Saturday, November 26, 2011

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 At the hearing, the employer said that dues were no longer payable and the LOU no longer applicable because the tenures were untraceable and the contractors were logging on all of the tenures, i.e., tenures previously held by West Fraser and those previously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.

Thursday, November 17, 2011

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.

Monday, November 14, 2011

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.


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!