Arbitration
Summaries – January 2013
There were three
arbitrations reported on CanLII as well as a further thirteen reported on Quicklaw.
Brief summaries are provided for two interesting CanLII decisions and even briefer
summaries are provided for the ones reported on Quicklaw.
Background
The policy grievance concerned the employer’s introduction of
engineering standards for the employees in the warehouse. The union also filed
individual grievances regarding discipline.
The employer argued that implementing the standards was a
managements right. The standards were reasonable and the employees were given
an opportunity to ‘ramp up’ to the standards. The union was invited to have its
own expert take part in the process but they declined. The individual grievors
were disciplined for their failure to meet the standards over a period of time.
They were offered training and coaching to meet the standards and disabled
employees were exempted.
The union argued that the employer did not have the right to
unilaterally impose the engineering standards and that’s why they didn’t
participate in the process of creating the standards. Further, the standards
are unreasonable and unfair and some employees are concerned about their
well-being, safety, and future employment.
Analysis and Decision
The arbitrator found that the implementation of the engineering
standards was within the employer’s management rights. In particular, the
arbitrator found that the employer had not altered or added conditions to the
collective agreement (as had been argued by the union), stating:
… The Employer
sought to have its employees give a fair day’s work for agreed rates of
remuneration. I do not find that the employer violated Article 1 of the
Collective Agreement. Specifically, I do not find any breach of duty to
co-operate by the employer that would bar or impede its management rights in
implementing engineering standards. I also find some merit in the Employer’s
submission that it was the Union that refused to co-operate by declining the
invitation to engage its own expert in the process of establishing the
standards.
The arbitrator also found that the employer had not sought to
include productivity numbers in collective bargaining or that the Employer had
ever indicated that the Employer’s previous practice would not be altered or
changed.
Were the standards unreasonable as argued by the union? In
considering this issue, the arbitrator commented:
In
support of its contention the Union has introduced a body of evidence designed
to challenge the formation, establishment and administration of the standards
at the Employer’s warehouse. I find that what prompted the challenge was
the realization that under the standards employees were accountable coupled
with a genuine concern expressed by some of them as to their well-being and
future employment with the Company.
Having
had the benefit of many days of hearing in evidence with numerous documents, I
have been driven to the conclusion that the Union made a
tactical error in not accepting the invitation to engage their own expert in
the beginning or even while the standards were evolving. The invitation
was even extended as this matter was headed to arbitration…
The arbitrator found that
the level of productivity was set was based on an average level of performance
and not based on perfection. The arbitrator
concluded that the standards were not unreasonable. He also acknowledged the evidence of the
Employer that the standards were designed to be fair and safe and the goal was
for individual employees to achieve the average level of performance. Further,
the arbitrator stated:
I also observe
and conclude that much of the criticism raised by the employees and the Union
are expressions of opinion which are attempts to question the expertise of
those who are better qualified and trained to deal with such matters. I must
refer once more to the fact that the Union chose not to engage its own expert
to deal with the standards.
The arbitrator dismissed the policy grievance. He also dismissed 16
of 17 individual grievances. He concluded that the Employer was not required to
show that a failure to meet standards was deliberate (i.e., culpable) – the
Employer was entitled to discipline employees for substandard job performance.
Background
In an interest arbitration award dated last October, the arbitrator
set the hourly wage rates for SSC as a percentage of a Journeyperson’s straight
time hourly wage rate, ranging from 55% to 90%. There now disagreement about
the appropriate pension contribution. The union says that it should be the same
rate as the Journeyperson position. The employer argues that consistency with
other comparable trades is an important factor, stating “one of its bargaining
objectives was to ensure that similar trades have consistent terms for the new
semi-skilled positions now found in those agreements”. Further, it would not
make sense for the SCC rate to be the same as the Apprentice position but for
pension contributions to be different.
Analysis and Decision
The arbitrator had noted in his earlier award that the terms of
earlier awards (Operating Engineers and Cement Mason’s interest arbitrations)
were to “apply presumptively” to the CLR-CMAW interest arbitration. The Cement
Masons’ agreement contains a semi-skilled position and the wage and pension
contribution rates mirror those of the Apprentice and are the same percentage
of the Journeyperson rate. The arbitrator said that what the union was seeking
would not be consistent with the principle that monetary packages between the
two unions representing carpenters be comparable. Therefore, the pension
contributions should be consistent with and reflect the wages rates established
for that position, as is the case for the Apprentice position.
