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Vince Readys’ Arbitration Results
IN THE MATTER OF AN INTEREST ARBITRATION
(the "Employers")
(the "Union") ARBITRATOR: Vincent L. Ready COUNSEL: Eric Harris, Q.C. for Peter Cameron for PUBLISHED: January 8, 2003
3. All matters previously agreed between the parties will be implemented by the parties. 4. The following issues will be submitted to Vincent L. Ready as sole interest arbitrator to render a final and binding award which shall becomes part of the collective agreement. (a) Hours of work (b) Wages
The parties requested that I mediate the issues in dispute between them. I met with the parties on June 18 and 19, 2001 at which time they outlined the nature of the issues in dispute. They provided me with an extensive overview of the recent structural changes in the West Coast Grain Industry and in the Prairie Provinces which provide grain to the Vancouver Port. The parties very quickly became deadlocked over certain issues which resulted in the B.C. Terminal Elevator Operators’ Association breaking off negotiations on January 26, 2002. Subsequently, on March 8, 2002, the Employers applied to the Federal Mediation and Conciliation Service of Human Resources Development Canada (HRDC) in Ottawa for the appointment of a Conciliation Commissioner pursuant to Section 72 of the Canada Labour Code. By agreement of the parties, I was appointed by the Honourable Claudette Bradshaw, Minister of Labour of Canada, as Conciliation Commissioner. At the time of my entry into the dispute as Commissioner, the parties remained deadlocked over a number of issues. In an attempt to break that deadlock I asked the parties to provide me with written outlines of their respective positions on each of the outstanding issues. Following receipt of these submissions, I provided the parties with what I considered to be a realistic bargaining framework. I scheduled further meetings with the parties on May 4, 5 and 6, 2002, during which some progress was made. However they remained deadlocked on the key issues in dispute. I then requested and received written submissions and replies from the parties on June 6, 2002 and June 20, 2002. I provided the Minister of Labour with my Conciliation Commission Report on June 30, 2002 (the Report) which was later released to the parties. I made the following comments: These recommendations represent a very delicate balancing of the interests of each party’s position as presented during negotiations and in their submissions. In my view they represent the difficult but appropriate compromises that are necessary for each party to make. That said, I am hopeful these recommendations will form the basis of a settlement between the parties in this difficult and protracted dispute. I will retain jurisdiction as an expedited arbitrator to assist in any difficulties which might arise with respect to implementation issues or disputes arising out of this report.
Subsequently on August 22, 2002 the parties met in direct negotiations. It is fair to say both sides, while using my report of June 30, 2002 as a basis for negotiations, in the interest of reaching an agreement, moved beyond my report. For instance, the parties discussed using the amount of money recommended in my report over a four year term, instead of a three year term, in exchange for other considerations. As well, other concessions not contained in my report were made in an effort to settle the dispute prior to the lockout. The Employers presented the Union with what they termed their final offer. Nevertheless, the talks became stalemated resulting in the Employers locking out the Union members on August 25, 2002. During the course of the lockout no meaningful discussions were held between the parties. The parties held to their respective positions and it is safe to describe the situation as a classic collective bargaining stand off. Two things became clear to me when I was asked to re-enter the dispute some 3½ months after the lockout began. First, the lockout was likely to continue for several more months if alternatives were not put forward to resolve it. Secondly, neither party was prepared to make the necessary compromises to reach a negotiated or mediated Collective Agreement. Therefore, I recommended the parties submit the remaining issues in dispute to binding interest arbitration in order to bring a timely end to the lockout. Consequently, both the Union and the Employer agreed to submit the remaining issues to interest arbitration - hence the Arbitration Agreement of December 13, 2002. THE ROLE OF THE INTEREST ARBITRATOR This established function necessarily involves the Interest Arbitrator putting himself in the shoes of the negotiators and seeking to conclude a realistic Collective Agreement, based on the considerations that would have guided a freely negotiated settlement. I set these considerations out in an Interest Award involving City of Regina and International Association of Firefighters, Local181, unreported, October 20, 1995: The types of considerations which are relevant to an interest determination are those that dictate a freely negotiated agreement. In arriving at its conclusion, an interest board must assess the evidence in respect of a number of factors which include, for example, current economic conditions, the cost of living index, comparisons with other similar bargaining unit settlements, comparisons with settlements of other bargaining units with the same employer, and agreements generally negotiated in both the public and private sectors. (at 5)
