Vancouver (City) – and- Vancouver Firefighters' Union, Local 18 (Police Record Checks Grievance)
(2010), 102 C.L.A.S. 46 (Moore)

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.

The full text of the decision can be found here.

Canadian Office and Professional Employees' Union, Local 378 and Terasen Gas Inc. (Policy Grievance) [2010] B.C.C.A.A.A. No. 59 (Dorsey) (QL), and June 17, 2010, Letter Decision.

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.

COPE 378 v. ICBC (HR187 – Short Term Disability Form Grievance) (Burke) unreported, January 31, 2010

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.

Communications, Energy & Paperworkers’ Union of Canada, Local 2000 v. Victoria Times Colonist (Re: Substitute Replacement of Regular Situation Holders Grievance), Arbitrator Dorsey, December 10, 2009

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.

Kelowna Daily Courier - and - Communications, Energy and Paperworkers' Union of Canada, Local 2000 (Contract Interpretation Article 18.04), Arbitrator Young, December 4, 2009.

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.

Pacific Newspaper Group and Communications, Energy and Paperworkers' Union of Canada, Local 2000, Arbitrator Steeves, November 5, 2008

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.

Rogers Sugar Ltd. v. Canadian Office and Professional Employees, Local 378 (Application for Interim Relief), [2008] B.C.L.R.B. No. B167/2008 (Adam)

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.

Canadian Office and Professional Employees, Local 378 v. Accenture Business Services of British Columbia (Application for Interim Relief), [2008] B.C.C.A.A.A. No. 115 (Taylor)

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.

British Columbia Public School Employers' Assn./Board of School Trustees of School District No. 73 v. British Columbia Teachers' Federation/Kamloops Thompson Teachers' Association, [2007] B.C.C.A.A.A. No. 60 (Kinzie)

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.

City of Vancouver and Vancouver Fire Fighters' Union, Local 18 (Preliminary Award to Ditchburn Overtime Grievance), April 4, 2006 (unreported) (Diebolt); Vancouver (City) (Re) [2006] B.C.L.R.B.D. No. 170 (Reconsideration Decision); City of Vancouver and Vancouver Fire Fighters' Union, Local 18 (Decision upholding Preliminary Award when Remitted to Arbitrator), September 28, 2006 (unreported) (Diebolt)

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.

City of Vancouver and Vancouver Fire Fighters' Union, Local 18 (Award on the Merits in Ditchburn Overtime Grievance), April 19, 2006 (unreported) (Diebolt); Vancouver (City) (Re)  [2006] B.C.L.R.B.D. No. 170 (Reconsideration 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.

Mission School District No. 75 v. British Columbia Teachers' Federation/Mission Teachers' Union, [2005] B.C.C.A.A.A. No. 94 (Burke)

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.

University of British Columbia v. Faculty Association of the University of British Columbia, [2005] B.C.C.A.A.A. No. 29; [2005] B.C.C.A.A.A. No. 66 (Gordon) ("Chiu-Duke")

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.

University of British Columbia v. University of British Columbia Faculty Assn., Arbitrator Jackson, unreported, April 15, 2004; [2004] B.C.L.R.B.D. No. 331; [2005] B.C.L.R.B.D. No. 86; 2006 BCSC 406; 2007 B.C.C.A 201; [2007] S.C.C.A. No. 275 (application for leave dismissed)

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.

University of British Columbia v. University of British Columbia Faculty Assn., [2004] B.C.C.A.A.A.
No. 39 (Dorsey)

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.