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 Brief summaries are provided for two of the CanLII decisions, as one was non-precedential,  and even briefer summaries are provided for the ones reported on Quicklaw.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.

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