BCGEU Arbitration Awards

The following BCGEU Arbitration Awards may be of interest to Stewards.

Government of BC and BCGEU - June 13, 2008 - BCLRB B91/2008

The union applied under Section 99 seeking review of a Claims Review Committee (CRC) decision. The union argued the member was denied a fair hearing because the CRC panel relied on documents that had not been disclosed or provided to him during the hearing. The Board found in the union's favour and ordered that the matter of the member's qualification for Long Term Disability benefits will be referred to a different CRC panel.

BCGEU and Fraserview Community Services - June 5, 2008 (WCB Appeal)

The member was a residential care worker who was injured on the job in 2004. The union has filed many appeals since 2004 fighting for recognition of his physical and psychological injuries. On June 5, 2008, the WCB issued a decision letter stating his permanent functional impairment award would be 46.78% and he will receive a 100% loss of earnings award. This is the first 100% loss of earnings award for any BCGEU member since the Liberal legislative changes in 2002.

BCGEU and Ministry of Forests - July 11, 2008 #970

In September 1994 the member began working as a Forest Technician. In June 2006, pursuant to a settlement agreement he returned to work with probationary status. On February 21, 2007, he was rejected on probation. The arbitrator found for the union and reinstated the member. The suitability test requires the employer to establish and communicate reasonable standards to probationary employee and to give them a fair opportunity to prove their abilities. The employer did not show it had advised the member of the expected standards, or that it had told him he was not meeting those standards and that failure to meet those standards could result in removal from the position.

BCGEU and B C Pavillion Corp - June 18, 2008 #969

The arbitrator accepted the union's argument that part-time and event-time employees met the test for eligibility (having worked at least 1800 hours in 12 months) to be converted to regular positions. The members were entitled to be converted to full time positions and entitled to compensation for the employer's failure to convert them.

The employer filed a section 99 review of the arbitration award. The Board issued reasons on August 29, 2008 dismissing the application as disclosing no reasonable basis for an appeal.

Government of BC and BCGEU - June 11, 2008 #968

The member was not placed in a position through the job search process administered by the Rehab Committee. The employer refused to extend the period of job search and terminated the member's employment. The union argued that the Human Rights Code applies to the placement process and the employer's efforts to place the member did not satisfy the duty to accommodate short of undue hardship.

The Arbitrator found that the employer did have a duty to accommodate the member while she was before the Rehab Committee. The grievance failed because the member did not co-operate with her obligation to facilitate the accommodation process. The member's conduct became a relevant factor because it impaired the placement/accommodation process in two ways: the member refused to respond to the employer's requests for updated medical information (and a refusal to agree to an independent medical review) and did not provide information to support a broader skill set. The member's lack of cooperation in response to reasonable requests made of her during the placement process relieved the employer of any duty to pursue additional accommodation measures.

Province of BC and Matuszewski (July 14, 2008) B.C. Supreme Court

The union intervened in the employer appeal of the BC Human Rights Tribunal decision which found the employer violated the Human Rights Code because members do not accrue seniority while in receipt of long term disability benefits. The Court allowed the employer appeal on the issue of mootness having concluded that the arbitration award in Shesha (2002) had resolved the issue in the employer's favour. The Court referred back to the Tribunal the issue of whether any outstanding damages are owed to the member for wage loss, damages to dignity and interest.

NIL/TU, O Child and Family Services Society and BCGEU (August 27, 2008) BC Court of Appeal
NIL/TU,O is a First Nations social services agency. The union applied for certification in 2005. The employer objected to the application claiming the agency was not covered by provincial legislation. The Board rejected the employer argument and the union was granted certification in 2006. The employer appealed the Board decision to BC Supreme Court. The Supreme Court agreed with the employer and cancelled the certification. The union appealed the Supreme Court decision and in the meantime applied for and was granted federal certification. In the recent Court of Appeal decision, the union successfully defended the Board decision that the delivery of social services is provincial not federal work and the employees are governed by provincial not federal legislation. The Court of Appeal ordered the Board certification to be reinstated.

