Following the conclusion of the strike of MoveUP (formerly “COPE, Local 378”)’s bargaining unit of administrative professionals employed at the BC Nurses Union (“BCNU”), Black Gropper successfully obtained a declaration from the B.C. Labour Relations Board (“the Board”) that an unfair labour practice complaint (“the Complaint”) brought by the BCNU was moot and ought not to be heard by the Board.
The Complaint in issue challenged the lawfulness of some picketing in which the struck MoveUP bargaining unit engaged during the strike. The BCNU took the position that the Complaint ought to be decided despite the conclusion of the strike because the tension between the parties remained high due to misinformation that appeared on MoveUP’s social media during the strike. The BCNU asserted that a determination of the Complaint was necessary to enable the parties to move forward after the strike. The Employer further asserted that the circumstances of the Complaint warranted deciding after the strike because MoveUP failed to use their social media platforms to advise the struck members about when and where strike activity is permissible.
Black Gropper strenuously argued, on behalf of MoveUP, that the Complaint was moot. We further argued that none of the BCNU’s asserted reasons for hearing the Complaint after the strike’s conclusion were acceptable bases for proceeding. Over the course of our arguments, Black Gropper also raised serious objections to each of the BCNU’s unparticularized and unsubstantiated allegations that the Union (1) circulated any miscommunications to its membership on social media (or elsewhere), (2) had any reason or obligation to advise its membership regarding the scope of permissible picketing merely because the Employer had brought a complaint, (3) or that there was significant tension between the parties after the strike that would be resolved by a decision of the BCNU’s Complaint. Finally, we reminded the Board that the Employer had specifically written to the struck employees describing its view of the scope of lawful picketing, in letters that had formed the basis for the Union’s own unfair labour practice complaint.
The Board accepted Black Gropper’s arguments, on behalf of MoveUP, that any tension that existed after the strike was insufficient to justify a determination of the Complaint. The Board further agreed with Black Gropper’s argument that the Employer had not established that its rights would be affected in any way if the application was not heard, being a key consideration in the Board’s jurisprudence regarding moot applications. Finally, the Board concluded that the facts alleged by the BCNU did not fall within any of the categories of special circumstances in which the Board may exercise discretion to hear a moot application. As the result of these findings, the Board dismissed the BCNU’s Complaint.
On April 6, 2016, Arbitrator John B. Hall issued his decision on a grievance arising out of the deployment of Vancouver Firefighters on the Heavy Urban Search and Rescue Team (HUSAR) to respond to the Calgary Floods in 2012. A total of 30 Union members were deployed in two "waves" in order to assist with the aftermath of the flooding. Some of the members had been on duty at the time of their deployment and others had been off-duty, including some who were on vacation. While in Calgary, the HUSAR Team members worked every day of the deployment, in alternating day and night shifts, and were paid a minimum of 12 hours per day. While not actively working, Union members were prohibited from leaving the Base of Operations.
The grievance raised four key issues: whether members were owed overtime for all the hours they were ordered to remain at their base of operations, whether the Employer must pay "callout" pay to HUSAR members deployed to Calgary, whether the Employer has the obligation to call HUSAR members into work in order of seniority, and lastly whether the Employer's rescheduling of vacation as a result of the deployment was an unreasonable exercise of managerial discretion.
Regarding the issue of overtime pay, the Employer argued that the members were not "working" on their time off, and therefore not entitled to this pay. Further, the Employer argued that the HUSAR Team members were free to do as they wished on the base, and that the primary reason for their confinement was due to safety concerns. The Union argued that the safety concerns of the Employer were unsubstantiated, and that the Union members were under the control and direction of the Employer during the entire period of confinement. The Union sought wages in accordance with the overtime and extra shift provisions of the Collective Agreement. Arbitrator Hall accepted the Union's argument and found that the Employer must compensate the Union's HUSAR Team members at the applicable overtime rate, for the hours they spent confined to the base while off duty.
With respect to the issue of call out pay, the Union argued that members deployed in response to the Calgary Floods were entitled to "callout" pay under Article 8, based on past practice evidence that a callout was a "request" rather than a "requirement" to attend work, and alternatively, that the past practice raises an estoppel argument. However, Arbitrator Hall considered the divergent understandings of the word "mandatory" expressed by both parties' witnesses, and found that the Union was precluded from relying on the extrinsic evidence. Arbitrator Hall also rejected the Union's argument of estoppel, finding that, on the evidence, it could not be established that the Employer ever made a representation to the effect that callout was voluntary and may be declined at the discretion of a firefighter.
The third issue of whether the Employer was required to call the members of the HUSAR Team for deployment in order of seniority was well canvassed by the parties. The Employer had created a seniority list for the specific purpose of the Calgary deployment, which members were called from. The particular issue of seniority was raised to seek redress for a member who was erroneously passed on the list, missing his opportunity to deploy. Although Arbitrator Hall found that the evidence reflected seniority as a "cornerstone philosophy" of the Union, in applying the general conditions provision argued by the Union, he found that there was no practice of seniority "presently in force" regarding HUSAR deployments.
The final issue related only to HUSAR Team members who were deployed to Calgary while on vacation at the time of the activation. Upon their return home, all of these members resumed their vacation, with the intention of returning to work on their original vacation end date. The Employer, however, unilaterally added vacation days to the members' original vacation with insufficient notice, despite evidence of the fact that the decision was made during the deployment. As a result several members lost the opportunity to use their vacation days had they known about the extra days off, with one member missing out on the chance to accompany his fiancée on her vacation.
The Union took issue with the Employer's lack of notice and consultation, and argued that the Employer's conduct constituted an unreasonable exercise of managerial authority. The Employer argued that it had the authority to unilaterally reschedule vacation and that it was not in breach of the Collective Agreement. Arbitrator Hall took the view that the Employer has the obligation to exercise its management rights in a manner that is neither arbitrary nor unreasonable. Finding that employees do "have a say in the matter" when it comes to vacation rescheduling due to operational requirements, it was determined that the lack of timely notice and failure to consult were unreasonable exercise of the Employer's scheduling rights. Arbitrator Hall remitted the issue of monetary damages back to the parties, making special note of the "lost opportunity" principle to the parties.
