October 2011 BC Arbitration Awards of Note

My colleague Diane MacLean, formerly of the BC Human Rights Tribunal,  brought to my attention a number of arbitration awards issued by British Columbia arbitrators during the month of October.   I have provided the CanLii link where it is available.

Summit Logistics v. Retail Wholesale Union Local 580,  a decision of Arbitrator Mark J. Brown in which he dismissed a union grievance that employees were entitled to both severance and post-retirement benefits when a plant closed.  The case contains a discussion of how extrinsic evidence such as bargaining history and past practice can be used in contract interpretation cases.  Brown found that while the employees and the union may have believed that they had achieved dual entitlement when they negotiated a stand alone agreement related to the plant closure,  such belief was not supported by the express language of the agreement and the extrinsic evidence did not support the existence of mutual intent of the parties.  The lesson from this, of course, is to make sure that the language of an agreement is clear and that both parties have the same understanding of what that  language means.   

Kenny Sekhon Contracting LTd, v. Teamsters Local Union 213 (this decision is not yet available on CanLii, but may obtained through Quicklaw), a decision of Arbitrator Marguerite Jackson, Q.C. issued on October  7, 2011 and dealing with a preliminiry issue of jursidiction under s.104 of the Labour Relations Code.  Section 104 of the Code allows either party to refer a matter to expedited aribtration whereby an arbitration must commence within 28 days of referral.  However the referral cannot occur until after all of the steps of the grievance procedure (short of aribtration) have been exhausted.   This was an employer grievance that the employer had referred to expedited arbitration and the union made a preliminary objection that the arbitrator was without jurisdiction because because the grievance procedure had not been exhausted.  The arbitrator agreed (after 3 days of hearing!). This is a good case to understand the strict requirements of s.104.

Communication Energy and Paperworkers' Union, Local 1123 v. Catalyst Paper (Elk Falls Division), a decision of Arbitrator James Dorsey Q.C. issued on October 11, 2011 in which he dismissed a union grievance seeking severance on behalf of five employees who were on WCB when the paper mill closed.  The collective agreement provided that severance would be paid when an employee lost her job due to a decision to permanently close the paper mill.  The arbitrator concluded that the employement of employees on WCB was not terminated even though the mill closed.  They continued to be employees.  However, whether or not their employment terminated when they were no longer receiving workers compensation benefits and were then entitled to severance allowance was outside of the scope of that particular grievance.

Telus Communication v. TWU , a decision of Arbitrator John Kinzie issued on October 20, 2011 contains an interesting discussion of damages for negligent misrepresentation and when these will be available.  

Prince George Citizen v. CEP Local 2000, a decision of Arbitrator Brown issued October 18, 2011 in which he dismissed a termination grievance.   The grievor was terminated for making threats of violence against other employees to the shop steward, being absent from the workplace without authorization, gross insubordination and not checking e-mails.  The union denied that threats were made and while conceding that the grievor's conduct was disrepsectful, they argued that termination was excessive.  After applying the tests set out in Wm. Scott [1077] 1 Can. L.R.B.R. 1, the arbitrator upheld the termination for three reasons:  he had anger management issues and did not accept assistance offered by the employer, he was not a credible witness and any remorse shown at the hearing was self-serving.

Summaries of British Columbia Arbitration Awards issued in October

The following summaries are provided by Diane MacLean.  For ease of reference I have added the links to CanLii and suggested why you might want to read them:

The first, Summit Logistics Inc v. Retail Wholesale Union, Local 580, a decision by Arbitrator Mark is a good example of why it is so very important for both parties to a collective agreement to be very clear about what they have agreed to


Date: October 3, 2011

Arbitrator: Mark J. Brown
Grievance: Severance/Retirement Policy (grievance dismissed)

Summary

This arbitration was about whether an employee can receive both severance and post-retirement benefits upon a plant closure.