The Union urges me to replicate the Prince Rupert Grain (PRG) agreement which was freely negotiated between these parties. While I do not dispute the PRG agreement is a relevant factor to be considered, it is certainly not, in the context of replication, the only factor. Other factors to be given due consideration include the current economic circumstances and the significant changes in the industry. The current stark realities facing the parties were outlined in the Commissioner’s Report of June 30, 2002 at pp.4-5: 1. A limitation on the number of metric tons which would likely be exported through the West Coast at less than 15 million tons for the period 2003-2004 and only slightly greater than 15 million metric tons for the period 2008-2009 - significantly less than the forecasted capacity in the early 1990’s and less than the capacity of the West Coast Grain Industry. 2. The governance over the handling of grain by commercial contracts between the Canadian Wheat Board (CWB) and its service providers with clear lines of authority specified in their contracts. This development will significantly impact the profitability of the West Coast Grain terminals and, if fully implemented, it will require the grain companies to bid through a tendering process on a portion of wheat sales. Penalties would be imposed if the terminals fail to meet the requirement of the tender agreements. 3. In the future, penalties would be imposed on the Employers for failure to unload grain in a timely fashion. These penalties would flow from the many initiatives which the Railways are continuing to pursue so as to increase efficiency and competitiveness. 4. Put succinctly, the Railways supplying grain from the country to the elevators on the West Coast are making fundamental changes at every step of the supply chain, all of which is designed and intended to provide more efficient turn around of rail cars to and from the West Coast ports. 5. Perhaps the most significant of changes affecting the structure of the West Coast Grain Industry are the mergers and consolidation of businesses which are now a fact of life in the industry.
Collective Agreements must reflect the economic realities facing the parties. That reality also faces an Interest Arbitrator when divining a Collective Agreement similar to what the parties would have achieved on their own. After extensive, probative and candid discussions with the principals of the parties, I have concluded that the following conclusions closely replicate what the parties would finally have agreed to if the lockout had continued over the next several months. I now turn to the positions of the parties and my award on each of the outstanding issues in dispute. POSITIONS OF THE PARTIES AND DECISIONS Mr. Cameron submits that both the 5+2 (more precisely 5+2, 5+3) schedule and the 6+3 schedule referred to in the Arbitration Agreement are modified work schedules that, in their 24x7 versions, result in a significant cost saving for the Employers relative to the current schedule, along with a significant reduction in time and pay for employees. It is submitted that the current continuous schedule has an average of 38.2 hours per week for a total of 1992 hours per year (based on 52.14 weeks per year). The proposed schedules both have 37.3 hours per week on average, for a total of 1945 hours per year. The difference results from the elimination of over-staffing periods required by the current schedule. In the submission of the Union there are 47 fewer hours per year - a 2.36% cost savings for Employers. There is also a corresponding percentage loss in pay for the employees (a figure to bear in mind in the later discussion of wages provisions). The Union asserts that, although it was prepared to consider the 6+3 schedule (with a number of conditions) in pre-lockout mediation, the membership reaction to this was very negative. Members involved in the Union’s hours of work committee forcefully pointed out the expert view that sleep deprivation tends to increase with the number of consecutive days worked. In view of the considerable savings from both the 5+2 and the 6+3 shift configurations, the Union continues to be puzzled by the adamant preference of the Employers for 6+3. The Union submits that the 5+2 schedule merits at least a trial period, to determine if there are any unanticipated problems. It is further submitted that if the 5+2 shift demonstrates that it is workable and produces the same savings as are anticipated for the 6+3 shift, then the Employers should be required to use the 5+2 shift in recognition that it is by far the preferred shift from the employees’ perspective. In either case the Union argues there are numerous supplementary issues to be dealt with in the implementation of a new shift schedule. The Union submits that the recommendations in the report of June 30 with respect to those issues should guide the resolution of them, except to the degree that the parties agree otherwise. The Union opposes one of those recommendations and the Employers seek relief from others. The Union urges that I remain seized of these secondary issues as it is not appropriate to make submissions on these matters in the context of a very abbreviated document. With respect to the 10 hour shift schedule which has been strongly opposed by the Union and the members throughout bargaining, the Union points to the employee survey undertaken by Coleman Consulting, which was in the form of a secret ballot, where the employees soundly rejected any work day that was longer than 8 hours, by 80.9% in the Port of Vancouver terminals (and by 80.0% in Prince Rupert). Despite the aggregated result from the Vancouver terminals, in one terminal the result was closer to 50/50 (55.4% against longer shifts). The provision in the June 30 recommendations therefore has some potential application, and the Union believes this is consistent with other agreements. Where longer workdays are in effect in other unionized operations, typically mutual agreement is needed and either party can cancel them with notice (for example in the BCNU Provincial Agreement, either party can cancel the extended work day Memorandum with 28 days’ notice). Clearly, says the Union, the imposition of 10 hour shifts without Union or majority employee support (let alone the 70% referenced in the Code for non-union employees, and the similar policies adopted by many unions for the approval of non-standard work schedules) would be an extraordinary and negative departure from the norm. Position of the Employers It is submitted further that it is simply not open to the Union to argue that the 6+3 schedule should not be adopted in the renewed Collective Agreement. During the course of the conciliation process