Wednesday, May 15, 2013

BC labour arbitration awards--March, 2013

Thanks to Diane MacLean below are summaries of relevant BC Labour Arbitration awards released during March 2013

Arbitration Summaries – March 2013          
There were three arbitrations reported on CanLII as well as a further five reported on Quicklaw. Brief summaries are provided for two of the CanLII decisions, as one was non-precedential,  and even briefer summaries are provided for the ones reported on Quicklaw.
Accenture Business Services of BritishColumbia v Canadian Office and Professional Employees Union, Local 378, 2013CanLII 12432 (BC LA), March 8, 2013             (Arbitrator  Mark J. Brown): eligibility for statutory holidays when using a time bank to bridge (dismissed)
The employer (formerly BC Hydro) laid off a large number of employees. The parties had negotiated a Memorandum of Understanding (MOU) setting out an adjustment plan to assist employees who would be laid off. At issue was whether an employee using a time bank to bridge to a milestone like early retirement was entitled to paid statutory holidays during the bridging period. The collective agreement  provides that an employee is entitled to straight-time pay on holidays if, on the work days immediately before and after the holiday, the employee was at work, on sick leave, annual vacation, on RWWL, or approved leave of absence not greater than 10 working days.
The employer argued the collective agreement provision regarding statutory holidays does not apply because the grievor was ‘technically laid off’ and not on an approved leave of absence and, even so, the absence was greater than 10 days. The employer also argued that the bridging provisions of the collective agreement allow an employee to continue to accrue service for the purpose of earning additional vacation entitlements, but not for other purposes.
Analysis and Decision
The arbitrator found that the collective agreement provision regarding statutory holiday pay did not apply to the grievor. As well, he commented on the purpose of the time bank under the MOU, that is …how employees could bridge a milestone and what collective agreement provisions would apply while doing so”. The provisions in the MOU stated that employees “will continue to accrue service for the purpose of earning addition vacation entitlements”. The arbitrator stated: “If the parties had intended that employees be eligible for statutory holidays they would have included the reference in the first part of the sentence as they did for accruing service. Therefore, the employees were not entitled to statutory holiday pay during the bridging period.
GreatPacific Industries Inc (Division) v Teamsters Local Union No. 213, 2013 CanLII12416 (BC LA), March 13, 2013       (Arbitrator Mark J. Brown): policy and individual grievances regarding travel time and expenses.
The collective agreement guaranteed 40 hours of work for at least 50% of the employees on the seniority list. Prior to September 2012, the employer had two 40-hour drivers in Nanaimo and two 40-hour drivers in Victoria. The employer lost part of its contract resulting in route reductions and staffing changes. This reorganization result in three 40 hour guarantee routes: one in Nanaimo, one in Victoria, and one split between Vancouver and Victoria.
One of the individual grievors had worked a full-time position in the Nanaimo area. In her new position, she had to work two days in Victoria and two days in Nanaimo. The grievor found the drive to and from Victoria very long and stressful. She stayed overnight with friends in Victoria, and received no paid travel time or expenses. The other individual grievor worked as a relief driver in Victoria, although he also relieved in Nanaimo. Sometimes he had been reimbursed for travel time and expenses, and sometimes not.
The issue is whether drivers who hold posted positions working in both Victoria and Nanaimo are entitled to paid travel time, expenses, meal costs and accommodation costs for travel related to working in both geographic areas. The employer said it was aware that some employees had been paid travel expenses. However, this had been approved by employees who did not have the authority to approve the expense and future payments have been stopped.
Analysis and Decision
The arbitrator considered when an employer would be obliged to compensate employees for “work” and reviewed a number of cases where this issue was considered, for example, where employees were assigned to a work site on a regular basis and then were required by the employer to attend “an alternate location for training, a conference, orientation or some other function”. The arbitrator concluded that this case was different, stating:
The Union acknowledges that the Employer can establish routes and locations.  The Union negotiated a beneficial provision for its members wherein the Employer must create guaranteed forty hour workweeks.  Given the nature of the print media business and loss of the ferry business the Employer created 3 fulltime routes on Vancouver Island.  Unfortunately due to business needs, one route included 2 days in Victoria and 2 days in Nanaimo.  [The grivor’s] seniority resulted in her selecting that route; or risk not having a fulltime position.  In selecting that route, the guaranteed fulltime route involved reporting to the two different depots.  It is not a situation where her posting involves a certain work site, and then the Employer is requiring travel to another location.
… the jobs posted under the terms of the Collective Agreement included work in different geographic areas.  Given that, absent specific language in the Collective Agreement requiring the Employer to pay travel time and expenses, I conclude there is no requirement for the Employer to do so.  When the parties agreed to pay expenses, specific provisions were negotiated into the Collective Agreement...
Absent the forty hour guarantee, the Employer may have created two twenty hour jobs – one in Nanaimo and a second in Victoria.  Such a route structure may have made recruitment easier, but would have been less attractive to [the grievor].  The Union negotiated a forty hour guarantee for its members; but in order for the Employer to comply with that benefit, the Nanaimo/Victoria route was created.