BCGEU and BC Public Service Agency (April 14, 2008) BCLRB No. B47/2008

The Employer applies under section 99 of the Code for review of a supplementary arbitration award that found in favour of the Union regarding the member's entitlement to the signing bonus payment. The Employer argued the arbitrator exceeded his jurisdiction by altering the parties' implementation agreement to include the signing bonus amount. The Board concluded the arbitrator did not amend, alter or otherwise interfere with the implementation agreement. The arbitrator decided an issue which had not been the subject matter of and arose after the signing of the agreement. He had jurisdiction because he remained seized of the matter to resolve any issues arising from the implementation of the original award.

Ministry of Children and Family Development and BCGEU (April 1, 2008) BCLRB B38/2008

The Employer applied under section 141 for leave and reconsideration of BCLRB No. B265/2007 which sent back the issue of the amount of interest payable to the arbitrator to allow submissions regarding the substitution of a CPI adjustment and with direction to provide an analysis of the issues. The Board denied leave for reconsideration. The parties have agreed to resolve the outstanding issues in accordance with the arbitrator's determination to adjust the lost wages upwards to reflect the interest rate as measured by the Consumer Price Index.

Sutherland Hills Rest Home Ltd. and BCGEU (March 13, 2008) BCLRB No.B32/2008

The Union complained the Employer dismissed an employee contrary to sections 6 and 9 of the Code. The Board made a declaration the Employer dismissed the employee without proper cause as it did not discharge its onus to prove the employee engaged in conduct deserving of some discipline. The Employer presented uncorroborated hearsay evidence on a material fact in dispute. The employee was re-instated.

BCGEU and Ministry of Children and Families (April 23, 2008) Settlement

The member filed a grievance alleging the Employer's failure to convert her status from auxiliary to regular was a violation of her human rights. The member was a long service auxiliary employee who could not work full time hours due to health problems that would meet the definition of a disability. The parties were able to resolve the issues on a without prejudice basis on terms that resulted in a retroactive conversion to part-time regular status for the member and a financial payment to compensate her for the sick leave benefits she did not receive because of the Employer's failure to convert her.

Government of BC and BCGEU (November 28, 2007)-Expedited

The issue concerned the level of benefit entitlement while the member was on maternity and parental leave. The member had been working on a part-time job share of her previous full time position. She took a temporary assignment with another Ministry (.75 position). The member understood that her job sharing arrangement had ended and at the conclusion of the temporary assignment, she would be expected to return to work full time. During the temporary assignment, the member commenced maternity leave. She was paid the maternity/parental leave allowance for the remaining time of the temporary position but her allowance was reclassified based on the part time job share rather than a full time position. The arbitrator accepted the union argument that her employment status was full time at the conclusion of the temporary assignment.

Ministry of Children and Family Development and BCGEU (December 4, 2007) LRB B265/2007

The employer applied under Section 99 for a review of the arbitrator's award regarding the calculation of interest. The union had argued that an award of interest was payable on the grievor's lost wages. The arbitrator determined the lost wages must be adjusted upwards to reflect the interest rate as measured by the Consumer Price Index. The Board found that the parties had made extensive submissions regarding whether interest was payable and the calculation but the parties had not made submissions on CPI and were not asked for submissions on CPI. The matter was sent back to the arbitrator to allow submissions regarding the substitution of a CPI adjustment and with direction to provide an analysis of the issues

CSSEA and Community Social Services Bargaining Association (December 11, 2007) #958B

This preliminary decision addresses the issue of the provision of the early intervention program (EIP). The arbitrator, relying on the equivalency document as an interpretation guide, concludes that for the EIP to satisfy the requirement of the Collective Agreements, it must operate in accordance with the policies and procedures set by the Community Social Services Early Intervention Program. Some of these policies and procedures may require some alterations to incorporate other benefit providers but these can be addressed by the steering committee.