the Union agreed, both orally and in writing, with the adoption and implementation of the 6+3 schedule. To buttress the Employers’ position, Mr Harris points to the Conciliation Commission Report dated June 30, 2002, which states: During the current collective bargaining dispute, the parties have agreed with the substitution of the current continuous operations system with a new continuous operations system which has been termed a 6 and 3 shift schedule system. Attached, as Attachment 1 to my Report and Recommendations, is the outline of the 6 and 3 Hours of Work Schedule which I recommend for inclusion in the Collective Agreement to replace the ‘Munroe’ system. I agree with the parties that the 6 and 3 system is a more appropriate Continuous Operations System. It has the fortuitous effect of reducing the impact on employees when they are moved from one shift to another shift. It also has the beneficial effect of reducing structural "over manning" in the Schedule itself. In light of the agreement of the parties to the new system, there is no need for me to describe further the inherent benefits of this new system.
The Employers are also of the view that the 10 hour shift system should be implemented immediately in accordance with the terms of the Employers’ final offer dated August 22, 2002, along with the procedural requirements contained therein. Again, Counsel for the Employers points to the Conciliation Commissioner’s Report which recommended that the 10 hour system could be implemented upon achieving agreement with the Union to select that system. While the Union has accepted the Conciliation Commissioner’s Recommendations on this issue, it is submitted by the Employers that it has become thoroughly evident to the Employers that the Union would purposefully attempt to prevent the 10 hour system from being implemented even on a trial basis. It is for that reason that the Employers submit that the 10 hour shift system, together with the procedural rules which ensure its orderly implementation, should be implemented immediately. The establishment of a 6 and 3 schedule together with a 10 hour shift schedule continue to be considered by the Employers to be central to the enhancement of the efficiency of the terminal elevators. The ability to afford the balance of the cost of the Collective Agreement is dependent upon achieving savings in this area. DECISION REGARDING THE HOURS OF WORK I was persuaded during the course of the conciliation proceedings that it was timely and appropriate to change the continuous hours of work in the terminal elevators. It was also very significant to me that the Union agreed with the Employers during the course of negotiations that the continuous shift system should be changed. Both parties accepted conciliation, albeit reluctantly, on the basis that the 6 and 3 system initially proposed by me in a framework I presented to them during the conciliation phase and later confirmed in my Conciliation Commissioner’s Report, was the appropriate system to be adopted. It was not without full consideration that the parties agreed with the 6 and 3 system. It will be recalled that the parties had engaged outside of collective bargaining in a very expensive and through process of reviewing alternate systems to that which had been implemented in the terminal elevators. I have concluded, after reviewing all submissions, that neither party should be permitted to withdraw their agreement to this system. In any event, I remain persuaded that the 6 and 3 system is a more appropriate continuous operations system than the previous system. Therefore, I have determined that the 6 and 3 system should be implemented as soon as possible after the publication of this award. I also direct the parties to work out the necessary implementation and contractual changes to the hours of work language in the Collective Agreement so as to give effect to the 6 and 3 schedule which shall include: moving from one shift to another shift; whether maintenance schedules should be the same as operational schedules; the rights of individual Employers to select shifts; how vacation blocks will be scheduled; and which days of the week continuous schedules will commence. Should the parties be unable to resolve these necessary changes within 45 days from the date of this award, I will retain the necessary jurisdiction to issue a supplementary award on an expedited basis. 10 Hour Shift Schedule It is the strongly held view of the Employers that based on past practice the Union will never agree to the implementation of a 10 hour shift. The Union, on the other hand, strongly opposes the implementation of the 10 hour shift schedule without mutual agreement of the Union and a vote of the membership of the affected members of the Union. In an attempt to balance these strong competing interests I am of the view that there is sufficient operational and economic reasons to implement the 10 hour shift during the term of this agreement. I am also of the view that a 10 hour shift will benefit employees. However, I believe that prior to its implementation, the parties should consult and work out the necessary details of implementation. These terms and conditions should be executed in a Letter of Understanding which should be incorporated into the Collective Agreement. The 10 hour shift schedule will not be implemented prior to January 1, 2004 unless otherwise mutually agreed upon by the parties. Should the parties be unable to resolve any implementation issues such issues shall be referred to me for a final and binding decision on an expedited bases. In light of my decision in the 6 and 3 and the 10 and 4 shift schedules, it will not be necessary to rule on the 5 and 2 shift schedule proposed by the Union, except to say that this award should not be interpreted as prohibiting or precluding the implementation of a 5 and 2 continuous or non-continuous shift schedule where it is operationally and economically feasible to do so. 2. TERM OF AGREEMENT Since the final offer was made to the Union, several months have passed. Therefore, in the circumstances, it appears appropriate to add one additional year to the