 Quicklaw Decisions – Brief Summaries
BC Public School Employers’ Assn. V. BC Teachers’ Federation, [2013] B.C.C.A.A.A. No. 30, March 5, 2013 (Arbitrator David C. McPhillips): The employer filed a policy grievance alleging that the union and its locals advised its members to refuse (and the members did refuse) to provide to the employer advance copies of communications to parents and refused to make changes to the communications required by the employer. The union applied for an adjournment pending a decision of the BC Court of Appeal from a recent arbitration award issued between the parties. The arbitrator granted the adjournment, noting that the Court of Appeal “may, and hopefully will, provide clear direction to these parties and establish broad parameters dealing with the rights and responsibilities of teachers with regard to freedom of expression and any appropriate limitations. If that proves to be the case, it is difficult to see how it would not be helpful for the parties and this arbitration board to have the benefit of that guidance before arguing and determining this present matter.”
Connaught Inn Ltd. V. Unite Here, Local 40, [2013] B.C.C.A.A.A. No. 29, March 5, 2013 (Arbitrator A. Paul Devine):
The grievors, both long service employees, resigned their employment and both requested severance pay. The collective agreement provided that all employees upon termination shall receive twelve (12) hours pay for each year of continuous service (minimum one (1) year) from January 1, 1981 in the establishment. The union relied on an 1985 award involving the same collective agreement language where a grievor also voluntarily resigned and requested severance pay. The arbitrator in that case gave the word “termination” a broad meaning and stated that it was intended to cover all circumstances in which severance pay might become payable and it did not matter how the severance obligation came about. It applied to all ex-employees who had the necessary preconditions of time and service. The union says that subsequent collective agreements have maintained the same language and so the result should be the same. The employer argued that the decision was out of date, but arbitrator remarked that the employer did not provide any authority to substantiate that claim. The arbitrator decided that the decision was still applicable to the interpretation of the collective agreement and that the circumstances of this case are on “all fours” with the older decision. Therefore the grievors are entitled to receive severance pay upon resigning from employment.
Health Employers Assn. of British Columbia v. Health Sciences Assn. of British Columbia, [2013] B.C.C.A.A.A. No. 35, March 15, 2013 (Arbitrator Judi Korbin): The employer created three new positions and filled two of the positions with the grievors. The collective agreement set out a procedure leading to binding arbitration if the parties could not agree on the wage rate for new classifications. The arbitrator said that the correct approach was:
… to assess the appropriate grid level (salary structure) for the Grievors, through consideration of the incumbents’ computer program duties and responsibilities taken together with internal comparison and equity of positions under the collective agreement.
British Columbia Government and Service Employees’ Union v. Cariboo Regional District, [2013] B.C.C.A.A.A. No. 36, March 28, 201 (Arbitrator James E. Dorsey, Q.C.): The collective agreement provided 15 days of vacation after one year of service then an additional day per year up to a maximum of 26 days. On November 1, 2012, the entitlement increased to twenty-eight days at fifteen years’ service, and thirty days at twenty years’ service. The grievor started his employment in September 1990 and therefore had more than 20 years of service. He  believed he was entitled to 30 days annual vacation in 2012, but the employer only gave him 26 days. The union argued that the grievor was entitled to a pro-rated amount, coming into effect on November 1, 2012 (1/6 of a year). Therefore, the union argued, he was entitled to 1/6 of 4 days’ vacation. The employer argued that only employees who had an anniversary date in November or December were entitled to the. The arbitrator held that the increased entitlement was for all longer service employees and not a subset of employees whose anniversary date happened to be in November or December and was to be prorated as described by the union.
United Steel Workers Local 9705 v. Kootenay Savings Credit Union, [2013] B.C.C.A.A.A. No. 39, March 28, 2013 (Arbitrator Marguerite Jackson, Q.C.): The grievor worked as a Senior Reconciliation Clerk. The union argued that the majority of the job duties of the position had not been transferred to other bargaining unit positions, but were being done by a particular excluded employee in violation of a provision of the collective agreement which prohibited excluded employees from doing bargaining unit work if that work was sufficient to employ a regular bargaining unit employee. The employer says only a small number of the duties had been assumed by excluded employees and were not sufficient to create a bargaining unit position. The arbitrator noted the following:
·         The provision does not prohibit the assignment of all bargaining unit to excluded employees;
·         Regular bargaining unit work includes both full-time and part-time employees, so that if bargaining unit worked assigned to excluded employees would be enough to employ a regular part-time employee, that would be a breach of the collective agreement;
·         The test is whether sufficient work was assigned that otherwise could have employed a regular bargaining unit employee; and
·         The work at issue must be established to be bargaining unit work.
After reviewing the evidence, the arbitrator was satisfied that the vast majority of the excluded employee’s job duties had little to do with the responsibilities of the Senior Reconciliation Clerk and did not constitute bargaining unit work. As well, some of the work that the Union claimed went to other management employees is the type of shared and overlapping work that cannot be considered bargaining unit work.

BC Labour Arbitration Summaries

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, [2013] 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, [2013] 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.,[2013] 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), [2013] 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, [2013] 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.