The employer provided distribution services for Canada Safeway. In August 2010, Canada Safeway awarded its distribution services contract to competitor of the employer and the employer announced that it would be closing effective February 28, 2011. The employer then provided notice of termination to the bargaining unit employees by one of three letters reflecting three possible termination dates. The union and the employer then took part in discussions as provided for under s. 54 of the Labour Relations Code. The union filed three grievances claiming: a) special severance; b) for employees taking early retirement, both severance pay and post-retirement benefits (“Sev/Rev” grievance); and c) vested retirement benefits. The s. 54 discussions resulted in two agreements, one of which was referred to as the “Stand-Alone Agreement” (SAA).

The “Sev/Rev” grievance was initially heard in December 2010 and resulted in an award finding the following: a) that the collective agreement did not confer an entitlement to both severance and post-retirement benefits upon a closure and b) that the SAA itself conferred an entitlement to both severance and post-retirement benefits for employees taking early retirement in the context of a closure.

The employer applied to the B.C. Labour Relations Board for a review of this decision under S. 99 and it found that the arbitrator had denied the employer a fair hearing. The grievance was remitted back to the arbitrator to determine whether he had the jurisdiction to determine whether the SAA conferred the benefits in issue and, if so, the proper interpretation of the agreement following a hearing and argument. The employer also applied for a reconsideration of the S. 99 decision which upheld the S. 99 decision. The arbitrator considered these issues and found that the interpretation of the SAA was not within the scope of the Sev/Rev grievance so he could not make a finding on whether that agreement created an entitlement to both severance and post retirement benefits. Then, the union filed this present grievance under the SAA alleging that the employer’s failure to pay both severance pay and post-retirement benefits was a breach of the “Stand-Alone Agreement”.

In addition to the documents that constituted the collective agreement, two representatives of the parties, who had been present when the SAA was negotiated, testified at the arbitration. The union representative testified that the dual entitlement issue had been raised early in the discussions. He also testified that after the SAA had been signed, he phoned the employer representative stating that he would be telling people that the SAA conferred retiree benefits (not sure if the arbitrator actually meant severance pay) to all employees and if the employer’s representative did not agree, he should call him back. He testified that the employer representative never called him back. The union representative “agreed in cross-examination that he never said to the Employer in discussions that the language gave them dual benefits. He stated he advised his committee but then said to the Employer it was very good language on the bridge” (this referred to using unused sick leave as a retirement bridge).

The employer’s representative testified that dual benefits were not discussed in the context of the section of the SAA granting the bridge. He also said that the union representative left a message, but it was simply a message to call him. He asked another employee representative to call him back.

The arbitrator stated that the onus is on the union to establish that the parties agreed to a dual entitlement. This would be established either by the language of the collective agreement itself or in conjunction with extrinsic evidence such as past practice or bargaining history.

In regard to the SAA, the arbitrator said:

The Union has not pointed me to any specific language in the Stand Alone Agreement that it says expressly provides for a dual benefit [entitlement?] to severance and retirement benefits.

I conclude that the August 16th letters to employees do not contain a representation that employees will receive both severance and retirement benefits. The letter notes the employee “must continue to work up to the end of your last scheduled shift in order to qualify for severance”. It goes [on?] to note that “Employees who resign, retire or are discharged for cause prior to their final scheduled shift will not receive severance.

While an employee may have read the letter and assumed that if they retired on their final shift, as opposed to prior to their final shift, they would be entitled to severance, the parties did not agree with that conclusion based on the conduct. It is clear based on discussions during the Stand Alone Agreement discussions that the parties were at odds on this matter.

The arbitrator then considered the extrinsic evidence provided by the parties. The arbitrator referred to the discussion of extrinsic evidence in Coquitlam School District 43 v. Coquitlam Teachers’ Assn., [1993]B.C.C.A.A.A. No. 360, in particular that:

…it is the language selected by the parties that dominates in any disputed interpretation and that any departure from the apparent meaning of the language requires “very persuasive and unequivocal parole evidence”…

…

It is only where extrinsic evidence discloses mutuality between the parties with respect to a particular meaning inconsistent with the written language that “a bona fide doubt” will arise about what the parties meant in their selection of language which appears clear on its face…

While the arbitrator agreed that severance payments and retiree benefits can be combined by agreement and that the parties had expressly agreed to do so in the past, he did not view it as a “past practice” as the term is used in arbitral jurisprudence, just that the concept was not new to these parties.