Emcon Services Inc. and BCGEU (December 6, 2007) #962

The parties chose certain representative grievances to illustrate their differences regarding the interpretation of the holiday provisions set out in Article 17 of the Collective Agreement. The arbitrator concluded that the language expressly contemplated that overtime payments will be paid on a pro-rated basis and that workers will be entitled to overtime payments for any hours they work on a designated holiday (holiday defined as a 24 hour period). The Employer argued, relying on a Memorandum of Understanding, that all statutory holidays are Shut Down days and therefore no employee ever works on a designated holiday. The arbitrator accepted the Union's argument that the application of the stat holiday language is triggered by the employee's regular shift rotation. If a designated holiday falls on an employee's day off in their regular shift rotation, then Article 17.2 applies and if a designated holidays falls on a day of work in their regular shift rotation, then the double time provision applies.

Argo Road Maintenance and BCGEU, November 7, 2007 #933B

The member, a 16 year stockman employee was terminated by the employer under the tech change language in the collective agreement. The employer argued the employee was unable to satisfactorily perform the new duties of the job using the new computer technology. The tech change language states that loss of a job due to technological change results in the offer of a vacancy or severance. The Arbitrator found the employer had provided training, familiarization and on the job coaching on the new computer system. The arbitrator rejected the union's characterization of the termination as a dismissal for a non-culpable inability to perform the requirements of the job. The arbitrator concluded the employer discharged its onus of proving it made a reasonable and bona fide assessment of the member's performance in relation to the standards, and dismissed the grievance. As the employer's offer of severance had not been withdrawn, the arbitrator ordered that it be paid to the member.

BCGEU and CSSEA #958 (October 31, 2007)
The Union Bargaining Association filed a policy grievance with respect to the health and welfare benefits coverage provided by some of its members. The Unions' position is that the benefits provided are not equivalent in the sense that the term is used in Article 27 of the collective agreements. The Arbitrator used the jointly developed Equivalency Document as an interpretative guide.

The Unions argued if the benefit coverage does not include a CRC process it does not meet the equivalency requirements of Article 27 as employees facing the denial or cancellation of a LTD claim must commence a court action to obtain a final resolution. The Arbitrator concluded that the absence of a CRC process is a breach of the requirement in Article 27 that the coverage be "equivalent."

On the second issue relating to plans that include provisions that exclude LTD eligibility coverage for pre-existing medical conditions, the Arbitrator found that the significance of such an exclusionary provisions is self-evident. E concluded that this limitation on eligibility is expressly prohibited in the Equivalency Document and the inclusion of a pre-existing medical condition clause is a breach of the Article 27 requirement for "equivalent" coverage.

BCGEU and BC Public Service Agency #957 (October 1, 2007)
The grievor, a four year member was terminated for inappropriate behaviour. The Union filed a termination grievance. The Employer raised a preliminary objection arguing the member had breached 8.10 which prohibits members from pursuing grievance issues through other forums or processes. The member wrote a series of letters to the Deputy Minister regarding the termination. The Arbitrator found that the evidence established the member had attempted to pursue the subject of the grievance through another channel outside of the grievance process. By operation of Article 8.10(b) the Arbitrator concluded the grievance had been abandoned.

Thompson and Government of BC and BCGEU #942A (July 17, 2007)
In an earlier award, the arbitrator awarded that the member's termination be substituted with a 6 month suspension. The union challenged the content of the employer's amended letter of suspension which raised concerns about the member's conduct not in evidence at the hearing. The employer argued that it had the right to set expectations and that the arbitrator did not have jurisdiction to decide the issues raised in the grievance. The arbitrator finds for the union and orders the employer to comply with the award by deleting certain paragraphs of the suspension letter. It was not appropriate for the employer to raise new grounds for discipline.

Legal Services Society of BC and BCGEU (June 22, 2007) (Consent Order)
The Union alleged the Employer violated the Collective Agreement when it refused to allow certain employees a modified work week schedule. The parties agreed that an amended version of the modified work week will be introduced for certain Intake Clinic employees on a trial basis for a period of two years. The parties established a series of guidelines for the Modified Work Week application process and established a joint committee which will conduct a review of the trial period at the end of the first year of the two year period. There will be no Modified Work Week at the LawLine but that decision will be reviewed at the time of the first year review.

