Diane MacLean has kindly provided the following summaries of labour arbitration summaries released February 2013
Arbitration Summaries – February 2013
There were seven arbitrations reported on CanLII as well as a further six reported on Quicklaw. Brief summaries are provided for the CanLII decisions and even briefer summaries are provided for the ones reported on Quicklaw.
The News Group, a Division of GreatPacific Enterprises Inc v. Teamsters Local Union No 213, 2013 CanLII 6407 (BCLA), February 4, 2013 (Arbitrator Mark Brown): grievance regarding displaced fleet employees (settled)
The settlement made provisions for fleet employees who were permanently displaced from the fleet and for those employees remaining in the fleet, in terms of their classification, wages, seniority rights, employees returning from leave, etc.
Cariboo Pulp and Paper Company v.Communications, Energy and Paperworkers’ Union of Canada, Local 1115 (BC LA), February 5, 2013 (Arbitrator John Kinzie): grievance of denial of short term disability benefits (dismissed)
The claimant was a head operator at a pulp and paper company. He applied for short-term disability benefits, claiming he was suffering from extreme anxiety because of a suspected bladder cancer. The carrier was not satisfied that his condition prevented him from performing the essential duties of his job and therefore he was not disabled.
Analysis and Decision
The arbitrator first addressed the issue of the burden of proof. He agreed with a previous arbitrator that the dispute resolution process here involved an ‘inquisitional’ proceeding rather than an ‘adversarial’ one. The arbitrator would have the authority to gather further information if necessary to resolve the disputed claim. There is no burden of proof on the claimant to prove he is disabled or for the carrier to prove he is not.
The question to be addressed in this appeal is whether the severe anxiety experienced by the claimant prevented him from performing the essential duties of his position. The arbitrator reviewed the duties of the head operator position and found that the essential duties were: monitoring the operation of various systems and pieces of equipment primarily through a computer in a control room, and guiding the work of a group of employees in relation to the maintenance and operation of that equipment. The work was not physically demanding and there were other workers to assist him. The arbitrator concluded that the anxiety arising from a suspected cancer diagnosis would not have prevented the claimant from performing the essential duties of his job. He understood that the claimant might not have felt like working, but that was not the test under the short-term disability plan.
Dryco Drywall Supplies Ltd. V. Teamsters Local Union No. 213, 2013 CanLII 7695 (BC LA), February 19, 2013 (Arbitrator Mark J. Brown): termination grievance (allowed; suspension substituted for termination)
The grievor was passing by another employee. He saw that the employee’s safety vest trim was ripped and that threads were hanging down. Without thinking, he flicked his lighter and the trim actually caught fire. He stopped the flames and when a piece fell to the floor, he stepped on it. He then went outside. The other employee, the branch manager and a customer then noticed that he was on fire. While assisting the other employee, the customer burnt his hands. When the grievor found out what happened, he apologized immediately. The grievor admitted that, while he had no intention to light the vest, his actions were stupid. The employer terminated his employment on October 30, 2012, stating that the employer does not tolerate horseplay on the job.
Analysis and Decision
The arbitrator applied the usual Wm. Scott principles and decided that the employee had just and reasonable cause to impose some form of discipline. He then considered whether termination was an excessive response in the circumstances. He considered the following:
· The incident was serious and the other employee could have been seriously hurt and the customer could have suffered a more serious injury;
· The grievor’s actions were not malicious and he did not knowingly risk injury to others, but his actions were careless and stupid;
· When the grievor went outside, he believed the flames were out;
· He did apologize as soon as he knew what happened – he took responsibility right away;
Given all of the circumstances of the case, the arbitrator concluded that termination was excessive. Given the serious of the incident and his carelessness, a lengthy suspension is appropriate “to bring home the seriousness of the issue so that he does not repeat any sort of similar behaviour”. The employee was to be after a four-month suspension without pay.
Catalyst Paper Corporation v.Communications, energy and Paperworkers Union of Canada, Local 1123 (BC LA), February 20, 2013 (Arbitrator Robert Pekeles): grievance regarding the entitlement of certain employees to receive recalculated long term disability benefits (“LDT”)(allowed)
The parties had new wording in their collective agreement:
Employees who are under age 60 years of age will have their future disability benefit recalculated by applying the contractual wage increases that were applied in each year, during the period of their disability, to their long term disability benefit.
A dispute arose whether the increases in the benefits were retroactive, that is, would they apply to members of the union, from a particular mill, who were currently on LTD benefits?
The union said there was a discussion about retroactivity during collective bargaining and that everything was to be retroactive to May 1, 2008, except for weekly indemnity benefits, group term life insurances, and accidental death and dismemberment insurance. The LTD was an insured plan and if the premiums went up the union would pay their agreed share, which was 30%.
The employer testified that it was very focused on controlling costs and that the mill was closed. The employer said there was no discussion at collective bargaining about retroactivity with respect to LTD. The employer said there were no employees available to pay the premiums at the mill, but the employer agreed there were employees at other mills (approximately 1,100).