The arbitrator concluded that the intrinsic evidence was not helpful and that while the employees and union may have believed that they had achieved the dual entitlement, without express language, the grievance must be dismissed.

Successor employer must pay outstanding union dues

In the West Fraser Mills Ltd. (Cariboo Division) v. United Steelworkers, Local 1-424 (Dues Payments Grievance), [2011] B.C.C.A.A.A. No. 108 (No. A-069/11) issued September 5, 2011 arbitrator Robert Pekeles allowed the union's grievance that the employer had failed to remit dues.  The following summary is provided by Diane MacLean.


The employer amalgamated with Weldwood in 2005 and became the successor employer. The union and the employer had a Letter of Understanding (“LOU”) confirming an agreement that had been in place since 1955. The LOU provided, in part, that “in regard to logging contractors employed by the Company in the Quesnel area”:

We shall hold our uncertified logging contractors responsible to abide by the relevant portions of the present Agreement, in particular as it regards wage scale, holiday pay and seniority clauses. Dues for all employees and a list of employees for whom dues are submitted must be submitted to the Local Union once a month, without application for Union membership.

Dues deductions went smoothly until 2006, when the logging contractors started logging not only on the old Weldwood forest tenures, but also on some West Fraser tenures. At some point, dues from some of the logging contractors were no longer being remitted to the union, without any explanation. At the hearing, the employer said that dues were no longer payable and the LOU no longer applicable because the tenures were untraceable and the contractors were logging on all of the tenures, i.e., tenures previously held by West Fraser and those previously held by Weldwood.

The arbitrator stated that “the primary resource for determining the mutual intention of the parties is the language of the Collective Agreement itself.” Given the age of the agreement (since 1955), there was no evidence of negotiation history, but there was evidence as to practice. The arbitrator said he had no doubt about the proper meaning of the collective agreement language in question:

I agree that under the terms of the Collective Agreement, the “Company” was Weldwood (Cariboo Division). In 2005, Weldwood and West Fraser merged. The Employer became the successor employer. As such, the Employer became bound by the Collective Agreement. The Letter of Understanding is part of the Collective Agreement. Thus, just as Weldwood (Cariboo Division) was bound by the Letter of Understanding “in regard to logging contractors employed by the Company in the Quesnel area”, so the Employer became so bound. Just as Weldwood (Cariboo Division) was bound to “hold our uncertified logging contractors responsible to abide by the relevant portions of the present Agreement”, so the Employer became so bound.

The arbitrator did not accept the employer’s argument that the agreement did not apply to contractors who no longer logged exclusively on tenures held by Weldwood. The important issue was whether the logging contractors were employed in the “Quesnel area”. The arbitrator order the payment of the dues with interest.

LRB overturns decision of a Claims Review Committee

Vice Chair Elena Miller's decision in Matson v. Interior Health Authority issued on November 15, 2011 will be of interest to those unions where long term disability claims are adjudicated by a claims review committee.  This regime is to be found in the health care collective agreements, the provincial public service and other, primarily, public sector collective agreements where the plan is self-funded but its administration is contracted to one of the usual insurance companies.  It is well established that these committees, made up of three doctors whose jurisdiction is limited to reviewing medical decisions, fall within the broad definition of an arbitration board and their decisions are reviewable pursuant to s.99 of the Labour Relations Code.

The Vice Chair set aside the decision and remitted the matter back to the committee because the CRC's decision did not provide reasons which allowed the basis of the decision to be understood.  The LRB stated that while the decision recounted a lot of evidence, there was no link or "meaningful references or connections ...made between that evidence and the conclusion that Matson is not totally disabled from any occupation."

It is a useful decision to consider when assessing whether to pursue a s.99 review of a CRC decision, particularly where there vague allegations that a claimant may be feigning the disability.

