Black Burke Mayor - Labour Law and Employment Lawyers, Vancouver, British Columbia, Canada

Representative cases argued by lawyers from Black Burke Mayor:

British Columbia Nurses’ Union and Canadian Office and Professional Employees Union, Local 378, BCLRB Letter Decision December 7, 2016.

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.

City of Vancouver (Fire and Rescue Services) and Vancouver Firefighters' Union, Local 18, (HUSAR Overtime Grievance - Calgary Floods 2013)
2016 CanLII 20561 (Hall)

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.

City of Vancouver, Fire and Rescue Services -and- Vancouver Fire Fighters’ Union, Local 18 (HUSAR Overtime Grievance Calgary Floods 2013) (Section 86 – Case No. 68067/15L) August 29, 2016 unreported (Hall).

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 Services Society (carrying on business as Pacific Blue Cross), MSA Business Services Ltd. and British Columbia Life and Casualty Company -and- Canadian Union of Public Employees, Local 1816, (Medical Services Association Employees) -and- PBC Health Benefits Society operating as D.A. Townley -and- Canadian Office and Professional Employees Union, Local 378 BCLRB No. B129/2016

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.

University of Victoria –and- University of Victoria Faculty Association (Valeo Grievance), (Diebolt) July 25, 2016 unreported

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.

Translink Security Management Ltd -and- Canadian Office and Professional Employees Union, Local 378, BCLRB No. B2/2014

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.

Insurance Corporation of British Columbia and Canadian Office and Professional Employees Union, Local 378 (February 27, 2014) (unreported)

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, [2012] 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.

Insurance Corporation of British Columbia v Canadian Office and Professional Employees' Union, Local 378, BCLRB No. B179/2012 (Matacheskie)

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.

Insurance Corporation of British Columbia v Canadian Office and Professional Employees' Union, Local 378, 2012 CanLII 48971 (Taylor)

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.

University of British Columbia and Faculty Association of the University of British Columbia (Dr. Steven Lund Grievance), unreported, January 18, 2012 (Hall)

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.

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 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.

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.

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