In this Supplementary Award to City of Vancouver (Fire and Rescue Services) and Vancouver Firefighters' Union, Local 18, 2016 CanLII 20561, Arbitrator John B. Hall addressed the issue of the appropriate award of damages against the Employer for its breach of employees' rights to be consulted respecting changes to their previously scheduled vacations.
The Union sought an award of damages for each employee equal to 100 percent of his or her wages for each day of vacation that the Employer had unilaterally rescheduled. The Employer submitted that the appropriate damages award for each employee was an amount ranging from $144. 28 to $530.64 before statutory deductions and union dues. Those amounts were approximately 25 percent of the value of the employees' wages for the rescheduled vacation days.
Arbitrator Hall held that in quantifying the appropriate amount of damages, the following principles applied:
First, it must be determined whether there was a breach which results in a loss of opportunity to consult;
If so, it must be determined whether there was a reasonable probability that the complainant could have obtained a benefit absent the breach;
a. If the second inquiry is answered in the affirmative, damages will be awarded for the value of the loss, although the quantification of damages is readily little more than a guess having regard to the value of the benefit and the likelihood that it would have been obtained; b. If the second inquiry is answered in the negative, only a nominal amount of damages will be awarded;
Finally, the damages award should be sufficient to give the employer a meaningful incentive to comply in the future.
The Arbitrator found that all employees on the Heavy Urban Search and Rescue Team who had their vacation entitlement unilaterally rescheduled by the Employer suffered a loss of opportunity to plan their vacations, when the Employer gave only one day's notice of the changes.
Arbitrator Hall also held that there was a reasonable probability that the Employer would have allowed the employees to take their vacations on another date, but for the Employer's breach of their right to consult. The Employer had failed to follow its usual practice of consulting with employees about changes to their vacation schedules.
The Arbitrator rejected the Union's argument for a damages award of 100% of the wages associated with the rescheduled vacation days, as that would be inconsistent with arbitral law holding that granting additional vacation time or pay results in double compensation. The Arbitrator also held that the Employer's quantification of damages approached the "nominal" category, and erroneously tied the payment to wages. Damages for loss of opportunity to consult in the present case were not income, and were not to be subject to statutory or other deductions.
Considering all of the relevant circumstances, Arbitrator Hall awarded the following:
$250 to each of the two employees who had one vacation day rescheduled;
$500 to each of the two employees who had two or three days rescheduled; and
$750 to each of the two employees who had four days rescheduled.
He was satisfied that the total damages amount represented a sufficient incentive for the Employer to consult in the future.
PBC Health Benefits Society and DA Townley & Associates Ltd. and CUPE, Local 1816 and COPE, Local 378, BCLRB B129/2016
Black Gropper successfully represented COPE Local 378 (now “MoveUP”) in an application before the Labour Relations Board, where PBC (the “Employer”) made an application pursuant to section 35 of the Labour Relations Code, seeking a declaration that it was the successor employer to DA Townley, and seeking an order consolidating its bargaining unit, represented by CUPE, with DA Townley’s bargaining unit, represented by MoveUP. The Employer argued that the two bargaining units should be consolidated because of its clear intention to integrate the two operations. We opposed the Employer’s application on two grounds. First, MoveUP argued that that the Employer was acting in bad faith by breaching its express commitment to the Union to that it was going to maintain a distinct and separate operation and then subsequently bringing this application. Second, the Union argued that the Employer was now seeking an anticipatory declaration without the necessary crystallization of facts and sufficient labour relations purpose, and consequently does not meet the Board’s test for granting such declarations.
The Board found the Employer’s application for successorship to be moot, as MoveUP had already applied for and was granted a declaration that PBC was the successor employer to DA Townley in early 2015. Based on the evidence, the Board concluded that a rational and defensible line can continue to be drawn around the pre-existing DA Townley unit and found that the Employer’s application for a consolidated unit was anticipatory. While the duties carried out by the two groups of employees were similar and a detailed plan for the integration with set dates was put in place, the Board found that the evidence presented by the Employer was not enough to establish regular and consistent functional integration between the two units. Applying the two-part test set out in First Commercial Management Inc., BCLRB No. B213/93 (the facts must have sufficiently crystallized and there must be a labour relations purpose to the declaration), the Board accepted the Union’s argument, and declared that the Employer had not met the test and denied the Employer’s application.
Black Gropper successfully represented the Prince George Firefighters Local 1372 in a termination grievance where the grievor, BW, had been terminated from his position after being found guilty of the possession of stolen property over $5000. The Employer argued that the finding made against him in court and the grievor’s lack of forthrightness with the Employer had irretrievably ruptured the employment relationship. Further, the Employer argued that the publicity surrounding the criminal trial was detrimental to the reputation of the employer. The Union argued that Mr. Williams’ conduct, while meriting some form of discipline, was not sufficiently serious so as to warrant the severance of the employment relationship, and that the publicity arising from his case had little or no impact on the Employer’s reputation.
Arbitrator Nordlinger reinstated the grievor. She found that there was no direct link between the misconduct BW was charged with and his duties. Based on the conclusion that BW’s position as a firefighter is not a fiduciary position that requires absolute trust, the arbitrator dismissed the Employer’s claims that the lack of trust resulting from the grievor’s dishonesty was a fundamental breach in the employment contract. Arbitrator Nordlinger held that the negative media attention, embarrassment and dishonor was penalty enough for BW and imposed discipline in substitution for termination.
On July 25, 2016, Arbitrator Robert Diebolt, Q.C. issued his award granting the Faculty Association’s grievance alleging that the University of Victoria had purported to transfer Dr. Caterina Valeo from the University’s Faculty of Engineering, Mechanical Engineering Department to the Civil Engineering Department without her consent, contrary to Section 29 of the Collective Agreement.
Section 29 provides in part that the University may transfer a Faculty Member to an Academic Unit other than the Academic Unit to which she was originally appointed, subject to her consent. The Framework Agreement, which preceded the Collective Agreement, contained virtually identical terms to Section 29.
Arbitrator Diebolt held that Section 29 of the Collective Agreement applied to Dr. Valeo’s circumstances. The Arbitrator accepted the Faculty Association’s argument that Section 37 of the University Act, which authorizes the University Senate and Board of Governors to establish a department, and Section 65.2 of the Collective Agreement which recognizes that authority, addressed only, amongst other things, the creation of new departments, but not the “population of the department”.