Denial of sick leave benefits leads to damages for mental distress

In Fortis v. IBEWarbitrator Mark Thompson awarded damages of $5000 for mental distress based on the principles set out in 2006 by the Supreme Court of Canada in Fidler v. Sun Life Assurance Co. of Canada.  In that case the SCC upheld an award of $20,000 for damages for mental distress suffered by Ms. Fidler as a result of Sun Life's unwarranted delay in paying out long term disability benefits.
The Fortis decision contains a very useful summary of arbitration awards that have applied Fidler .  The arbitrator concludes that damages for loss of sick leave benefits should "be granted when there is medical evidence of a connection between the stress or other psychological conditions (“mental distress”) and the actions of the employer or insurance carrier."

On the facts before him Arbitrator Thompson made the following findings:

Damages in this context are not a punishment to the Employer, but compensation to the employee. 

Based on the evidence presented, I conclude that Mr. Pearson’s inability to obtain sick leave when he and his physicians believed that he should not be working caused Mr. Pearson to suffer mental distress as the term is used in Fidler. Dr. Lowden testified that he knew of Mr. Pearson’s difficulties with Manulife were stressful to his patient, and he thought that that this stress made his pelvic pain worse. Dr. Jewett was asked if Mr. Pearson’s lack of financial support because of his problems in obtaining sick leave had an impact on his health and ability to work. Dr. Jewett responded that he is not a psychiatrist, but he thought someone in Mr. Pearson’s job should be at his psychological best. Dr. Schieman wrote a letter to Dr. Lowden in October 2009 stating that the disagreement between Mr. Pearson and Manulife was causing him stress. Consequently, Dr. Schieman was to write another letter to Manulife concerning Mr. Pearson’s medical condition.

I believe the evidence of the three physicians involved in Mr. Pearson’s illnesses constitute the “medical evidence” as contemplated by the Court in Fidler, and the second condition in para. 47 of that case. It is consistent with the conclusions of other adjudicators who have been asked to answer similar questions. This evidence demonstrates that Mr. Pearson suffered mental distress because of a violation of the sick leave provisions of the collective agreement. Therefore, I conclude that damages are warranted. As I have noted above, I do not conclude that either Manulife or the Employer acted unreasonably or egregiously. Under these circumstances, I conclude that an award of $5000 in damages is appropriate

(with thanks to Diane MacLean for her contribution)Fortis v. IBEW

Arbitration award balances employees' privacy interests and employer's legitimate business objective

Below is a summary of the arbitration award issued by arbitrator Heather Laing on August 12, 2011 in the case of Spectra Energy v. Canadian Pipeline Employees' Association prepared by Diane MacLean.

Summary


The employer introduced a policy which required employees who drive company owned, leased, or rented vehicles an average of one or more times per week, to give consent to the employer to access their B.C. Motor Vehicle Records.

The union argued that the policy was not reasonable and violates the employees’ privacy rights. The union said the appropriate analysis is twofold: Is the policy reasonable and what is the balance between the employer’s need for information and the employees’ right to privacy? If the balance favours privacy, then the policy is not reasonable and cannot be implemented. The union argued that the policy was not reasonable for the following reasons: no evidence of any increase in safety incidents or that the application of the policy would result in a safer workplace; no evidence that the company’s existing safety programs, combined with programs of third parties, are insufficient or inadequate to address the employer’s safety concerns. As well, the union argued that there was no evidence that off duty driving conduct is a good predictor of behaviour at work and that there are less intrusive ways to accomplish the employer’s goals.

The employer argued that the policy was issued in aid of a company core goal of safety. The policy is justified because it is a reasonable safety initiative and improving performance is a reasonable way to minimize risk (high risk drivers would be required to take further training).

The arbitrator identified the issue as “how to properly balance the privacy rights of employees in relation to the legitimate business interests of the employer.” A review of the arbitral jurisprudence reveals some basic principles had been developed:

• Each case is dependent on its own facts and is to be decided on the basis of the particular circumstances involved;

• The nature and significance of the particular privacy rights and the employer’s business interests in issue must be clearly identified and carefully weighed;

• Privacy rights arising from the application of statute and regulation are given greater weight than rights created in a particular workplace under the terms of a given collective agreement; and

• An arbitrator’s inquiry into the merits of an alleged intrusion into a privacy right established by statute or regulation should take into account the public interest that may be involved.