Quicklaw
Decisions – Brief Summaries (note: Quicklaw is not a free website but you can access it for free at a law library in the law courts or perhaps at a public library. The decisions may eventually be posted on CanLII and it may be useful to do a CanLII search from time to time)
British Columbia Public Service Agency v. British
Columbia Government and Service Employees’ Union (Campbell Grievance), [2013] B.C.C.A.A.A. No. 3 (Arbitrator McConchie): The grievor had
been seriously injured in an accident. She was able to receive long-term
disability benefits from her employer. The disability plan provided that if an
employee was able to recover future wage loss in Court, then the long-term
disability benefits would be decreased so that her combination of benefits and
court wage loss recovery did not exceed 100% of what the employee would have
been paid if not injured. The grievor recovered $400,000 for future loss of
earnings. At issue was how to compute the amount by which her disability
benefits would be decreased. The employer argued that the $400,000 was the
“present value” of her future income and that all other amounts must be
converted to their present value before doing the calculations. This was a
departure from how other calculations had been done in the past, including an
arbitration award issued earlier by the same arbitrator. The arbitrator
provided an interesting discussion about when it is appropriate to depart from
earlier arbitration decisions about the same issue. The arbitrator eventually
decided that the parties’ intention was not to use the present value approach.
This decision discusses the approach used in the Courts to establish future
wage loss. It also explains why that parties to a collective agreement do not
have to use the same approach, although they certainly could choose to do so.
Timberwest Forest Co. v. United Steelworkers, Local
1-1937 (Woodlands Letter Grievance), [2013]
B.C.C.A.A.A No. 7 (Arbitrator Lanyon): Timberwest subcontracted its timber
harvest to a third party, who became the successor employer. This contract had
a five year term, but rates after the first year could be renegotiated.
Timberwest and the successor employer were not immediately successful
negotiating rates for 2012. During these negotiations, the successor employer
laid off all of its employees for approximately two months. The union seeks the
wages lost during this period. The arbitrator concluded that the union was
seeking “a binding grievance/arbitration dispute resolution system that would
prevent the stoppage of work during the resolution of rate disputes … “, which
did not exist. The arbitrator concluded that the terms of the timber harvest
agreement did not conflict with the terms of the collective agreement.
EV Logistics, British Columbia General Partnership,
Ambient Centre and Perishable Centre v. Retail Wholesale Union Local 580
(Benefits Review Grievance), [2013] B.C.C.A.A.A. No. 4 (Arbitrator Brown): The collective
agreement had a benefits review provision where, in the event of a stalemate,
the matter could be referred to arbitration. The arbitrator retained the status
quo for benefits and provided directions to the parties to assist in
determining the benefits for the future.
Husband Food Ventures Ltd. (D.B.A. IGA Store No. 11)
v. United Food and Commercial Workers International Union, Local 1518
(Termination Grievance), [2013] B.C.C.A.A.A.
No. 5 (Arbitrator Sanderson): The grievor made non-specific threats that she
would come into the store and shoot people if she did not get a particular
promotion. This led to her dismissal. The arbitrator acknowledged that making
threats such as this is an extremely serious matter and termination is usually
the consequence. He then applied the traditional Wm. Scott analysis and found there was just and reasonable cause
for some form of discipline, but that the dismissal was an excessive response
in all of the circumstances of the case. The grievor was reinstated without pay
(more than a year’s wage loss) and ordered to take anger management counseling.
Health Employers Assn. of British Columbia v. Hospital Employees’ Union (Rothenburger Grievance),
[2013] B.C.C.A.A.A. No. 21 (Arbitrator Gordon): the grievor requested that her
seniority follow her from a facility within the Vancouver Island Health
Authority to a facility within the Fraser Health Authority, pursuant to a new
provision in the collective agreement. This provision allowed an employee who
voluntarily terminates employment with an employer who is party to the
agreement and who is employed within 180 days with the same employer or another
employer who is party to the collective agreement, then the employee is
entitled to portability of seniority. In this case, the employee was
concurrently employed at a facility in Nanaimo and two facilities within the
Fraser Health Authority. The employer argued that the provision did not apply
to the grievor because it was intended for some form of fresh start and not to
concurrent employment where the employee chooses to resign from one employer
and continue working at the other. The arbitrator considered whether the
parties had intended the language of the new provision to apply to the
grievor’s circumstances. The arbitrator found that the language of the
provision contemplated an employee moving or transitioning from a position at
one employer to a position at another employer within the specified time frame.