Arbitrator Diebolt also held that Section 29 was violated. It was clear that Dr. Valeo was initially appointed to the Mechanical Engineering Department. The job advertisement to which she had applied stated that the successful applicant would be expected to play a leadership role in the development of a new Civil Engineering degree program that was then being planned, and that the degree program would be located administratively in the Mechanical Engineering Department. More fundamental, however, was the University’s offer letter, which stipulated that the Framework Agreement would govern her employment. The offer letter unequivocally offered an appointment in the Department of Mechanical Engineering, and made no mention of an appointment to the Civil Engineering degree program or the Civil Engineering Department, neither of which existed at the time of the appointment. Further, the University’s endeavours to treat Dr. Valeo as if she was a member of the Civil Engineering Department was a “transfer” within the meaning of Section 29 of the Collective Agreement, and that the University neither sought, nor obtained Dr. Valeo’s consent for the transfer. As a result, the University had violated Section 29.
The Arbitrator also rejected the University’s alternative argument that Dr. Valeo had consented to the transfer by her conduct, and that she was estopped from resiling from that consent. At the time of her appointment, the University was seeking a faculty member to contribute to the development of a Civil Engineering degree program, not a department. The formation of a Civil Engineering Department was an uncertain future event, and approximately four years elapsed before the Department was established. Further, since the offer letter stated that the terms of Dr. Valeo’s employment would be governed by the Framework Agreement, which contained the same language as Section 29, it was not reasonable to interpret her pre-appointment conduct as a representation of consent. The fact that she had applied for the position of Chair / Director of the Civil and Environmental Program could not be characterized as consent to transfer irrespective of the outcome of her application. Her willingness to transfer was premised on being awarded the position. Dr. Valeo’s involvement in the development of the new Department was also limited to input respecting the proposed name. Further, while Dr. Valeo had not informed Dean Tiedje that she did not want to transfer to the new Department, she certainly had informed members of the Mechanical Engineering Department including its Head.
For those reasons, Arbitrator Diebolt concluded that the University’s attempt to transfer Dr. Valeo without her consent and without fulfilling the other requirements of Section 29 constituted a violation of the Collective Agreement. He held that the University’s attempted transfer was of no force or effect, and ordered that the University cease and reverse any administrative processes which were currently in process or which had been completed which could result in the transfer of any aspect of Dr. Valeo’s appointment to the Civil Engineering Department.
In this case, Black Gropper successfully represented the Vancouver Fire Fighters’ Union, Local 18 before the BC Human Rights Tribunal (the “Tribunal”) in an application to dismiss a complaint filed by a member disputing their mandatory retirement. Mr. Yaremy, the complainant, alleged that the Employer and Union discriminated against him on the basis of age and disability when he was terminated at age 60 in accordance with a provision of the Collective Agreement. The main issues concerned whether the mandatory retirement was exempted from a complaint of discrimination under Section 13(3)(b) of the Human Rights Code (the “Code”) as a bona fide retirement, superannuation or pension plan and, if not, whether the mandatory retirement was a bona fide occupational requirement (“BFOR”).
The Tribunal decided the first issue so it was unnecessary to deal with the second. The Tribunal held that Mr. Yaremy did not have a reasonable prospect of disputing the application of the exemption under Section 13(3)(b). In particular, the Tribunal accepted the Union’s argument that the pension plan and the relevant provisions of the Collective Agreement were inextricably linked and thus together made up a bona fide retirement plan. This was significant given that cases in B.C. had not previously addressed whether or not provisions in a Collective Agreement mandating retirement qualified under the exemption. The Tribunal also accepted both parties’ argument that the plan was bona fide and adopted in good faith. Accordingly, the main aspect of the complaint was dismissed.
In this case, Black Gropper successfully represented COPE, Local 378, in its opposition to the Employer’s proposed plan to use non-bargaining unit employees at a rental car counter currently staffed by bargaining unit members at the Vancouver International Airport main terminal. The Employer argued that the disputed employees were outside of the scope of the Union’s bargaining unit because they were affiliated with a different rental car brand owned and operated by the Employer. The Union argued that all rental car employees working for the Employer’s rental car operations at the airport, regardless of brand, were bargaining unit members and covered by the Collective Agreement.
Arbitrator Keras found in favour of the Union. He agreed with the Union that the scope of the Union’s certification covered employees working at and from the airport for the Employer and he further found that there had been no agreement to diminish the scope of the bargaining unit. He concluded that non-management employees assigned by the Employer to the airport are bargaining unit employees and are covered by the Collective Agreement, regardless of rental car brand. He rejected the Employer’s argument that the Union was required to seek the support of the disputed employees in this case. The Union’s alternative argument was that the Employer’s proposed plan would result in a breach of the Collective Agreement provisions protecting the Union’s exclusive jurisdiction over bargaining unit work. Arbitrator Keras held that both the Union’s and the Employer’s evidence established that, under the Employer’s proposed plan, the non-bargaining unit employees would be performing work that was, in essence, bargaining unit work.
In this case, Black Gropper successfully represented the International Brotherhood of Boilermakers, Lodge 359, in a termination grievance and the Employer’s subsequent application for review of the arbitration award to the Labour Relations Board. In the arbitration award, Arbitrator Keras agreed with the Union that, although the grievor had engaged in some misconduct, the Employer’s termination of the grievor was excessive in the circumstances. The Employer argued that the Board should set the arbitration award aside and refer the grievance to a new arbitrator.
Board Vice-Chair Terai found in favour of the Union and dismissed the Employer’s application. She agreed with the Union that the arbitration award was consistent with the principles in the Labour Relations Code, that the Employer was not denied a fair hearing, and that Arbitrator Keras correctly applied the Wm. Scott test in determining whether the Employer had just cause to terminate the grievor.
Interestingly, a number of parties sought interested party status at the Board in relation to the arbitration award. However, Vice-Chair Terai declined to grant any other party intervenor standing as she found this unnecessary in the circumstances. The Arbitrator had made a brief reference in the award to the grievor’s disciplinary record over the course of his service in the same industry. The Employer argued that the Arbitrator had in fact credited a 2 month employee with 30 years of industry service in his application of the Wm. Scott test. Vice-Chair Terai found it evident on the face of the award that the Arbitrator did not consider the grievor’s years of industry service as a factor in and of itself in the Wm. Scott test but rather in the context of establishing the grievor’s competency in his occupation. Accordingly, submissions on this issue from other parties were not warranted.