Both parties referred to Arbitrator Smith’s findings in Re Finning International Inc. and International Association of Machinists and Aerospace Workers, Local 99 (2004), 135 L.A.C. (4th) 335. The arbitrator noted that it provided “a carefully reasoned analysis and approach based on a thorough review of the arbitral principles to be applied” and was directly applicable to the facts and circumstances of this case. In regard to who bears the burden to prove the rule was reasonable, the arbitrator in Finning stated:

… if the Union establishes that the rule infringes a legitimate right of privacy, the Employer must demonstrate that it is reasonable in the sense of being rationally connected to and advancing a legitimate business purpose which outweigh the employee’s right to privacy.

The arbitrator in this case noted that the employer:

… produced insufficient evidence and no demonstrable reasons that provide a factual basis for the intrusion into the privacy rights of the employees. The employer has the burden of establishing the reasonableness of the rule “… having regard to the availability of less intrusive alternatives.””

In particular, the arbitrator found there was no evidence that safety was a growing or newly urgent problem for the employer. As well, in British Columbia, the requested records are personal and are protected by statutory privacy rights. Finally, although the employer was to be commended for being safety conscious, there were alternative ways of achieving this goal without intruding on the privacy rights of employees. The arbitrator concluded:

I find the policy is over reaching and goes over broad; it requires employees to produce information that as a matter of law is personal to them. No reasonable basis for such interference with the employees’ rights has been established. The net effect is that the policy, which requires an employee to sign a consent form, is at variance with the public policy in this province designed to protect such personal information. Arbitrators should not interfere with such important rights, absent compelling circumstances. No such situation exists here.

(Note: some of the union’s privacy concerns are interesting. The policy was going to be assigned to another company which was a subsidiary of an American company. This company would receive the records, assess who was a high-risk driver and then contact the employer to provide a Driver Improvement Plan. The union’s witnesses where concerned about where the information was being sent, who would have access to it and for what reason would the information be used. In particular, they expressed concern about:

• The number of the employer’s employees who would have access to the information;

• The contracting company’s computerized system and if it could result in identity theft;

• Since the contracting company was a subsidiary of an American company, would it be required to provide employee’s personal information to Homeland Security?

• Once they signed the consent form, it appeared that it would not be sought again annually, and that the original consent could be used to access records at any time thereafter;

• Why was the employer asking for information about off-duty driving when it already had information about on-the-job driving?

• Why were other safety initiatives, that did not involve a violation of privacy rights ,not being implemented?

• That information provided by the employer said that a Driver Improvement Plan could include revoking or limiting driving privileges which could affect an employee’s job.)

Update on arbitrations thanks to Diane MacLean

With this posting I'd like to introduce Diane MacLean who has very kindly offered to help keep this blog up to date by reviewing  BC arbitration awards and  Labour Relations Board  s.99 reviews.

Diane Maclean  attended S.F.U. and earned a B.A. and M.A. in economics. Her major interests were labour relations and the economics of poverty and discrimination. Diane taught economics at the college and university level before attending law school at U.B.C.

Prior to working for the provincial government, Diane worked as an economic researcher and writer. For example, she researched and prepared briefs for a group of arbitrators regarding proposed changes to the Labour Relations Code and for a group of trade union women regarding proposed changes to the Employment Standards Act. She also did legal research for law firms specializing in labour law.

Diane then spent many years as an Employment Standards Officer and Industrial Relations Officer for the B.C. Ministry of Labour, investigating and mediating complaints under the Employment Standards Act and the Human Right Code, conducting certification and decertification votes under the Labour Relations Code, and conducting grievance mediations for the B.C. Collective Agreement Arbitration Bureau. More recently, she was a Member of the B.C. Human Rights Tribunal for five and one-half years. At present, Diane is self-employed, working as a mediator and doing legal research and writing in the areas of labour, employment and human rights.

Welcome Diane!

Canada Human Rights Tribunal has no authority to award legal costs, SCC rules

On October 28, 2011 the Supreme Court of Canada issued a decision in Canadian Human Rights Commission and Donna Mowat v. Canada (AG) in which it ruled that the Canada Human Rights Tribunal has no jurisdiction to award compensation for legal costs incurred by human rights complainants.  The Court found that s. 53(2) of the Canada Human Rights Act, the provision that contains the authority compensate for "any expenses incurred by the victim as a result of the discriminatory practice” does not include compensation for legal costs incurred to prosecute a complaint.