The grievor’s situation did not fit into this and the grievance was dismissed.
Catylst Paper, Port Alberni Division v.
Communications, Energy and Paperworkers Union of Canada (Cairney Grievance), [2013] B.C.C.A.A.A. No. 6 (Arbitrator Nodrlinger): The grievor, a
probationary employee, was dismissed within one month of hiring because of
supposed absenteeism and the smell of alcohol on his breath. The arbitrator
said that the standard of review in the case of a probationary employee is less
than that of an employee past the probationary period. Nevertheless, there are
five conditions to justify dismissal: legitimate standards of work performance
that have been conveyed to the employee; proper and ample direction have been
provided; the employee has been given an opportunity to meet the standards and
has been properly evaluated; and there have been no unreasonable or discriminating
acts. The arbitrator noted that the grievor believed his performance had been
good, based on evaluations and comments made to him. Although the employer
relied on three incidents when the grievor either left work early or was late,
on two occasions, he did so with the employer’s permission, and it is not
reasonable to take these into account when assessing the grievor’s suitability.
On the other occasion, the grievor was late because he forgot his swipe card at
home and he did not know his supervisor’s number or that he could get a
replacement card at work. His conduct on that date arose from a
misunderstanding that could have been corrected with a warning. In regard to
the alcohol issue, there were witnesses who testified they could smell alcohol
on his breath and other who testified they did not. The arbitrator commented
that the employer did not raise this issue with the grievor prior to his
expulsion from the workplace and did not give him an opportunity to show that
alcohol was not a problem. Over all, the real problem was the employer’s
failure to warn – the grievor was not given an opportunity to understand and
respond to the employer’s concerns before his termination. The arbitrator
ordered reinstatement.
Howe Sound Pulp and Paper Corp. v. Communications,
Energy and Paperworkers Unino of Canada, Local 1119 (Widsten Grievance), [2013] B.C.C.A.A.A. No. 11: The grievor, a millwright, got into a
confrontation with a contractor’s service representative (“representative”). It
appears that the millwrights felt that the representative was performing their
work. The employer terminated the grievor’s employment saying it was a
violation of a last-chance agreement. At the arbitration, the representative
and the grievor provided very different versions of events. The arbitrator
described the representative as pompous and that he felt it was always someone
else’s fault when a disagreement occurred. Therefore, the arbitrator found the
grievor to be more credible. The arbitrator noted that the last chance agreement
could only be viewed as a very serious letter of warning, given that the union
had not signed the agreement. The
arbitrator applied the Wm. Scott
analysis and found that there was just and reasonable cause for some sort of
discipline. Although his behavior was not as serious as that alleged by the
representative, it was inappropriate to enter into a verbal altercation and
threaten that the Union “would break him”, accompanied by punching his fist
into his palm. In deciding whether
dismissal was an excessive response, the arbitrator said there were some
mitigating factors. First, there was provocation. As well, the employer’s
investigation was flawed, in that the employer never tested the validity of the
representative’s statement. Finally, the grievor had worked under a last chance
agreement with good behavior for almost two years. Therefore, dismissal was
excessive in the circumstances. The arbitrator was of the view that the
employment relationship could be restored. Although counsel suggested that she reserve
on the question of what measures should be substituted for the dismissal, the
arbitrator held that, in order to avoid any further delays, the grievor was to
be reinstated as soon as possible and that further submissions regarding the
appropriate penalty would be arranged. [Note: The employer applied to the LRB
for a review of this award: Howe Sound Pulp & Paper Corporation v.
Communications, Energy and Paperworkers Union of Canada, Local Union No. 119,
[2013] BCLRB No. B32/2013. Although the grievor was dismissed on October 5,
2012, the employer had advised the union that it would be relying on the
grievor’s conduct on October 10, 2012, “but only for the purpose of answering
the third branch of the Wm. Scott
test: If the response was excessive, what other measure should be substituted
as just and equitable?” The union did not agree that the conduct of October 10
was relevant and proposed to the employer that this evidence not be introduced
until the arbitrator made a finding on the first step of Wm. Scott. The union suggested that, at that point, they could make
submissions regarding the admissibility of the October 10 evidence. Therefore,
the parties agreed to ask the arbitrator to reserve jurisdiction to consider
the third question in Wm. Scott. The employer
argued it was denied a fair hearing because the arbitrator ignored the parties’
agreement and, without advising the parties, reinstated the grievor without
hearing the parties’ submissions on the issue. The LRB found there was a denial
of a fair hearing because “ the Arbitrator ruled in favour of reinstatement
(albeit on an interim basis) and found the employment relationship capable of
being restored before the parties had an opportunity to make submissions and
call evidence on the third Wm. Scott
question” with resulting prejudice to the employer. The Board set the order for
reinstatement aside and directed her to complete the hearing with respect to
the final Wm. Scott question.]