term of the agreement which would result in a term of five years. The term of five years, it is argued, would essentially give the parties a period of three years to stabilize the relationship and adjust to the changes which are currently taking place in the industry. As discussed many times, the industry is in the middle of a very difficult restructuring. It is clear that this restructuring severely compromises the ability of the parties to engage in collective bargaining. Position of the Union The Union is opposed to a five year term unless the duration clause of the agreement has a provision that allows the Union to terminate the agreement by notice in the event of a lockout of employees at PRG. Without such a provision, it is submitted that the non-alignment of the expiry with PRG’s could be used by the Employers in poor and mediocre crop years to attack their employees’ working conditions and real wages (as in the recent lockout). In good crop years the Union asserts it wouldn’t have a corresponding opportunity to win back what the employees had lost in the bad years, because governments tend to intervene with back to work legislation in good crop years. In addition, the terms of reference of the arbitration are too narrow to permit the parties to make submissions with respect to the necessary benefit changes in a fifth year. Certainly Employers’ pension contributions would have to be increased to the PRG level. In addition, other benefits that continue to erode by inflation would need adjustment. Wages would need a substantial boost, particularly if there is a return of high inflation in the intervening period and if there is any remaining gap with PRG. In short, the Union submits that if I was prepared to award the early termination provision described above, and if the Employers are willing to expand my terms of reference to include possible benefit improvements, the Union would support consideration of a fifth year. DECISION REGARDING TERM OF AGREEMENT Put bluntly, if I was to stay with my original recommendation of three years, the parties would be back in negotiations shortly after the publication of this award which would obviously not serve either parties’ interests. In short, the advantages of a longer term agreement certainly outweigh the advantages of a shorter term agreement. Therefore, I award a term of agreement commencing January 1, 2001 to and including December 31, 2005. In making my award for a longer term I have not overlooked the submission of the Union with respect to a longer term being conditional upon terminating the agreement should the Employers lockout the employees at PRG in a future round of negotiations. I am of the view that in applying the replication principle this would not have been the likely outcome of a negotiated settlement had these parties been left on their own to resolve this dispute. 3. WAGES Subsequently, the Union indicated to the Employers in direct negotiations that it was prepared to make significant further compromises if they would resolve the labour dispute. These efforts were made on the basis that they were "without prejudice" in the event that they were not accepted, and of course they weren’t. Then PRG settled at 2.0% per year for four years. In pure replication, Counsel argues the PRG 2.0% annual increase should be awarded in the present proceedings. However, the Union does not seek to go beyond the June 30 recommendations for the period covered by those recommendations. On the other hand, the Union now argues it should not be prejudiced by conditional moves it made towards the Employers’ position in an attempt to reach settlement before the PRG settlement was reached. An increase to cover an extension beyond the term in the June 30 recommendations is a different matter. The Union asserts further that if I determine that the Port of Vancouver agreement should be extended for a fourth year, that I take note of the reality that the Vancouver members - before their fourth year increase - will be 3.6% behind their Prince Rupert counterparts. In support of its position, the Union points to the Collective Bargaining Information Monthly Summary for October, 2002, BC private sector wage settlements for the last 12 months which averaged increases of 3.29% for contract year 2002, and 2.22% for contract year 2003. The Union also argues there is no reason why the Vancouver members should be significantly behind their fellow members at PRG, especially when the traditional wage relationship was parity. In the submissions to the Canada Industrial Relations Board (CIRB) about why it needed/wanted a different Collective Agreement, PRG certainly didn’t argue that it needed to pay higher wages than Vancouver. In the submission of the Union, the increases awarded should be the same amounts with the same timing as in the June 30 recommendations for the first three years of the agreement. If there is a fourth year, the wage increase should be 2.0% plus an additional amount to close all or most of the remaining 1.6% wage gap. By that time, crop recovery and the continual increases in productivity will make an increase of 3.6% very affordable. In view of the fact that there was no offset from the 2.0% increases at PRG for benefit improvements (and, moreover, the PRG Employer will contribute an additional 50 cents per hour to the pension fund versus the June 30 recommendation of 25 cents in Vancouver), there must be no offset from the lower wage increases in Vancouver to pay for benefits. Position of the Employers Counsel for the Employers argues that the term of the agreement should be extended to December 31, 2005 which would result in a term of five years. In that respect, the Employers propose that a further 50 cents per hour be allocated to wage increases or for other purposes commencing January 1, 2005. DECISION REGARDING WAGES (a) a lump sum payment of $1,100.00 for the period January 1, 2001 to June 30, 2002 pro rated for the period of layoff; (b) 54 cents per hour wage increase effective January 1, 2003; (c) 68 cents per hour wage increase effective January 1, 2004; (d) 50 cents per hour wage increase effective January 1, 2005.