The BC Human Rights Act contains a similar provision at s. 37(2)(d) and the BC Human Rights Tribunal has also awarded legal costs to complainants in particularly egregious cases.  See for example http://www.bchrt.bc.ca/decisions/2008/pdf/oct/376_Senyk_v_WFG_Agency_Network_(No_2)_2008_BCHRT_376.pdf.  Undoubtedly the Supreme Court of Canada ruling in this case will have a significant impact in our province as well.

Employer who exposed workers to asbestos found guilty of contempt

 
"Arthur Moore exposes his workers to asbestos, a deadly substance, without protection and upon forged hazardous-material reports that conceal the danger. He exploits young recovering addicts as his workforce."  So begins WCB v Moore a unanimous judgment issued to-day by the  BC Court of Appeal.  After several unsuccessful attempts to have Moore stop this practice, the Workers' Compensation Board obtained a court injuction.   But Moore continued and WCB made an application to the BC Supreme Court citing Moore "doing business as AM Environmental" for contempt of the injunction. 
The BC Supreme Court judge refused to make the contempt order on the basis that the  reference to "doing business as AM Environmental" created an ambiguity or confusion.  WCB appealed to the Court of Appeal.

Writing on behalf f the court, Mr. Justice Donald reviewed the law relating to contempt:
             16] A concise and most helpful summary of the principles applicable to the interpretation of an order in contempt proceedings is found in R. (Mark Dean Harris) v. The Official Solicitor to the Supreme Court, [2001] EWHC Admin 798 (Q.B.D.), wherein Mr. Justice Munby stated (at para. 68):

(i) No order will be enforced by committal unless it is expressed in clear, certain and unambiguous language. So far as this is possible, the person affected should know with complete precision what it is that he is required to do or to abstain from doing.
(ii) It is impossible to read implied terms into an injunction.
(iii) An order should not require the person to whom it is addressed to cross-refer to other material in order to ascertain his precise obligation. Looking only at the order the party enjoined must be able to find out from the four walls of it exactly what it is that he must not do.
(iv) It follows from this that, as Jenkins J said in Redwing Ltd v. Redwing Forest Products Ltd (1947), 177 LT 387 at p. 390,
a Defendant cannot be committed for contempt on the ground that upon one of two possible constructions of an undertaking being given he has broken that undertaking. For the purpose of relief of this character I think the undertaking must be clear and the breach must be clear beyond all question.

He then went on to find that in the case before him, the terms of the injuction, i.e. the conduct that was proscribed,  were very clear.  As to the name, he concluded that "doing business as AM Environmental" was surplus as AM Environmental was not a legal entity separate from Moore.  The judge also pointed out that Moore did not plead confusion, nor did he appear at the injuction hearing or at the appeal.  It was also clear on the record that Moore was at all times aware that WCB had issued an injuction.
The judge found:
I would, in conclusion, find Mr. Moore guilty of contempt. His misconduct grievously endangered workers under his direction. Unless he can in some way mitigate his indifference to the lives and safety of his workers and his open defiance of the injunction, his misconduct requires a severe response.
A warrant was issued for Moore's arrest and the matter was referred back to the lower court to assess a penalty.

Variation of a certification--common and not-so common objections

In the recent decision Canadian Corps of Commissionaire v. PSAC  , Vice Chair Bruce Wilkins dismissed the employer's objections to PSAC's application to vary its multi-site certification to include alarm response drivers who worked out of the Commissionaires' headquarters in Victoria and ordere that the votes be counted.
The employer had three objections to the application to vary.  The first was an uncommon objection.  The employer argued that there was a clause in the collective agreement that provided these employees would be excluded and could not be organized.  Although the Board ruled that the provision did not mean what the employer suggested, Vice Chair Wilkins went on to comment that  the right of employees to access collective bargaining takes precedence over collective agreement provisions.   
The second objection was that the unit sought to be varied into the existing certification was not appropriate as it did not include other employees in the response centre.  In dismissing this objection the Vice Chair applied the test in Island Medical Labs B308/93.  This decision is a nice and clear application of  what is often a counfounding and elusive test.
The final objection had to do with the number of employees who cast their vote in the variation.  The employer argued that because less than 50% of employees had turned out to vote, the results would not represent the will of a majority of the employees and a new vote should be ordered.  Vice Chair Wilkins reviewed the applicable law that indicates that a low voter turnout is not enough.  There must be other factors present, such as lack of adequate notice, in order to satisfy the test for the ordering of a new vote.
The Board ordered that the ballot box be unsealed and the vote be counted. (Note:  when there is an objection to a certification or variation of a certification this is usually heard after the vote has been held)