This decision addressed the Employer's cancellation of bargaining dates with the incumbent Union due to an ongoing raid of the bargaining unit. The Employer argued that the Labour Relations Code modified the duty to bargain in good faith in circumstances where a raid application is pending. The Union asserted that the Employer engaged in an unfair labour practice by cancelling the bargaining dates.
The Board held that the Employer's unilateral cancellation of scheduled bargaining dates constituted a refusal to bargain in good faith, in violation of the Labour Relations Code. Specifically, the Board indicated that, unless and until the Board issues an order replacing the incumbent Union with the raiding association, the Union remains the exclusive bargaining agent for the unit. The Employer has a statutory obligation to continue bargaining collectively in good faith and to make every reasonable effort to conclude a collective agreement, or renewal or revision of it, with the incumbent Union.
The Board was not persuaded by the Employer's argument that it was torn between conflicting duties under the Labour Relations Code in circumstances where a raid is pending and it is engaged in collective bargaining. The Board held that the Employer's duty to bargain in good faith is compatible with the prohibition on changes to the terms and conditions of employment while a certification application is pending. Once the Employer and the incumbent Union conclude their collective bargaining, they may apply to the Board to have the renewed collective agreement put in force if the raid application is still outstanding. Finally, the Board dismissed the Employer's argument that requiring it to engage in bargaining during a raid would promote surface bargaining, indicating that, if there are future allegations of a failure to bargain in good faith, such complaints would be dealt with if and when they are filed.
In this policy grievance, the Union challenged the validity of the Employer's written overtime policy. The Union argued the policy was in effect, the very same unwritten overtime policy found by Arbitrator Taylor in Insurance Corporation of British Columbia and Canadian Office and Employees Professional Union, Local 378,  B.C.C.A.A.A. No. 112 (the "Taylor Award") to violate the Collective Agreement. Both the written and previous unwritten policies required authorization for overtime payment despite the fact the Collective Agreement required the Employer to pay overtime rates for overtime worked without any conditions. The Union challenged both policies as a means to stop its members working overtime on their own initiative and to ensure the Employer adequately hired sufficient staff to complete all the work needed to be done, rather than merely an attempt to obtain extra income for its members.
Arbitrator Diebolt found in favour of the Union. He agreed with the Union that the written policy was simply a codification of the previous unwritten policy before Arbitrator Taylor. The written policy continued to insist on authorization as a condition of entitlement to compensation for overtime. This was contrary to the Taylor Award that held where overtime was worked it had to be compensated under the Collective Agreement. Arbitrator Diebolt rejected the Employer's submission that overtime was only compensable where the Employer knowingly allowed such overtime to occur. Regardless of the Employer's knowledge of and/or efforts to dissuade employees working overtime, the Employer had to pay employees for all hours worked beyond their regularly scheduled shifts. As the Taylor Award was not clearly wrong in his opinion, Arbitrator Diebolt deferred to the Taylor Award and followed its findings, and declared the written overtime policy null and void to the extent it conditioned entitlement to compensation on authorization. Although he also found that the Employer was entitled to direct employees not to work unauthorized overtime, any potential resulting discipline could not include forfeiture of an accrued right to overtime payment.
This grievance addressed the circumstances of two elementary school teachers whose requests to return to work early from parental leave were denied. The Union asserted that the Employer's denial of their requests contravened the Employment Standards Act ("ESA") and constituted an improper exercise of management discretion.
Regarding the ESA, Arbitrator Dorsey found that parental leave must be requested no later than four (4) weeks in advance of the start of the leave, and that an employee can be required to designate the end date when s/he requests the leave. He also found that once the end date has been determined by the employee, there is no employee right to unilaterally change it.
Regarding the Employer's exercise of discretion, Arbitrator Dorsey held that it was, in this case, exercised improperly. Specifically, he found that the Employer had exercised its discretion regarding early returns when it issued a form letter to each of the Grievors in which it told them that they could return to work on an earlier date, provided they gave six (6) weeks notice. He found that the Employer's subsequent refusal of their requests (which were given with six weeks notice) was improper. He concluded that refusing the requests, and adding a requirement that early return occur at a natural break in the school year, constituted an unlawful revocation of the Employer's initial exercise of managerial discretion. On this basis, the grievance was allowed.
In this case, Black Gropper successfully represented COPE, Local 378 in its opposition to the Employer’s application to have an Essential Services Order (“ESO”) issued by the Labour Relations Board filed in the Supreme Court of British Columbia. The filing of an ESO in Court is a significant action, as it allows the Employer to pursue contempt proceedings when it believes that the Union is not complying with the terms of the ESO. Generally, the Board must file a decision or order with the Court when it is asked to do so by a party; however, under s. 72(9) of the Code, the Board has the discretion to decline to do so in the case of an ESO.
In its submissions to the Board, the Employer argued that it was necessary to have the ESO filed in Court to ensure that the Union adhered to its terms and that the public was not endangered by any future job action. In support of its position, the Employer referenced several past issues that had arisen between the parties regarding the requirements of the ESO, all of which had been resolved without adjudication. The Employer also relied on rumours of further strike action that it asserted could affect some of its premises and potentially pose a public risk.
In response to the Employer’s submissions, Black Gropper argued that the Union had fully complied with the terms of the ESO and that the parties have proven themselves capable of resolving any ESO-related disputes by agreement. It further submitted that the Employer cannot rely on rumours of possible future job action as the basis for having the ESO filed in Court. Finally, Black Gropper argued that there was no labour relations purpose to having the ESO filed in Court and that the Employer’s application was essentially a bully tactic designed to threaten the Union with contempt proceedings.
In its decision, the Board held that it is an extraordinary measure for the Board to file an ESO in Court and that this step should only be taken where there is clear evidence of a risk of non-compliance with the ESO that could not be handled expeditiously by the Board. The Board further found that the onus was on the applicant Employer to provide persuasive reasons as to why the Board should exercise its discretion to file the ESO with the Court in this particular case. After considering the Employer’s evidence and arguments, the Board found that the Employer’s arguments were not persuasive and held that the application to have the ESO filed in Court should be dismissed.
Black Gropper successfully represented COPE, Local 378 in a grievance regarding an ongoing Employer practice of permitting Union members to work beyond their negotiated hours of work without compensation. As part of its grievance, the Union had provided clear, uncontroverted evidence that numerous employees regularly worked beyond their scheduled shifts without being paid for doing so.