I therefore award effective January 1, 2003 15 cents per payroll man hour worked be allocated for benefits improvement. The parties are directed to meet within 60 days of ratification to determine which benefits this money will be applied to. Pensions
Unfortunately, however, there isn’t enough money in total to create very many retirement packages of the kind apparently needed to persuade senior people to retire early. There is more "bang for the buck" in terms of reducing the total employee complement by offering severance packages to employees at the junior end of the seniority spectrum. In this context the Union asserts that any solution is bound to be arbitrary. The Union believes that the following is as good a compromise as any: Each employer will divide the total of the money to be contributed by that employer into two equal parts. The first part will be contributed towards a severance fund. The severance fund will be used to offer any employee who has been laid off by any of the Employers for longer than his/her EI benefit period $1,200 for each full year of seniority capped at 18 years, provided that the employee severs employment. If there are more employees interested in voluntary severance than money available, employees will be given preference based on their seniority. The second equal part of the money will be retained by the Employers and used for an early retirement program. The Employers will offer employees who are between 50 and 62 $25,000 for early retirement. If there are more employees interested in early retirement than money available, employees will be given preference based on their seniority. Eligible employees must make their decision by April 30, 2002. In the event there is too much money relative to interested employees for the severance program or any of the early retirement programs, the union and employers will discuss what to do about it. Failing agreement, Vincent Ready will determine the resolution, recognizing the Employers’ total obligation of $1,800,000. In addition, Vincent Ready will remain seized of the entire matter in case of any dispute about the interpretation, application or alleged violation of the awarded provisions.
DECISION REGARDING DISTRIBUTION OF THE SPECIAL SERVICE FUND Each Employer will set aside the amount of $50,000.00 for each employee who was employed at the date of ratification and who will be 60 years of age as of December 31, 2002. This amount of money will be discounted by $1,000.00 for each month the employee is over 60 years of age as of that date. However, employees with less than 15 years of service as of December 31, 2002 will be offered three weeks' pay per year of service, decreased proportionately for each month the employee is over 60 years of age as of December 31, 2002. The total aggregate cost to be realized under this heading shall be based on the number of employees that the Employers have represented as being eligible during the Commission hearings. For greater clarity, the total amount of the fund shall be the number of eligible employees multiplied by $50,000.00. From these monies, I recommend that the Employers should first offer an opportunity to any employee, who will be 60 years of age as of December 31, 2002, and who is in active employment or on layoff, a one-time retirement bonus of the monies in the manner described above. Any eligible employee will have a period of two calendar months to accept the bonus and retire from employment. Once it has been determined how many of the eligible employees have elected to retire, then the balance of any funds held by an Employer will be made available to other employees in the reverse order of seniority. Monies not expended by the above process will be offered by the Employers to their employees who are laid off by way of a special all inclusive severance payment of three weeks' pay per year of service. If there are more applicants than money, applicants will be prioritized such that those laid off the longest get first priority. All laid off Pacific Elevator employees will be eligible for this special severance payment. If any money of the Employers is not expended for retirement purposes, or to employees who are laid off, then their employees who are actively at work may accept special severance pay on the basis of two weeks' pay per year of service, capped at $50,000.00. If there are more applicants than money, applicants will be prioritized within the terminal according to the sum of their age plus their seniority with the Employer. It is understood that the sole financial responsibility of each Employer will be the amount contributed on the formula described above and that the monies are only to be spent for the benefit of an Employer's employees. Acceptance of a retirement bonus or a severance payment will result in the termination of the employee and the loss of that employee's recall rights. Additionally, acceptance of these payments will preclude the employee from having rights to other severance pay payments under the Collective Agreement.