British Columbia Hydro and Power Authority v. Canadian
Office and Professional Employees Union, Local 378 (Position Grievance), [2013] B.C.C.A.A.A. No. 8 (Arbitrator Kinzie): the issue was
whether a new position of ‘Capital Safety Planner’ should be excluded from the
bargaining unit. The issue was whether capital safety planners are employed in
a confidential planning or advisory position in the development of management
policy for the employer. The arbitrator was not satisfied that the planners
were employed in that capacity, finding that they would be implementing policy
instead. As well, the arbitrator was not persuaded that project safety was a
confidential matter or that conflicts of interest would often arise. Therefore,
the planners were to be included in the bargaining unit.
B.A. Blacktop Ltd. v. Teamsters, Local Union No. 213
(Proper Pay Rate Grievance), [2013]
B.C.C.A.A.A. No. 12 (Arbitrator Lanyon): The union argued that certain work
(haulage of millings/grindings) was paving work and had to be paid using the
rates in The Asphalt Agreement (“TAG”). The employer said it was not paving
work and is paid under a different collective agreement, The Utility Agreement
(“TUG”). The arbitrator considered the past practice and stated: “I conclude
that over the period of fourteen years, and several rounds of collective bargaining,
the Union knew, or ought to have known, that the principal rate among the
employers signatory to the TAG Agreement for the hauling of millings/grindings
material was to pay the TUG rate. The Union negotiated and administered these
collective agreements over all those fourteen years in which its members were
consistently being paid the TUG rate. Further, each of these bargaining units
was represented by a shop steward from those employees who were being paid the
TUG rate over those fourteen years.” The arbitrator dismissed the grievance,
concluding that under the TAG Agreement, the employer is obligated to pay the
TUG rates for the hauling of millage/grindings.
BC Ferry Service Inc. v. British Columbia Ferry and
Marine Workers’ Union (Travel Time Grievance),
[2013] B.C.C.A.A.A. No. 14 (Arbitrator Korbin): in the collective agreement, if
the employer directs an employee to take a course, then the employer bears the
full cost of the course including necessary travelling time and travelling
expenses. A dispute arose over two issues. First, was the employer ‘directing’
employees to take a particular course? The second issue was whether the
employer was correct in not providing travel time when the course was offered
in the same general geographical area, but farther away than the employee’s
regular work location. In regard to the first issue, the arbitrator concluded
that the courses were being taken at the ‘direction’ of the employer. In regard
to the second issue, the arbitrator found that the employer had not established
that there was a past practice of not paying travel time when the course was
conducted in the same regional area or community. The arbitrator also stated:
“… in the instant case the employer made an operational decision which was in
place for over 17 years, but which was unclear and which the union hierarchy
was only fully aware of many years later and at that time, it did object and
carried forward these grievances. In these circumstances, the Employer’s
practice, on its own, is not sufficient to establish an unequivocal
representation from the Union leading it to believe that the Union had
acquiesced in this policy. In my view, it would be inequitable and unfair to
find that an estoppel arises preventing the Union from relying on its collective
agreement rights."
Gateway Casinos & Entertainment Ltd. (Grand Villa
Burnaby) v. British Columbia Government and Service Employees’ Union
(Application of Seniority Grievance), [2013]
B.C.C.A.A.A. No. 15 (Arbitrator Germaine): This was an interest arbitration
concerning classification seniority, which determined the order in which
employees select their shifts and hours of work. However, strict application of
the language of the collective agreement created issues, so the parties amended
the seniority language to clarify their intention and to simplify some of the
language. This did not resolve all of the issues and the parties identified
alternative outcomes that they were prepared to accept. Neither party advocated
a particular outcome, but presented consideration relevant to the alternative
potential determinations. The arbitrator considered the choices and chose the
one that “provides greater potential for a final resolution of the continuing
classification seniority issues”