Analysis and Decision
The employer had argued that there was an onus on the union to show that there was an agreement in “clear and unequivocal terms” to provide a monetary benefit. The arbitrator referred to the decision of Arbitrator Hall in Catylst Paper (May 3, 2012), where the arbitrator referred to the reason of arbitrator Korbin in the Board of Education of School District No. 36 (Surrey)/BCPSEA v. BCTF/Surrey Teachers’ Association (March 6, 2009), unreported:
With respect to the Employer’s reliance on the Wire Rope and Noranda line of cases, arbitrators have not, in recent history, strictly adhered to the notion that the Union bears any additional onus or burden in cases such as this. It is my view that as this is a matter of interpretation, my role is to find the mutual intention of the parties within the competing interpretations put forward by the parties. In such an analysis, neither party bears any special onus of proof. (page 13)
The arbitrator noted that this was a very recent decision involving the “very same” parties, and decided to adopt Arbitrator’s Hall’s views as setting out the appropriate arbitral approach to the issue in the present case.
The arbitrator considered the applicable provisions of the collective agreement and the parties’ arguments about the meanings of the provisions taken as a whole, in regard to the entitlement of members on LTD to increased benefits in the future, based upon contractual wage increases. This decision is an interesting example of the reasoning applied by an arbitrator when interpreting clauses in a collective agreement.
The arbitrator concluded that change in the collective agreement was meant to be effective from the date of ratification. He did not agree with the employer that the improvements would only apply to employees who started their LTD benefits during the term of the current collective agreement. Therefore, the arbitrator held that the employer had breached the collective agreement. The employer asked for an order requiring the union to pay its share of the costs of the benefit before the benefit was provided to existing LTD claimants. The arbitrator was not prepared to do so at that time, leaving the issue to the parties to resolve but reserving jurisdiction if they are unable to do so.
West Shore Parks and Recreation Society, 2013 CanLII 9138 (BC LA), February 22, 2013 (Arbitrator John Kinzie): policy grievance regarding scheduling regular employees to work weekends without agreement with union (dismissed)
The employer operates recreational facilities on Vancouver Island and employs workers in tradition office and clerical positions but also employs outside workers including park attendants, lifeguards, maintenance workers, etc. The employer argues that it is entitled to schedule regular full-time employees working in ‘continuous operations’ to work weekends. The employer relies on this article of the collective agreement:
Except for personnel engaged in continuous operations, regular employees shall not ordinarily be required to work on a Saturday or Sunday except in special circumstances.
The union says that the employer must get the Union’s agreement before a part of its operations can be deemed to be ‘continuous operation’.
Analysis and Decision
The arbitrator reviewed the wording with respect to this issue in the bargaining history and the various collective agreements between the parties. He noted that employees engaged in continuous operations were a separate and distinct group from inside and outside staff who generally worked Monday to Friday. The arbitrator did not agree with the union’s contention that only 24-hour, seven-days-a-week operations were considered to be continuous. However, the employer, if challenged, would have to establish that the operation either needed to be operated on a continuous basis or that it needed to be operated at times outside the normal work day. The arbitrator concluded that the employer can require regular full-time employees to work weekends without the agreement of the Union, if the operation in which those employees are working is a continuous operation within the meaning of the collective agreement. The Union’s agreement was not necessary for an operation to be deemed ‘continuous’.
Columbia Containers Ltd. V. TeamstersLocal Union No. 31 2013 CanLII 10700 (BC LA), February 28, 2013 (Arbitrator R.K. McDonald): grievance regarding rates for employees driving a new kind of truck (dismissed)
The employee’s current collective agreement provides for hourly rates for company drivers and dependent contractors. In regard to new trucks and trailers and classifications, for which rates of pay were not established in the collective agreement, the contract provided:
… the Company shall advise the Union as far in advance as possible, and not less than thirty (30) days prior to implementation, the matter shall become the subject of discussion between the Parties for rates governing such trucks and trailers and classifications of employment. The Companies and the Union shall finalize within thirty (30) days after such implementation a rate to be established and such rate to be retro-active to date of implementation.
The employer advised the union of its intention to introduce a new type of truck and the union was invited to discuss rates of pay for the new driver. After some communications, the employer advised the union that it was hiring a drive to operate the pickup truck at the rate of $18.00. Note that this is $5.35/hr less than the current company driver rate under the collective agreement.
The employer noted that the pickup truck does not have airbrakes and only requires a Class 3 license without an air endorsement and substantially less “of a license and skill set” was required to operate the trucks than the current $23.35 classification”. At the hearing, the employer also said that the new truck and driver were used in the “movement of empty containers and other minor duties which were not comparable to the capacity and work of the other trucks nor to the licencing of the drivers employed and utilized” in the higher paying classification.
Analysis and Decision
The arbitrator found that the employer acted properly under the collective agreement – that the employer had established a new type of truck and new classification of driver. Further, it was not for the arbitrator to determine whether $18.00 an hour was a fair and proper wage for the position. If the parties could not agree on a rate, the matter should be expressly put to interest arbitration.