On behalf of the Union, Black Gropper argued that, by condoning this unpaid work, the Employer had violated the overtime provisions of the collective agreement, which required that all time worked in excess of regular hours shall be paid at overtime rates. This practice also violated the Employment Standards Act, which obliges employers to keep records of all hours worked by employees. The Union further argued that it was the Employer’s responsibility to monitor the workplace and prevent employees from working beyond their scheduled shifts, or alternatively, to compensate them for working overtime when it was necessary. In the Union’s submissions, the regular working of unpaid overtime by employees amounted to an unjust enrichment of the Employer, which received the benefit of the extra work without providing any compensation in return.
In response to the Union’s arguments, the Employer submitted that the scheduling of overtime falls within the exclusive prerogative of management and that, accordingly, any overtime that is to be compensated must be approved in advance. It noted that it had continually and clearly communicated to the Union and its employees that all overtime must be pre-approved and asserted that anyone who chose to work beyond their prescribed hours did so unilaterally. As a result of these arguments, the Employer claimed that it was not obliged to compensate employees who perform unauthorized overtime for their extra work.
Arbitrator Taylor rejected the Employer’s arguments, noting that the collective agreement clearly states, without any qualification, that “all” extra hours worked “shall be paid” at overtime rates. He further held that the onus was on the Employer to ensure that employees did not work extra hours if it did not want to pay them for their time and that its failure to do so amounted to both a violation of the collective agreement and was inconsistent with the Employment Standards Act. Notably, Arbitrator Taylor also accepted the Union’s argument that the Employer had been unjustly enriched as a result of the unpaid overtime worked by its employees, and held that on the basis of the principle of quantum meruit, the employees were entitled to claim compensation for their unpaid work. As a result, he ordered the Employer to stop permitting or condoning unpaid overtime and to retroactively compensate all employees who had worked extra hours without being paid for their time.
On June 7, 2012, Arbitrator John Hall issued his decision on the Union’s “Article 21.06 Overtime Grievance”. The Union grieved the Employer’s failure to pay employees a minimum of four hours pay at overtime rates when they work at times, or on dates, different from their shift schedule established at the time of the shift bid posting. The Employer took the position that overtime rates are not applicable to situations where an employee works “extra hours” on a voluntary basis, relying primarily on the past practice at the worksites.
The arbitrator rejected the Employer’s reliance on past practice and found that the Collective Agreement language was sufficiently clear on its face that there was no need to go beyond the words chosen by the parties either through past practice or negotiating history. In doing so, the arbitrator recognized that “extrinsic evidence” (past practice or negotiating history) “can not be used to alter the meaning of the Collective Agreement terms” and to do so “would effectively constitute an amendment to [the Collective Agreement].”
The arbitrator also rejected the Employer’s reliance on past practice on the basis of its failure to “demonstrate that “members of the [Union] hierarchy who have some responsibility for the meaning of the agreement have acquiesced in the practice””. The arbitrator also rejected the Employer’s estoppel argument.
Black Gropper successfully represented COPE, Local 378 in this application to the BC Labour Relations Board alleging that the Employer was bargaining in bad faith. At issue was the Employer's refusal to negotiate "monetary" items with the Union prior to the completion of a government review process, which was not scheduled to conclude for several months. The Employer abruptly took this position during the course of collective bargaining, in spite of having previously agreed to negotiate both monetary and non monetary items. The Union also objected to the Employer's decision to provide notice to the Union, pursuant to Section 54 of the Labour Relations Code, of a plan to significantly reorganize its operations during collective bargaining. In regard to this issue, the Employer had taken the position that its proposed changes would be implemented regardless of the outcome of the collective bargaining process.
On behalf of the Union, Black Gropper argued that the Employer's conduct was bad faith bargaining because it was an intentional frustration of the collective bargaining process. In reply, the Employer claimed that its conduct was in no way improper and that it could not be expected to negotiate monetary items until it had a clear financial mandate from the government.
In its decision, the Board agreed with Black Gropper's position that the Employer had failed to bargain in good faith. In reaching this conclusion, the Board focused on the Employer's refusal to negotiate monetary items, which it held created a unilaterally imposed unwarranted impediment to the effective negotiation of a collective agreement. As a result, the Employer was ordered to withdraw its refusal to negotiate monetary items and to immediately start bargaining with the Union on all collective agreement issues.
One of Black Gropper's unique areas of labour law practice is representing faculty associations at various post-secondary institutions. In the above noted decision, Arbitrator John Hall heard an appeal brought by the Faculty Association (represented by Black Gropper) against the University President's decision to deny Dr. Steven Lund a tenured appointment.
This appeal was quite complex in terms of both evidence and law within a particularly specialized area of labour relations. After nine hearing days over the course of several months, Arbitrator Hall issued his decision on January 18, 2012. The arbitrator accepted the Faculty Association's arguments on a number of fronts and ultimately concluded that the President's decision to deny Dr. Lund tenure was in violation of the Collective Agreement between the University and the Faculty Association. First, the arbitrator found that the University President had inappropriately "stepped outside the process" by privately consulting with the Faculty Dean during the evaluation process and without providing an opportunity to Dr. Lund to reply to the information exchanged during the private discussion. This constituted a denial of procedural fairness and natural justice. Second, the arbitrator found that the University President's decision to deny tenure was unreasonable as it failed to provide a proper "line of analysis."
This is an important and high-impact decision for a number of reasons. It restricts the discretion afforded to University Presidents in making significant decisions on applicants' career trajectory, by requiring detailed, specific and comprehensible reasons for such decisions, particularly where the President is at odds with the lower levels of evaluation. It also ensures that the process of evaluation must be open, transparent and not subject to outside influence.
In light of these findings, Arbitrator Hall upheld our appeal and found that the President's decision was both grounded in procedural error and unreasonable.
In 2006, the University of Northern British Columbia (the “University”) refused to renew the term appointment of Associate Professor Dr. Rezaei, citing his disruptive behaviour which had negatively affected his department. The University of Northern British Columbia Faculty Association (the “Association”) filed a grievance.
In consultation with Dr. Rezaei, the Association reached a settlement with the University. Ultimately, however, Dr. Rezaei refused to accept and/or sign the settlement. The Association sought legal advice and carefully considered its options before deciding to enter into the settlement agreement with the University in March 2007, despite Dr. Rezaei’s rejection of its terms.