BCGEU and Lifestyle Retirement Communities Ltd. #952 (June 14, 2007)
The member was a care aide at a retirement facility. She was a six year employee who was terminated on October 16, 2006 for misconduct. The union acknowledged the member had made intemperate remarks to a co-worker but argued termination was an excessive penalty. The arbitrator gave the benefit of the doubt to the member regarding the evidentiary conflicts about the content of the member's remarks. The arbitrator upheld the grievance and reinstated the member. The discharge was replaced by a one month suspension and the member was directed to attend anger management training.
 

Highways Service Area 11 and 20 (Mainroad and Interior Roads) Settlement Summary
In 2002 after the Liberal government came to power they informed highways maintenance contractors that unless labour costs were cut by 10% as of April 1, 2004 there would be no successorship in the next round of contracts. The union entered into negotiations, opening up collective agreements to find the required 10% and in exchange the union got successorship and long-term, 10-year contracts. In two service areas (11 [Mainroad] and 20 [Interior Roads]) the maintenance contracts did not expire until 2006. The union learned in late 2005 that instead of getting the 10% cut in funding in those areas on April 1, 2004, the employers did not get any cuts until the fall of 2006. All of the collective agreement savings between April 1, 2004 and the fall of 2006 went into corporate profits for Mainroad and Interior Roads.

The union filed grievances against both employers for recovery of the members' money that had contributed to the windfall profits of the companies for that period.

After several days of hearing on both files, the union entered into settlement negotiations. The Ministry was also at the table, as they accepted some responsibility in the matter. With the assistance of union staff, the union was successful in negotiating a lump sum payment of $5,000 for each Mainroad regular employee affected, including those who had left Mainroad employment and a smaller amount for each auxiliary. The union also got them back their modified work week for this year. In Interior Roads, the union got the same amount, but because Interior Roads had lost the contract and were no longer in the service area, the Ministry picked up a half share of the final settlement costs. Total amount of the settlement was over half a million dollars. The union believes that this is the largest grievance settlement the union has achieved.

UBC and CUPE and BCGEU - BCLRB No. B79/2007 (May 4, 2007)
CUPE Local 2950 applied under Section 35 and 139 for a declaration that employees employed by UBC at the Okanagan campus performing clerical, library and other related work are covered by the Local's certification and the UBC/Local 2950 collective agreement. CUPE Local 116 made a similar application seeking a declaration that employees of UBC performing clerical, technical and other related work at UBCO are covered by the UBC/Local 111 collective agreement. UBC and BCGEU argued that the bargaining unit that existed between Okanagan University College and BCGEU should be maintained after the successorship.

The CUPE Locals' applications are dismissed. The Board declined to exercise its discretion under Section 35 to alter or restructure the existing collective bargaining structure at UBCO. Special weight was given to the existing BCGEU unit and on balance the IML factors supported a finding that a rational and defensible line could be drawn around the existing GEU unit and thus this unit was appropriate for collective bargaining.

BCGEU and Ministry of Children and Family Development (Preliminary Application) #948 (March 13, 2007)
The member was dismissed for off duty conduct and resulting criminal charges relating to a marijuana grow operation. The criminal charges were stayed and the materials seized during the police search were excluded as the member's Charter rights were violated. Prior to the termination hearing, the Union applied to exclude the evidence obtained during the search and statements made by the member during the investigation.

The arbitrator refused to exclude the evidence obtained during the search for the following reasons: it existed independent of the Charter violation, the Employer had no involvement in the search, Section 24 of the Charter is applied less restrictively in the civil context and the member's liberty was not at stake.

The arbitrator did exclude statements made by the member during the investigation as that evidence did not exist independent of the Charter violation.

The parties negotiated a financial settlement of the outstanding issues.