Quicklaw Decisions – Brief Summaries
Southwest Contracting Ltd. V. Teamster, Local Union No. 213, [2013} B.C.C.A.A.A., February 5, 2013 (Arbitrator Stan Lanyon, Q.C.): The collective agreement provided that the employer would not contract out bargaining unit work unless all of the dependent contractors covered by the collective agreement were working. The employer was contracting out work for a certain kind of truck that none of the dependent contractors currently owned. The arbitrator held that the employer was obligated dispatch dependent contractors if they purchased that kind of truck.
Catalyst Paper Corp. (Powell River Division) v. Communication, Energy and Paperworkers Union of Canada, Local 76,  B.C.C.A.A.A. No. 25, February 12, 2013 (David C. McPhillips): The employer terminated an employee a few days before the expiry of his probationary period because it was concerned about absenteeism. The arbitrator held that the appropriate test is ‘suitability’. This includes making a fair assessment and giving the employee a fair opportunity to prove his or her ability. The employee should know the performance standards, and if his performance is unsatisfactory, be given a reasonable opportunity to improve. The arbitrator ordered reinstatement to another probationary period but no back pay because the grievor was responsible for some of what happened.
Nigel Services for Adults with Disabilities Society v. Construction and Specialized Workers’ Union, Local 1611,  B.C.C.A.A.A. No. 24, February 12, 2013 (Arbitrator David C. McPhillips): The employer transferred all of its assets to a designated employer under the Public Service Act, whose employees are statutorily included in bargaining units represented by other unions. Virtually all of the employees continued to work for the new employer and retained their seniority. The Union asserted that employees with more than 10 years’ service were entitled, as severance pay, to payment of a portion of their unused sick banks. This amount became payable if an employee “is terminated because the employee's services are no longer required due to closure of the health care facility, job redundancy, etc.”. The arbitrator dismissed the grievance stating that the purpose of severance pay is to compensate for loss of employment and seniority rights. As well, where a significant monetary claim is being made, the entitlement is expected to be expressed in clear and unequivocal terms.
British Columbia Teachers’ Federation v. British Columbia Public School Employers’ Assn., B.C.C.A.A.A. No. 17, February 15, 2013 (Arbitrator James E. Dorsey, Q.C.): Two teachers went on maternity and parental leave. At that time, the employer issued a form letter identifying maternity leave and parental leave period ending 52 weeks after the expected birth date. The letter said that, six weeks prior to return, the teacher had to confirm the exact date of return with the employer. The teachers wanted to return early and gave the required six weeks’ written notice. They were not allowed to return to work on the proposed date because it did not coincide with a “natural break” in the school year. The union argued that this was a contravention of the Employment Standards Act but the arbitrator did not agree. The union also alleged a breach of the collective agreement. The arbitrator noted that the collective agreement did not address early termination of parental leave. However, the employer established and communicated to the grievors the terms on which it would accept an early return from leave as an exercise of its residual management rights, that is, providing written notice of the proposed return date. Then, without notice to the grievors, the employer imposed additional requirements by applying an unwritten practice unknown to the teachers or their union. The arbitrator allowed the grievances, stating:
These leave terms created an employer endowed entitlement that flowed from the parental leave provision of the collective agreement because of the manner in which the employer chose to administer the leave and communicate to each of them the terms for early return from their parental leaves. The employer was in breach of the collective agreement by later unilaterally revoking this term and the accompanying entitlement for each of them.
Unite Here, Local 40 v. ECN Holdings Ltd. (Vacation Inn) (No Evidence Motion Greivance),  B.C.C.A.A.A. No. 20, February 18, 2013 (Arbitrator James E. Dorsey, Q.C.): New owners of a hotel decided not to renew the lease of a subcontractor who managed a pub in the hotel and the employees were given layoff notice. The union grieved the pub closure and layoff notice and later enlarged the scope of the grievance by alleging unfair labour practices in regard to employees’ applications for decertification and to vary the bargaining unit. At the end of the union’s evidence, the employer made a no evidence motion. The arbitrator considered whether adjudicating the motion would “facilitate a fair and timely resolution of the dispute, further the purposes of the Labour Relations Code and enable an arbitrator to meets his or her duties under Code”. The arbitrator dismissed the motion, stating:
It is far from clear that the interest in not having the employer defend an allegation for which there might be no evidence adduced by the union will, on balance, in the circumstance of this grievance arbitration, facilitate either a more orderly, constructive or expeditious resolution of the dispute.
British Columbia Public School Employers’ Assn./School District No. 36 (Surrey) v. British Columbia Teachers’ Federation/Surrey Teachers’ Association,  B.C.C.A.A.A. No. 22, February 22, 2013 (Arbitrator Joan M. Gordon): The union had advanced two grievances to arbitration, both dealing with hours of work. The union’s counsel proposed having the same arbitrator for each grievance but the employer’s counsel did not agree. At the arbitration, the employer made a preliminary objection, arguing that the union’s attempt to expand the issues to the other grievance, without the employer’s consent, forced it to have that grievance heard by an arbitrator it had not agreed to. The arbitrator allowed the preliminary objection, finding that the case falls within the principles and policy of Code upholding the fundamental right of a party to influence the choice of both the issues and the arbitrator.