In 2009, Dr. Rezaei filed a complaint with the Human Rights Tribunal against the University and the Association under Sections 13 and 14 of the Human Rights Code (the “Code”), in which he asserted that he suffered from a mental disability and that his disruptive behaviour had been a consequence of that disability.
Black Gropper represented the Association before the Tribunal through the course of this case, which resulted in two written decisions. The first decision addressed various preliminary issues. In the second decision, Black Gropper, on behalf of the Association, and legal counsel for the Employer successfully applied for the complaint against them to be dismissed without a hearing on the basis that Dr. Rezaei’s complaint had no reasonable prospect of success. Dr. Rezaei sought reconsideration of the Tribunal’s two decisions, and his reconsideration application was denied. He subsequently sought judicial review of these Tribunal decisions.
This is the decision on the merits of Canadian Office and Professional Employees’ Union, Local 378’s (the "Union") policy grievance asserting that the Employer violated the Collective Agreement by contracting in retired employees to perform bargaining unit work. Black Gropper has successfully represented the Union through a series of stages in this case, including preceding decisions that were favourable to the Union.
In the hearing on the merits, Black Gropper successfully argued that two retired employees who were re-hired into the same departments from which they had retired, without being required to join the Union, were employed contrary to the Collective Agreement. We argued that using either of two legal tests by which arbitrators have distinguished an independent contractor from an employee, the two retired employees were engaged as employees, not as independent contractors.
The Employer took the position that it was lawfully contracting in retired employees to supplement the bargaining unit workforce during periods that the high volume of work could not be practically completed by its existing employees. It argued that in deciding whether the Employer’s conduct breached the Collective Agreement, the Arbitrator ought to take a contextual and comprehensive approach that considered the temporary duration of the contractors’ engagement and whether the contracting during periods of high workload undermined the bargaining unit. It argued that the grievance should not be decided by application of the traditional legal tests for distinguishing contractors from employees.
The Arbitrator did not accept the Employer’s submission that a purely contextual approach ought to be followed, and instead applied the traditional tests that Black Gropper argued were applicable in this case. Arbitrator Dorsey found that the contracting in of the two workers in issue was contrary to the Collective Agreement, and that the Employer had specifically breached the Union security clause, its obligation to require all employees to become members of the Union, and its obligation to post temporary or part-time job vacancies. The Arbitrator ordered the Employer to pay the Union the dues that ought to have been remitted by the two retired employees for hours worked during the disputed period.
This case represents the long awaited conclusion to the question of whether surveillance operators in casinos meet the definition of "employee" under the Labour Relations Code (the "Code") and therefore may be certified as a unionized bargaining unit. This issue has long been in dispute between employers and unions. (Surveillance operators are the "eye in the sky" monitoring and reporting on all occurrences within the casino premises from numerous digital video feeds within the casino.) We successfully argued that surveillance operators in casinos are entitled to unionize and brought much-need finality to this issue (in favour of unions). The Board unequivocally and completely rejected the Employer’s objection and supported our arguments.
We had already successfully argued the Employer's objection should be dismissed in an earlier decision (Gateway Casinos, BCLRB No. B210/2009); however, a reconsideration panel of the Labour Relations Board subsequently held that the objection should be remitted back to a new lower panel for "fresh consideration in light of the guidance and direction given in the [reconsideration decision]." The subsequent hearing took place over the course of five days in November and December of 2010 with considerable evidence adduced by both sides regarding this very unique industrial setting and job classification (despite a 47 paragraph Agreed Statement of Facts).
The Employer's objection centered upon the proposition that unionization of surveillance operators, whose responsibility includes monitoring both patrons and employees and managers in and around the casino for suspicious activity, would compromise the Employer’s right to "undivided loyalty and commitment of persons who are routinely privy to confidential information that is of such a nature that its disclosure would adversely affect the Employer".
We successfully refuted these objections on various fronts:
1. Surveillance operators do not exercise meaningful judgment with respect to confidential information regarding personnel. At most, they scan, observe and report information about personnel represented by a different bargaining agent as a minority of their job duties.
2. There is no potential for conflict of interest between the duties owed to the Employer and the Union by the surveillance operators and that, as such, the surveillance operators’ free and democratic choice to unionize must be respected by the Board.
3. The Union does not have an interest in the type of confidential information that surveillance operators typically have access to (e.g., camera angles, times of cash counts and blind spots in the casino).
4. Surveillance operators would not be in any conflict when conducting audits or surveillance of casino floor employees because they would be in a separate bargaining unit.
5. Because surveillance operators are required to observe and monitor supervisors and managers as part of their duties, they are precisely the type of employees that require the protection afforded by union representation.
We continue to represent the Canadian Office and Professional Employees' Union, Local 378 (the "Union") in an ongoing policy grievance that asserts that the Terasen Gas Inc. (the "Employer") violated, and continues to violate, the Collective Agreement by "contracting in" a group of retired former employees to perform bargaining unit work.
The Union recently achieved a significant victory with respect to a portion of its grievance. Due to the sheer volume of the returning retirees, the Union and the Employer agreed to segment the policy grievance into groups of retirees, divided by department. After numerous appearances, orders for production of documents and settlement discussions, as well as hearing testimony, reviewing exhibits and representations by the Union, the Employer finally acknowledged a contravention of the Collective Agreement. The Arbitrator declared that the first group of retirees was employed as employees, not contractors, in contravention of the Collective Agreement. The Arbitrator ordered a cease and desist order, and union dues.
In this case, Black Gropper represented the Vancouver Fire Fighters (IAFF, Local 18) in their successful grievance against the employer’s attempt to introduce a policy whereby current employees would be required to submit police record checks within one year, and every five years thereafter.
Under the proposed policy the Employer sought to obtain police record checks from virtually all employees in the bargaining unit. The Union argued that this requirement was not justified in the circumstances and unduly infringed on member's human rights, including their privacy rights. Ultimately, Arbitrator Moore determined that the Employer was entitled to obtain police record checks from only seven positions in the bargaining unit (amounting to less than five per cent of bargaining unit members).
A secondary issue addressed in the case was whether employees should be paid for any time they spent obtaining police record checks at the Employer's direction. The Employer maintained that it was not required to pay employees anything for that time. Finding in the Union's favour on this issue, Arbitrator Moore ruled that those employees who were required to obtain a police record check should be paid for their time spent obtaining the check, including travel time, at the overtime rate, and that expenses such as mileage and parking should be also reimbursed.