LRB orders employer to provide information to the union

In  Port Transport Inc and CAW, a decision issued by the LRB on March 23, 2011 Vice Chair Topalian declared that Port Transport Inc had committed an unfair labour practice by refusing to provide the union with the following information:
a)  a current contact list containing the names, addresses, telephone numbers and e-mail addresses of all members of the bargaining unit,
b) specific information on each bargaining unit member including name, date of birth, benefit coverage (single,family, enrolled, not eligible, etc.), wage rate(s), premium(s),job classification(s) and any other form of remuneration including but not limited to vacation entitlement, and any profit-sharing, incentive or bonus plans in effect, and
c)actual data on usage and cost on all areas of any benefit plan for the past three (3) years.

The employer argued that it was not obliged to provide this information without the written consent of each affected employee.   The union argued that it required the information in order to engage in rational discussions at collective bargaining and to properly cost out its proposal in relation to wage rates, premiums and benefits.  It also said that it required the information to be able to communicate with the members of the bargaining unit and discharge its obligations under the Labour Code.  The employer had not provided any sound business concerns for not disclosing the information requested. 

Vice Chair Topalian reviewed the Board's jurisprudence in P.Sun's Enterprises B301/2003 and in The Governor and Company of Adventurers of England Trading into Hudson's Bay, (my favourite case name of all time!) B226/2004, and ordered the employer to provide the information. 

This is a very good decision that unions should take note of and apply as they prepare for collective bargaining.

BC Court of Appeal--standard of review of Human Rights Tribunal Decisions

In Lavender Co-Op Housing the BC Court of Appeal today upheld a lower court's decision that overturned the BC Human Right's tribunal finding of prima facie discrimination on the basis of marital status against the membership rules of a cooperative housing society.. For those interested in the "standard of review" this is a good case on the applicable standard to questions of "mixed law and facts" (and yes, it is correctness).  For the rest of us, the case confirms that prima facie discrimination is established  not by a comparative analysis, but by determining whether the conduct complained of is prohibited under the Human Rights Code by definition. 

First collective agreement--retroactive imposition is okay

In Osprey Care v. HEU issued on March 1, 2011, Vice Chair Ritu Mahil of the BC LRB dismissed Osprey’s application for review of an arbitrator’s decision in which, in the course of imposing a first collective agreement under s.55 of the Code, Arbitrator Vince Ready made the collective agreement retroactive to February 24, 2010 and set out an expedited process by which certain outstanding grievances would be resolved. The employer argued the arbitrator exceeded his jurisdiction.

Prior to the appointment of Vince Ready as binding mediator/arbitrator, a mediator had been appointed under s.74 of the Code and issued non-binding recommendations for a first collective agreement. The union accepted those recommendations on February 24, 2010. The employer rejected the recommendations and Mr. Ready was appointed in March 2010 to mediate/arbitrate the collective bargaining dispute. Mediation failed.

At the arbitration the employer stated it had changed its position; it now accepted the first mediator's recommendations and therefore there was nothing more to arbitrate. HEU did not agree asserting that the arbitrator had authority to deal with the effective date of the collective agreement and with the employment disputes that had arisen between the parties. The Board upheld Mr. Ready’s award,  finding that the Board’s previous decision in Royal City Manor B27/95 established that s.55 arbitrators could impose first contracts retroactively. Further Vice Chair Mahil ruled that a purposive interpretation of s.55 allowed the arbitrator to not only impose a first collective agreement, but to address “seething issues” between the parties in order to aid the “goal of establishing enduring bargaining relationships”. The order that outstanding disputes be resolved by a process of expedited arbitrations was upheld.