I recognize this is a difficult balancing act for the Union. On the one hand the Union originally believed that by enhancing early retirement for senior employees it would provide work opportunities for junior employees on the seniority list. However, on the other hand, economic events in the industry point to a bleak future for junior employees who have been laid off over the past couples of years of ever being called back to work. Hence, the Union feels and has expressed a strong view regarding its obligation to alleviate the loss of employment of its junior bargaining unit employees. In light of the Union’s latest proposal I am awarding the sum of $1.8 million dollars be paid into a fund for purposes of early retirement and severance payments. The Employers will contribute to this fund on the same basis as was contemplated in my Report. I am referring this matter back to the parties with direction to the Union to make a proposal to the Employers within 30 days from the date of this award as to how it wishes to divide the $1.8 million dollars. Should the parties be unable to resolve the distribution of the monies in the fund, either party may refer the matter back to me for resolution. 5. LETTER OF UNDERSTANDING ISSUES (EMPLOYERS’ PROPOSALS 9.1, 9.2, 9.3 AND 9.5) Position of the Union Employers’ proposal 9.1 contains two proposals. The Employers’ proposal to delete LOU #10 is acceptable as a housekeeping matter, if Article 5:00 (a) is amended to delete the reference to the LOU and substitute a named umpire. The Union proposes Vincent Ready, in view of my experience with schedules in the industry. It will be important, says the Union, to have an umpire provision because of the probable implementation of a new continuous schedule during the life of this agreement. The other proposal in 9.1 is a very major issue, and was not identified by the Employers before negotiations during the "aggressive" letter campaign about past practices, nor was it identified during negotiations (unless one counts the very general reference that "all LOU’s attached to the Collective Agreement be discussed and renewed or abandoned in the course of collective bargaining". The effect of this proposal is to ask this arbitrator to award the deletion of a requirement to "to give fair and equal opportunity for consideration for employment to all applicants for employment without discrimination or favouritism", and other such provisions, without the Employers ever having discussed the matter with the Union. In the Union’s submission this behaviour is not consistent with a party’s obligation to make every reasonable effort to achieve an agreement, and the proposal therefore should simply be rejected. With respect to Employers’ proposals 9.2 and 9.3, the Union submits these are more like the matters covered in the letters of notice to the Union, and can be dealt with effectively by means of the process set out in the June 30 recommendations. There is a fair amount to be said about these matters, particularly 9.3, and given the restricted nature of the present submissions, it is not possible to do them justice here. On July 18, 2002, Cascadia and the Union actually resolved the bumping issue for that terminal, and they explicitly agreed that the issue is not part of the present dispute. There is therefore every reason to believe that the bumping issue can be dealt with at the other terminals pursuant to the June 30 process. Another notice issue, presently the subject of grievances, could also benefit from the June 30 process. Watchpersons are currently not on continuous operations contrary to the Collective Agreement and, in some cases, non-bargaining unit employees are doing some of the work - also contrary to the agreement. In the circumstances of the present layoffs, it is the submission of the Union that these jobs should be done by employees in the Union and scheduled on continuous operations basis. The Employers’ proposal 9.5 is a collection of proposed housekeeping changes and the Union has no strong feelings about the changes one way or the other. Position of the Employers Accordingly, the Employers submit that the proposals as identified in the Employers’ last offer should continue to be resolved in the manner proposed. In the alternative, if they are going to be referred to the process referred to in paragraph 9.4, they must be treated as very important issues which will be dealt with immediately. In the submission of the Employers, the establishment of overdue changes in past practice is again central to the ability of the Employers to afford the special severance arrangement. In the absence of dramatic improvement in the efficiency of the operations, the special severance provisions could not be afforded. DECISION REGARDING LETTERS OF UNDERSTANDING ISSUES (PROPOSALS 9.1, 9.2, 9.3 AND 9.5) These issues were canvassed in the Conciliation Commission Report. Briefly stated they deal with a number of past practices and Letters of Understanding. Some are more contentious than others. The Employers continue to aggressively pursue these matters in the context that some of them should be resolved as part of this award. I am of the view that these matters have some historical significance and should be properly discussed and resolved away from the heat of collective bargaining. Therefore, I award that the parties meet and attempt to agree upon changes in the Letters of Understanding and past practices, upon receipt of this award. In the event any matters are not resolved within three months after the publication of this award, or a period of time otherwise agreed between the parties, such matters shall be referred to me by written submission for a final and binding decision on an expedited basis. The terms of reference for the procedure will take into consideration: the purpose of the practice or Letters of Understanding; the impact of removing or continuing the practice or Letters of Understanding; the continued need for such practice or Letters of Understanding, the day-to-day efficiency of the operation, and the impact on employees. I make a final observation on these matters. That is, some of these issues have been a bone of contention between the parties for a period of time covering several Collective Agreements. Therefore, I strongly urge the parties to make a real and concerted effort to resolve these outstanding practices and Letters of Understanding issues. In my view it would be beneficial to the parties’ relationship if they were able to resolve these issues themselves. 6. MANDATORY OVERTIME In the US, numerous states are passing legislation to make mandatory overtime illegal, especially for health care workers. The Canada Labour Code has provisions which appear to regulate overtime and require permits in certain circumstances. Unfortunately, the language is even "denser" than most parts of the Code, and it is difficult to say what is actually prohibited. At minimum, the Code expresses a statutory concern about excessive overtime. It should be noted that PRG also sought mandatory overtime, but the Employer failed to achieve it in the agreement. Many workers welcome overtime, regardless of the effect on them and their families. For those who prefer not to work it, however, there can be no justification for forcing them to do so - particularly in view of the typical consequences of routine overtime. Position of the Employers It is understood that all employees will work such overtime and perform such work as the Employers may deem necessary to carry out its operations. However, it is also understood that the Employers will not unreasonably deny a request from an employee that he or she be excused from overtime work or discriminate against any employee request to be excused from overtime work.
