unit

work and is outside the scope of the Collective Agreement.

cc: LR Managers

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