NEWS
Black Gropper in the Community
Allan Black, Q.C. is participating as an Advisory Committee Member at the
Lancaster House 2012 Human Rights and Accommodation Conference taking
place March 28 and 29, 2012 at the Hyatt Regency Vancouver.
Jessica Burke will be a speaker at the
Lancaster House 2012 Human Rights and Accommodation Conference taking place
March 28 and 29, 2012 at the Hyatt Regency Vancouver. Jessica will be the
union-side member of a panel addressing the accommodation of episodic
disabilities.
Allan Black, Q.C. is participating in the opening panel of
Insight’s
7th Annual Western Canada Labour Relations Conference addressing the topic:
“Who is an Employee? Are Management Exclusions Expanding” taking place January
24 and 25, 2012 at the Four Seasons Hotel.
Jitesh Mistry is speaking on the topic of “Accommodation: Dealing with medical
disabilities, child-care/elder-care demands, attendance and job performance
problems” at the November 23, 2011
Lancaster House Labour
Arbitration Conference in Vancouver. Jitesh will be the union-side member of
a panel that also includes Arbitrator Stan Lanyon, Q.C. and employer counsel
Judith Macfarlane.
Staffing Updates:
Black Gropper is pleased to welcome
Carolyn Janusz as
a new associate in the firm.
Stephanie Mayor
is currently seconded to the Labour Relations Board
and the Employment Standards Tribunal as their legal
counsel. In this role, she will be advising the
Board and the Tribunal on various labour and
employment related matters, and appearing as
co-counsel before the BC Supreme Court and BC Court
of Appeal on judicial reviews and their appeals.
Some Recent and Ongoing Litigation
Canadian
Office & Professional Employees' Union, Local 378 v. Fortis BC Inc. (Re:
Retirees Doing Bargaining Unit Work)
(Dorsey) unreported, October 28, 2011
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.
Gateway
Casinos and Entertainment Limited dba Lake City Casinos v. Canadian Office and
Professional Employees' Union, Local 378, BCLRB No. B80/2011 (Mahil)
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.
Canadian
Office & Professional Employees' Union, Local 378 v. Terasen Gas Inc. (Re:
Retirees Doing Bargaining Unit Work
– Martin Pollard and Gordon Simister)
(Dorsey) unreported, November 25, 2010
We continue to represent the Canadian Office and Professional Employees' Union, Local 378 (the "Union") in an ongoing policy grievance that asserts that Terasen Gas Inc. (now Fortis BC) (the "Employer") violated, and continues to violate, the Collective Agreement by "contracting in" a group of retired former employees to perform bargaining unit work.
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.
E v. An Institution and others, 2010 BCHRT 212
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.
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.