We represent the Canadian Office and Professional Employees’ Union, Local 378 (the "Union") in a policy grievance asserting that the Employer violated, and continues to violate, the Collective Agreement by "contracting in" a group of retired former employees of Terasen Gas Inc. who have received, or are receiving, pension benefits.
We recently secured two victories on preliminary matters in this case. We were first successful at obtaining a pre-hearing disclosure order that the Employer opposed partially on the basis that the Union had allegedly expanded the scope of the grievance by requesting documents related to the Collective Agreement’s job posting provisions. The arbitrator held that the requested documents had to be disclosed by the Employer as they were potentially relevant to the real substance of the dispute, finding in part that job posting requirements are necessarily incidental to the Union’s grievance.
We were also successful in a subsequent decision where the arbitrator denied the employer's application to require the Union to provide Hoogendoorn notice to a variety of third party corporations who notionally employed a portion of the retired former employees.
We argued that third parties with whom the employer has contracted have no entitlement to notice of an arbitration that only determines the rights and obligations of the union and employer under their collective agreement. The arbitrator agreed and commented that if the third party was consequentially and adversely affected by a ruling of the arbitrator, they could seek redress in other forums. The arbitrator also found that the employer’s submissions wrongly assumed that if a third party was entitled to intervener party status and standing, they would also be entitled to Hoogendoorn notice. As the arbitrator clarified, these issues are distinct.
We represented the Canadian Office and Professional Employees' Union, Local 378, in a policy grievance challenging inquiries made of employees on sick leave by way of the Employers sick leave form.
We were successful on a preliminary matter that the Employer could not introduce evidence on settlement discussions. We also obtained a significant victory on the merits of the grievance. The Arbitrator held that all eight questions challenged by the Union could not be routinely required by the Employer as currently phrased because they were inconsistent with employee privacy rights and arbitral authority, even though some of the questions had been used for years. Specifically, the Arbitrator eliminated questions about subsequent visits, objective findings, treatment and the treating physician’s specialty as they were found to be not reasonably necessary for the administration of the Employer’s short term sick leave plan. Additionally, questions about the first date of illness and physicians visit were re-phrased to focus on the current absence rather than the illness itself, so as to limit the amount of medical information disclosed to the Employer.
This decision signals an evolving and deepening acknowledgement by arbitrators of employee medical privacy concerns, and significantly restricts the type of medical information an employer is entitled to in the context of short term absences. This development is important because employers and unions have tended to rely on cases involving longer and more unique absences in determining question appropriateness for all cases of sick leave, whereas this decision strongly suggests a demarcation between the types of questions allowed in those cases and those routinely allowed for short term absences.
We represented the Communications, Energy and Paperworkers' Union of Canada, Local 2000 in a grievance about the right of the Union and/or its regular situation holders (regular full-time employees) to hire substitutes from the Union’s substitute board to fill their regular situation holders when absent, absent Employer consent. The Employer unilaterally ended this practice. The Union grieved, asserting that this violated the Collective Agreement and longstanding past practice.
Arbitrator Dorsey held that the industry and the parties' relationship is "steeped in history and tradition" and the Employer had negotiated away management’s presumptive right to hire and replace or not replace absent employees. Therefore, the Union and/or its regular situation holders do have the right to employ substitutes to fill regular situations when the regular situation holder is absent, and do not require Employer consent to do so.
The Union also sought a clear ruling that that the Employer's unilateral implementation of this change pending an Arbitral determination, despite the Union’s invocation of the "status quo" (or conditions prevailing) provision of the agreement (which provides that the Employer is to respect the status quo pending a determination of the grievance), constituted a further separate violation of the Collective Agreement. The Union asked Arbitrator Dorsey to clarify the Arbitral jurisprudence on the conditions precedent it must satisfy to invoke the status quo provision, submitting that where there was a clear violation of longstanding past practice and/or the Collective Agreement, irreparable harm is not a condition precedent. Arbitrator Dorsey upheld the Union's position on the law, finding that irreparable harm to the Union was not necessary, and further ordered that in these circumstances the Employer had engaged in a second independent breach of the Collective Agreement by not honouring the status quo provision in the Collective Agreement.
On behalf of one of our clients, we represented a member who was individually named in a human rights complaint. The allegations were that she (as well as her institutional employer, who we did not represent) had discriminated against the complainant with respect to a service customarily available to the public on the basis of mental disability, contrary to Section 8 of the Human Rights Code. We successfully secured two significant victories with respect to this matter: a partial publication ban and a dismissal of the complaint in its entirety as against our client.
First, pursuant to Rule 6(5) of the Rules of Practice and Procedure, we applied to limit public disclosure of the identity (or any identifying characteristics) of the member, taking the position that her identity should be protected unless the Tribunal rejected our application to dismiss, thereby determining that the complaint should proceed as against her individually. The Tribunal granted the application largely on the basis that the member was a professional, so her reputation may have been harmed by the nature of the allegations made against her if they became public knowledge.
Second, and more significantly, we were successful in having the entire complaint dismissed as against the member at a preliminary stage, thus avoiding what was scheduled to be a two week hearing. We primarily argued that the allegations ought to be dismissed for failing to further the purposes of the Code under Section 27 (1)(d)(ii) as at all material times the member was acting within the scope of her employment duties, and her employer was already named as a separate respondent. The Tribunal agreed and dismissed the complaint, finding that as an employer is responsible for any acts or omissions committed by an employee in the course of their employment, it would not further the purposes of the Code to proceed.
Black Gropper represented the Communications, Energy and Paperworkers' Union of Canada, Local 2000, in a grievance regarding the proper interpretation of a collective agreement provision permitting a reduction in the number of pressroom workers. The Employer argued that the conditions of the article had been met, and thus the Employer was within its rights to reduce the number of pressroom workers on each shift. Central to the Employer's position was an argument that a decrease in the business of the Employer was evidence that the "volume”"of pressroom work had declined. The Union grieved the notice of reduction of workers, arguing that because the volume of work had not decreased, the Employer could not rely on the collective agreement provision to reduce the number of pressroom workers.