One should note that Vince Ready was one of the three members of the Commission appointed by the NDP government in 1991 that recommended revisions to the Labour Code, including the current first collective agreement provisions found in s. 55 of the Code.

Osprey Care is a for profit care facility in Kamloops.

LRB upholds decision to terminate LTD benefits

In Dewell v. BC Public Service Agency  Vice Chair Adam dismissed a grievor’s application for review of the decision of a claims review committee that upheld cutting off her long term disability benefit. Under a number of BC public sector collective agreements (public service and health for example) medical disputes about long term disability are adjudicated by a panel of doctors. The LRB has ruled that such decisions fall within the definition of an arbitration which is reviewable under s.99 of the Code and the usual tests for review apply. In this case the grievor alleged that she had been denied a fair hearing.
An interesting feature of this case is that the union did not participate in the application. While a union has exclusive conduct of a grievance through all of its steps, including arbitration, the Code allows grievors who are unhappy with the results of an arbitration award to bring an application to the LRB independently of the union.

The case also contains a good summary of when an arbitration award may be challenged on the basis of new evidence.  Adam quoted from a previous court decision as follows:

In addition to the requirement that the proposed new evidence go to the heart of the issues to be determined by the arbitration board and that the new evidence could not have been obtained by the exercise of due diligence, the Board may, in its discretion, wish to consider other factors, including:


(a)The public interest.


(b)The nature of the grievance


(c) Motive of the applicant ...


(d)After discovery of the new evidence was the application to adduce that evidence made promptly?


(e)Does the proposed new evidence relate only to a minor or trivial issue?


(f)Have third parties already acted on the basis of the award?


(g)Was the new evidence obtained long after the handing down of the award?


I do not suggest that this list is exhaustive, or that the application of any of these factors should result in the exclusion of the new evidence in this case.

Sexual Harassment--Human Rights Tribunal awards $30,000 damages for unwanted sexual text messages

In McIntosh v Metro Aluminum Products and another issued by the BC Human Rights Tribunal to-day,  Tribunal member Enid Marion awarded a total of $30,000 in lost wages and damages to a woman who complained that her boss' unwanted sexual text messages caused her to quit her job. 

The complainant had a sexual relationship with Zbigniew Augustynowicz, the owner of the company where she was employed.  When she ended the affair he repeatedly sent her text messages that were sexual in nature and aggressive in tone.  These caused to leave her employment and McIntosh filed a complaint with the Human Rights Tribunal.  The tribunal found that there had been sexual harassment:

[133] As the owner of Metro, and Ms. McIntosh’s employer, Mr. Augustynowicz was in a position of authority over her. He was responsible for the terms and conditions of her employment and for ensuring that she was employed in a workplace free of sexual harassment. He failed in this responsibility. He repeatedly referred to Ms. McIntosh in a sexually demeaning manner in his communications to her. He knew, or ought to have known, that his sexual comments and propositions were offensive, inappropriate, and unlawful in an employment context.

[134] As consenting adults, Mr. Augustynowicz and Ms. McIntosh were entitled to enter into a sexual relationship, however ill-advised it might be in a workplace given their respective positions. However, once that relationship ended, and she communicated to him that she no longer wanted to engage in communications or conduct of a sexual nature, Mr. Augustynowicz had a legal responsibility to ensure that he ceased such communications and that the breakdown of their sexual relationship did not negatively impact Ms. McIntosh’s working environment.


[135] After considering all the circumstances, including the overall context, tenor and content of the text messages, I find that Ms. McIntosh has proven that she was subjected to repeated comments of a sexual nature that Mr. Augustynowicz knew, or ought to have known, were unwelcome, and that detrimentally affected her work environment and led to adverse job-related consequences, including her departure from Metro. 

The Human Rights Tribunal, however remains a place where damages for human rights breaches are still relatively low.  For example, in this case more than half of the damages awarded were for related to lost wages and only $12,000 were for damages for injury to dignity.