Ministry of Public Service and BCGEU, Settlement (January 4, 2007)
A long service single parent liquor store clerk was terminated in October 2005. Prior to the arbitration hearing, the member tragically died. The union was able to negotiate a retroactive reinstatement of the member's employment resulting in the payout of significant life insurance benefits to her dependent children.

Government of BC v. BCGEU #942 (January 17, 2007)
A long service store clerk was dismissed for inappropriate behaviour and theft at the Long Service Awards at Government House in 2005. The grievor expressed remorse for her actions and had written letters of apologies. The grievor denied stealing cutlery.

The union argued termination was an excessive response as the grievor had a clean record during 18 years of service.The union argued the circumstances were similar to an earlier award arising out of the same Service Awards ceremony where that arbitrator reinstated the member and imposed a six month suspension.

The arbitrator found the member engaged in serious misconduct and severe disrespect. However, he concluded that her conduct was a momentary and emotional aberration and accepted her expression of remorse as genuine. He followed the earlier award finding the termination was excessive and substituted a six-month suspension. He found there was no clear and cogent evidence to support the theft allegation.

Government of BC v. BCGEU #714B (February 28, 2007)
The member, a long service liquor store manager, was discharged for theft of alcohol on August 21, 1998. At the investigation meeting, the member admitted the theft and disclosed a lengthy alcohol addiction. The arbitrator upheld the termination in an award dated March 14, 2000 relying on the "significant impairment" test. The union appealed the arbitration award. That test was overturned in 2002 when the Board adopted a new hybrid test in Fraser Lake Sawmills for cases involving addiction issues and misconduct. The case was sent back to the arbitrator in 2003. The arbitrator sought guidance from the Board about which test should apply. In June, 2006, the Board confirmed he should apply the Fraser Lake Sawmills test.

The arbitrator found the employer did not accommodate the member despite having knowledge of his disability. The employer knew he had entered a detox program, the member confessed to the thefts, and was attending counselling and AA. In recognition of the culpable factors, the arbitrator substituted a 19 month suspension and reinstated the member to a bargaining unit position with no supervisory duties.

The union received notice on March 16, 2007, the employer is appealing the award to the Board and the Court of Appeal.

Matuszewski v. Province of BC (January 17, 2007) BCHRT
A member challenged the provision of the collective agreement which states members do not accrue seniority while in receipt of long term disability benefits. The Human Rights Tribunal member found there was a prima facie case of discrimination. The employer chose not to call any witnesses, relying instead on arguments that the Tribunal should not consider the case on the merits (a similar issue had been unsuccessfully argued at an arbitration hearing in 2002). In the absence of any evidence having been called, the Tribunal found the employer violated the Human Rights Code.

Government of BC and BCGEU, LDB Hour of Work Settlement (December 7, 2006) 881B
The union presented proposals from employees at three liquor stores--100 Mile House, Powell River and Quesnel--to change the hours of work at each store. After opening statements, the parties agreed to the arbitrator's suggestion that the issues be referred back to the representatives who negotiated the Hours of Work agreement changes through the CAIACC Committee. The Consent Order provided background information, confirmed the series of steps to be taken by a party wanting to change an existing work schedule, confirmed the factors to be reviewed in deciding whether an hour of work schedule meets the parties' goals and the relevant criteria. The proposed schedules for the 100 Mile House and Quesnel stores were denied as they would result in increased costs to the employer. The amended schedule for the Powell River store met the required test and was approved.

Ministry of Public Service and BCGEU, Award # 936 (September 30, 2006)
The union grieved the termination of a long service employee who engaged in drunken behaviour at the Long Service Awards at Government House. The arbitrator found that dismissal was an excessive response. There was just cause to discipline the employee but because of his length of service, his employment record and the isolated nature of the misconduct, the arbitrator substituted a six-month suspension. However, he also found the employee provided evasive testimony and made duplicitous and self-serving statements to the Employment Insurance Commission. For that reason, he ordered the employee to repay all employment insurance benefits he had received.