Arbitrator Young upheld the Union’s position that the Employer's notice of reduction of pressroom workers violated the collective agreement, as the Employer had not established that there had been a "significant decrease in the volume of pressroom work," which was required by Article 18.04. Arbitrator Young rejected the Employer's argument that a decrease in business served as evidence of a decrease in the volume of pressroom work. Therefore, the Employer's notice was set aside, and the number of pressroom workers on each shift remained unchanged.
We represented the Communications, Energy and Paperworkers' Union of Canada, Local 2000 in a policy grievance, successfully arguing that the Employer had an obligation to make contributions to a Dental Plan run by Union trustees while employees were on long and short term disability benefits. According to a Letter of Understanding between the parties, the Employer agreed to contribute to the Dental Plan "per paid shift." Although the Arbitrator noted "per paid shift" raised some ambiguity, he found in favour of the Union that "paid shift" includes employees on long and short term disability benefits as this was the most reasonable interpretation consistent with the Collective Agreement. Furthermore, although the Employer did not make contributions since 1982, the Arbitrator found past practice did not resolve the ambiguity as the Union run Dental Plan was a separate legal entity from the Union executive and no Union member with "real responsibility" was aware of such a practice.
We are representing COPE, Local 378, in applying to certify a number of supervisory employees. The employer is opposing the application on the basis of the employees alleged management status.
Black Gropper recently secured a significant victory on a preliminary matter in this case, assuring that its client would receive procedural fairness throughout the hearing.
Black Gropper was successful in arguing that the Employers witness (the "Witness"), who had completed her testimony over three days of hearing, should not be recalled and that a new document she had created after her testimony was closed was inadmissible. The Vice-Chair ruled that "to allow...[the Witness] to revisit her earlier testimony at this stage would undermine the Union's right of cross-examination." The Union was also successful in arguing that a number of other documents the employer sought to introduce, which had an "obvious connection" to the Witness or which the union "likely" would have cross-examined the Witness on if the Union knew that the employer would rely on the documents, were either entirely inadmissible or could only be used by the employer for purposes of cross-examining the Union's witnesses.
This case is particularly significant because there are very few, if any, reported cases of the Labour Relations Board dealing with these issues.
We are representing COPE 378 in an arbitration seeking enforcement of a Consent Award regarding sick leave benefits and employee privacy. That arbitration is scheduled to proceed later this year. Once hearing dates were set, we made a preliminary application on behalf of the Union for interim relief from the Employers alleged violation of the Consent Award, pending resolution of the dispute.
It was the Union's position in the preliminary application that the Employer, through a third party service provider, was regularly and routinely requesting significant amounts of employee medical information, without justification, and in violation of the Consent Award that the Union sought to enforce at arbitration. The Union asserted that pending arbitration of the merits, employees could suffer irreparable harm as a result of the Employer's alleged intrusions upon their privacy. The Union's preliminary application was successful, and the Arbitrator issued interim Orders preventing the Employer from requiring medical information beyond that which the Parties had agreed to under the Consent Award.
We represented the BCTF, arguing that under the Collective Agreement, teachers are entitled to eighty minutes of preparation time per week. We successfully argued that the Employer must ensure teachers receive this time or that it is made up where it is lost due to the Employer's actions / directions or due to a statutory holiday or non-instructional day. The Arbitrator held the use of "shall be provided with a minimum of eighty minutes preparation time" in the Collective Agreement imposed a mandatory obligation on the Employer to supply, and not merely schedule, preparation time.
Representing the Vancouver Fire Fighters' Union, Local 18, we successfully objected to the Employer's attempt to adduce evidence of bargaining history as an extrinsic aid to interpreting provisions in the Collective Agreement in regards to overtime pay. Agreeing with the Union, the Arbitrator held that the bargaining history was inadmissible because the parties had previously agreed to exclude it. The Employer appealed this Preliminary Award to the Labour Board on the basis that the Arbitrator's refusal to admit evidence was inconsistent with the Code. The Labour Board remitted the matter back to the Arbitrator on the narrow issue of whether, and what, clear and unequivocal grounds existed for finding such evidence inadmissible. The Arbitrator upheld his original Preliminary Award, and set out the clear and unequivocal grounds for his decision.
We represented the Vancouver Fire Fighters' Union, Local 18, arguing that a fire fighter is entitled to overtime pay while on duty beyond his/her scheduled shift. The Arbitrator held that the grievor, who attended at hospital for a workplace injury and prepared a WCB claim after his shift, was on duty as he was still wearing his work gear at the time, and because he attended hospital and completed the claim form, at the direction of his supervisor. Based on language in the Collective Agreement, the Arbitrator found that the grievor was "working" during this period of time and thus, was entitled to overtime pay. The Employer appealed this decision to the Labour Board, where it was consolidated with the above-mentioned appeal of the preliminary application. As the Arbitrator upheld his original Preliminary Award, the merits of the decision were also upheld.
We represented the BCTF, in this case involving the same issues as the Kamloops decision referred to above (albeit in the context of different Collective Agreement language). The Arbitrator held that the use of "shall be entitled to ninety minutes per week for the purposes of preparation time" in the Collective Agreement imposed a "clear and unambiguous" mandatory obligation on the Employer to provide a specific amount of preparation time per week.
We represented the Faculty Association of UBC, arguing that the University President's decision not to recommend the promotion of a faculty member was unreasonable and arrived at through procedural error, and should be reversed. The Arbitrator agreed and held that the President's decision was unreasonable and arrived at through procedural error. The Arbitrator substituted the President's decision with a recommendation that the applicant be promoted.
We represented the Faculty Association of UBC, in a case involving similar factual issues as the Chiu-Duke decision referred to above. The Arbitrator held that the University President's decision not to recommend an applicant for promotion was unreasonable and arrived at through procedural error due to limited consideration of the applicant's work quality. The President's decision was reversed and substituted with a recommendation that the applicant be promoted. This decision was upheld by the Labour Relations Board and the Supreme Court, although the narrow issue of remedy was overturned by the Court of Appeal.
We represented the Faculty Association of UBC, arguing that in developing the Master of Educational Technology program, the University contravened the Collective Agreement by directly negotiating with professors and effectively terminating a professor from a work assignment due to Faculty Association membership. The Arbitrator held that the University's negotiation of individual employment contracts with employees in the new program contravened the Employer's obligation to bargain exclusively with the Faculty Association. A compliance order was issued to remedy the lost opportunity of a member who refused to sign such a contract.