Saturday, April 20, 2013

Summaries of recent BC Arbitrations --Guest Post by Diane Maclean


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.

Martin-Brower of Canada Co. and Teamsters Local union No 31, 2013CanLII 950 ((BC LA) (January 11, 2013, Arbitrator R.K. McDonald): Policy Grievance regarding engineering standards (employee productivity) and individual grievances (policy grievance dismissed and 16 of 17 individual grievances dismissed)
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.

Construction Labour Relations Association of BC v. Construction,Maintenance and Allied Workers Bargaining Council, 2013 CanLII 3548 (BC LA), (January 28, 2013, Arbitrator Michael Fleming: interest grievance regarding the appropriate rate of pension contributions in the Semi-Skilled Carpenter classification (SSC).
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”

1 comment:

donald lacey said...

The third part amounts to the muzzling of our rights as workers to free speech. Dan was told he was terminated the night before he was called in to attend a disciplinary meeting. He decided to talk with fellow workers on their way into work while holding a sign stating his situation. He advised brothers and sisters to attend work but that his treatment was unjust. When HR came out to threaten to call the police he told them he was doing nothing wrong and was not on their property. They wound up getting a ride back into the mill with him to save the long walk ((Dan had the car). The company has poisoned this well trying to make an example of this man. Dan is a hero in many CEP1119 workers eyes. We are proud to call him friend and brother.