In addition to the foregoing rationale, it is the experience of the Employers that employees refuse to work overtime for improper purposes. That is, employees decline to work overtime for no purpose other than to seek to punish the Employers. In light of the recent labour dispute, it is the belief of the Employers that the absence of a mandatory overtime provision will severely compromise the operations of the terminals. Certain of the terminals will likely have to work on a non-continuous schedule for a period of time while a number of employees remain on layoff. In the past, the Union has attempted to enforce a policy that employees should not work overtime when other members are laid off. If that occurred in these circumstances, it would severely restrict the ability of the Employers to get back in business. For that reason, the Employers submit that the new Clause 5A.02(a) should be implemented as part of the new Collective Agreement.
7. RETENTION OF SENIORITY As a practical matter, employees presently laid off are members of the Union and are entitled to vote on any contract proposals. They would be highly motivated to attend ratification meetings, and the right of recall would be the number one issue for them. Actively employed members who are near the bottom of the seniority list of those still working are also very aware of the advantage of the present contractual provision. Moreover, these two groups would have widespread support in the rest of the bargaining unit to resist any attempt to weaken their recall rights. This support is all the deeper because many of the laid off employees are relatives (often close relatives) of employees who are not laid off... …In discussions with the Employers, the only reason cited for the BCTEOA proposal was the on-going reluctance to work overtime and other shop floor pressure on the Employers to hire back laid off employees. It seems clear, however, that - if a limit on recall rights were introduced - any such pressure would only intensify before the recall cutoff date.
In his submission Mr. Cameron put it this way: You have made it clear to us during mediation that there is no prospect of your award maintaining the present provision for indefinite recall rights. We urge you to make the recall period as long as feasible, particularly for current employees who presently have unlimited recall rights. The Union proposes a recall period of 36 months, with the new provision to take effect at the end of the agreement, and the "clock" for currently laid off employees to begin ticking at that time. In the case of new employees, a lower amount is more acceptable, but still one that recognizes the value placed on this provision by the members of the bargaining unit. The Union also asks that you award the proposal made by the Union in our last ‘retention of seniority’ package, i.e., that in future layoffs, employees have the option, after one year of layoff, of terminating with severance pay on the following basis: 3 weeks per year of service minus any SUB paid to that employee.
In light of the proposal to extend the Collective Agreement to December 31, 2005, the Employers are prepared to amend their proposal so that the effective date of these new provisions would become January 1, 2005. In that way, none of the members of the Union would lose their recall rights during the life of the current Collective Agreement. Clearly, this was the most contentious issue between the parties throughout this set of negotiations. DECISION REGARDING RETENTION OF SENIORITY In the conciliation report I made the following recommendation at page 25: In an effort to resolve this difficult issue to move the parties off their seemingly intractable positions and in recognition that it is the real potential of triggering a labour dispute if not resolved, I recommend that the current provisions in the Collective Agreement remain until June 30, 2003 and effective July 1, 2003 I recommend that the provisions of Article 10 be amended to provide for retention of seniority for 18 months following the date of layoff.
