In a decision dated July 26, 2001, arbitrator H. Allan Hope, Q.C. allowed the grievance of CEP Local 298 alleging that the Eurocan Pulp and Paper Company had breached the terms of the collective agreement when it reduced by two members the size of a shiploading gang during the loading process.
Shiploading at the facility in question could be done by either a nine or a seven person crew, depending on the ship. The grievance arose after the loading of one of three ships in dock, which had initially required a nine-person crew, had reached a stage where a crew of seven could load the ship. At that point, the company reduced the nine man crew to seven in order to form another crew to load the third ship.
The company claimed that, although it had not reduced crews in years past, this fact did not prohibit it from doing so in unusual and emergency situations such as this one. The company further claimed that the fact that such a reassignment was permissible was especially clear in light of the mutual recognition between the parties of the need to achieve more cost-effective work practices. The company further argued that the myriad discussions that had taken place between the parties regarding flexible work practices indicated that the company would be permitted to assign shiploaders not engaged in shiploading to other tasks.
The union first argued that the collective agreement stipulated the size of the shiploading gangs required for each type of loading. Second, the union alleged that should additional shiploaders be required, the appropriate method for assigning such work was listed in another section of the collective agreement. Third, the union claimed that while the discussions with the company regarding flexible work practices did contemplate assigning shipworkers to other tasks, that those discussions did not contemplate breaking up the shiploading crew during the loading process. Lastly, the union relied on the past practice of the company of not reducing the shiploading crews during the loading process.
In finding for the union, the arbitrator noted that there was “no provision in the collective agreement that contemplates that gang sizes will change in response to the progress of loading a particular hold or ship.” He also noted that given that the agreement did not address the particular matter at issue in this grievance, and that in light of the discussions surrounding flexible work practices, that any doubts surrounding whether or not the language of the agreement and discussions regarding flex practices could be resolved by examining the past conduct of the parties. This past conduct and the lack of any express provision in the collective agreement permitting this type of flexible work practice determined the matter in the union’s favour.
Note, however, that as no employees lost any wages as a consequence of the employer’s actions, the unions claim for damages calculated on the basis lost wages was groundless. Therefore, any damages awarded would be punitive, and the facts of the case, namely that the company had a valid business case objective for reassigning the shiploaders, did not support an award of punitive damages.