The Union in its submission while recognizing that the current protection of seniority clause would not survive, strongly urged me to adopt its last proposal, i.e., that in future layoffs employees would have the option, after one year of layoff, of terminating with severance pay on the following basis: 3 weeks per year of service minus any Supplementary Benefits (SUB) paid to an employee. The Union also urged me to award a recall period of 36 months with the provision to take effect at the end of the agreement and the "clock" for currently laid off employees would begin ticking at that time. Having considered the positions of the parties on this contentious issue, I award the following: Effective January 1, 2005, the provision of Article 10 will be amended to provide that: (a) Employees with less than 10 years of service prior to the date of layoff shall retain their rights of recall for a period of 12 months from the date of layoff (b) Employees with more than 10 years of service prior to the date of layoff shall retain their right of recall for a period of 24 months from the date of layoff.
It is argued that the provision is important to the employees’ sense of security and their commitment to the industry. Although the Employers apparently put little value in this commitment today, during a bleak but temporary period in grain activity, access to workers with experience in the industry will be important for terminal Employers in the future. The demographic profile of the BC workforce is changing rapidly, and, as more and more workers retire, young workers in urban settings will have many options. Industries that are indifferent to the fate of their workforce will pay a price. At PRG, Article 4.04 was retained. It would make no sense to provide Vancouver workers with hiring rights in Prince Rupert, but not vice versa; and to provide hiring rights for Vancouver workers in Prince Rupert but not in Vancouver. Logically, there should be a corresponding provision in Vancouver, as there should also be in accordance with the replication theory.
DECISION REGARDING HIRING In their submissions, the Employers persist with this proposal as being fundamental to their willingness to pay special severance and retirement monies to those employees who are currently laid off. Simply stated, it is the position of the Employers that they should not be required to employ a person laid off by another terminal elevator. The Union, on the other hand, holds an equally strong view that Article 4.04 ought to remain in the Collective Agreement so that it continues to provide an extra element of job security for members of the bargaining unit. Further, the Union urges me to replicate the PRG Agreement and retain the hiring provisions of Article 4.04. I am of the view that there is a legitimate linkage between the $1.8 million special severance provisions awarded here, and the hiring provisions. Further, I am of the view that, had this dispute dragged on over the next several months, the parties would have, by necessity, reached a compromise on this matter. That said, I have decided that Article 4.04 of the Collective Agreement be deleted from the Collective Agreement. However, I have determined that this provision will not be effective until January 1, 2004. This is to permit employees to determine whether they wish to take severance pay or take their chances of re-employment in the industry during 2003. Further I order that effective January 1, 2004 Article 4.04 be replaced with the following Letter of Understanding: Employees who are laid off will be given bona fide consideration for employment at other terminal elevators. This consideration shall include a review of their experience and training to perform the available work.
Current employees who are either millwrights or sheet metal workers will be given the opportunity to train in the other trade on a voluntary basis. No employee will be discriminated against on the basis of their choice. The Employers may require employees posting into the apprenticeship position to become dually qualified. The Employers will maintain separate metalworker and sheet metal departments until sufficient employees have the expertise in both trades to avoid any increase in contracting out. Vince Ready will remain seized of any implementation issues.
The classifications of millwrights and sheet metal workers shall be consolidated into one classification on January 1, 2003. The consolidated classification shall require no more than one charge hand. All new apprentices in the new Mechanical Trade will be trained as millwrights and will be offered additional sheet metal modules as determined by a joint committee of the Employers, the Union and BCIT. Existing sheet metal tradesmen and millwrights will be grandfathered in that trade if they so choose but they will be required to assist another millwright or sheet metal worker within the terminal. Grandfathered tradesmen will be classified within the Mechanical Trade classification.
Trade would be created. DECISION REGARDING MECHANICAL TRADE
Having considered both submissions I award:
The classifications of millwrights and sheet metal workers shall be consolidated into one classification on January 1, 2004. The consolidated classification shall require no more than one charge hand. All new apprentices in the new Mechanical Trade will be trained as millwrights and will be offered additional sheet metal modules as determined by a joint committee of the Employers, the Union and BCIT. Existing sheet metal tradesmen and millwrights will be grandfathered in that trade if they so choose but they will be required to assist another millwright or sheet metal worker within the terminal. Grandfathered tradesmen will be classified within the Mechanical Trade classification. No employee will be discriminated against on the basis of their choice.
Finally, I direct the parties to conclude all of the procedural issues referred to them under this award and execute a Collective Agreement as soon as possible after the publication of this award. In any event, no later than June 30, 2003, or a date agreed by the parties.
I shall retain the necessary jurisdiction to resolve any issue arising out of the implementation, application or interpretation of this award and to settle the terms of the agreement which includes any and all return to work issues.
Dated at the City of Vancouver in the Province of British Columbia this 8th day of January, 2003. Vincent L. Ready
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