Arbitrator Teplitsky recently issued his award for faculty members at the University of Toronto. He awarded 4.5% over 2 years (in addition to regular progress through the ranks) and increased the overload rate to that received by the highest ranking Sessionals at the UofT. He also increased the professional expense allowance to $1500/year (and higher for tenure-stream faculty).
More interesting than the actual award is the reasoning behind it. The University of Toronto had attempted to argue that faculty should receive "zero and zero" over the two year agreement because the government had refused to fund any compensation increases. His argument is cogent - the government no longer has the ability to legislate wage freezes (because of BC Health) and has therefore not done so. However, an arbitrator is supposed to replicate collective bargaining and not act as an instrument of government policy.
In fact, Arbitrator Teplitsky observed that since public employees should not have to subsidize public works, it would be better for governments to raise taxes, than to expect public workers to take freezes while private sector workers enjoy wage increases.
However, UTFA's request for even higher wages in order to preserve UTFA's superior wages with respect to all other collective agreements in Ontario was rejected.
Arbitrator Teplitsky took the position, after reviewing 30 years of bargaining and multiple factors, that wage increases of 4.5% over two reflected similar settlements at other Ontario universities and that as an arbitrator he had to promulgate an award that reflects this fact.
Did he get it right?
If he had implemented the "zero and zero", what would that have meant for interest arbitration in Ontario?
If the government's position is that it won't fund salary increases, how does this differ from Mike Harris' freezing and cutting of transfer payments as a way out of provincial deficits?
Tuesday, November 16, 2010
Sick of management rights talk
The City of Greater Sudbury recently tried to extract a huge amount of health information from CUPE members claiming short-term sick leave (for a cold, for instance) relying on “management rights” to get this information. A recent decision by Arbitrator William Kaplan (Greater Sudbury (City) and CUPE Local 148, 102 CLAS 309) refused the Employer’s claim that this was a legitimate use of management rights and upheld the Union grievance.
On October 30, 2006, CUPE 148 (representing workers at Sudbury’s long-term care facility Pioneer Manor) was informed that facility management was implementing a new Sick Leave/Disability program as of 1 January 2007. The Union filed a grievance in December. The matter was finally heard at arbitration in July 2010 and a decision released in August.
The new system required employees on short-term sick leave to fill out an Attending Physician’s Statement in order to claim benefits. This form included an authorization for the Employer to get a complete copy of the employee’s entire medical file. The form also included far more information than necessary for the Employer to administer a short-term sick leave program. For instance, the form required the physician to indicate the pregnancy status of the employee, a DSM diagnosis (in other words a psychological assessment), any cardiac issues, an assessment of the employee’s mental competence, etc.
One consequence of the use of this form (besides the obvious intrusion in an employee’s privacy rights) was the increased cost to the employee. Because of the extensive information required by this form physicians were charging up to $104 for completing it. Under the collective agreement, employees bore the costs of the medical note. However, normal physician notes for a short-term illness are relatively cheap and fast. The Union asked the Employer to pay the cost of the physician notes in addition to asking that the new form be discontinued.
The Employer relied on the fact that this form was in use in every other bargaining unit in the City. The Employer felt that it was entitled to this information in order to administer its program
Arbitrator Kaplan completely disagreed. He relied on the dominant trend in arbitral jurisprudence that accords protection to employee privacy unless the Collective Agreement or legislation stipulates otherwise. As Kaplan observes, “short-term absences attract limited disclosure. Experience indicates that these short-term illnesses are often seasonal and usually resolve themselves. They do not normally involve the management of a disability with attendant accommodation obligations where considerable information will often need to be shared.”
The extensive information requested by the Employer on the APS (all medical files, complete history, diagnosis, etc.) rendered the entire form unusable. He directed the Employer to cease using the APS. He also reaffirmed the obligation of employees to pay for the sick note, noting that without the APS the cost was likely to return to the historical norm.
This case points out some of the limits of management rights. Management rights cannot, even in the absence of a collective agreement provision, override basic human rights to privacy and confidentiality.
What do you think?
Should an employer have the right to know pregnancy status? DSM diagnosis? complete medical records? STD status?
Does the amount of information an employer needs relate to the extent of accommodation required?
What about all the other employees in the City. They have, apparently, agreed to this form. Does this ruling help them at all?
On October 30, 2006, CUPE 148 (representing workers at Sudbury’s long-term care facility Pioneer Manor) was informed that facility management was implementing a new Sick Leave/Disability program as of 1 January 2007. The Union filed a grievance in December. The matter was finally heard at arbitration in July 2010 and a decision released in August.
The new system required employees on short-term sick leave to fill out an Attending Physician’s Statement in order to claim benefits. This form included an authorization for the Employer to get a complete copy of the employee’s entire medical file. The form also included far more information than necessary for the Employer to administer a short-term sick leave program. For instance, the form required the physician to indicate the pregnancy status of the employee, a DSM diagnosis (in other words a psychological assessment), any cardiac issues, an assessment of the employee’s mental competence, etc.
One consequence of the use of this form (besides the obvious intrusion in an employee’s privacy rights) was the increased cost to the employee. Because of the extensive information required by this form physicians were charging up to $104 for completing it. Under the collective agreement, employees bore the costs of the medical note. However, normal physician notes for a short-term illness are relatively cheap and fast. The Union asked the Employer to pay the cost of the physician notes in addition to asking that the new form be discontinued.
The Employer relied on the fact that this form was in use in every other bargaining unit in the City. The Employer felt that it was entitled to this information in order to administer its program
Arbitrator Kaplan completely disagreed. He relied on the dominant trend in arbitral jurisprudence that accords protection to employee privacy unless the Collective Agreement or legislation stipulates otherwise. As Kaplan observes, “short-term absences attract limited disclosure. Experience indicates that these short-term illnesses are often seasonal and usually resolve themselves. They do not normally involve the management of a disability with attendant accommodation obligations where considerable information will often need to be shared.”
The extensive information requested by the Employer on the APS (all medical files, complete history, diagnosis, etc.) rendered the entire form unusable. He directed the Employer to cease using the APS. He also reaffirmed the obligation of employees to pay for the sick note, noting that without the APS the cost was likely to return to the historical norm.
This case points out some of the limits of management rights. Management rights cannot, even in the absence of a collective agreement provision, override basic human rights to privacy and confidentiality.
What do you think?
Should an employer have the right to know pregnancy status? DSM diagnosis? complete medical records? STD status?
Does the amount of information an employer needs relate to the extent of accommodation required?
What about all the other employees in the City. They have, apparently, agreed to this form. Does this ruling help them at all?
Arbitrator imposes 2% wage increases in spite of govt "wage freeze"
Arbitrator Jesin's recent interest arbitration award between Extendicare and SEIU Local 1 is the first interest arbitration award in the broader public sector since the Government of Ontario announced that it was seeking a 2-year compensation restraint in the broader public sector.
There were multiple issues in dispute which had been unable to be resolved as a result of the Employer's unwillingness to bargain over wages. They claimed that the March budget statement (and subsequent statements from provincial officials) meant that there was no ability to agree to any collective agreement containing wage increases.
Arbitrator Jesin disagreed. He noted that there was "no legislation by the government requiring such a freeze" That is, of course, true. Some would argue that after BC Health, the government could not so legislate. Since the government's March statement indicated that collective agreements signed prior to March 2010 would be honoured including those with wage increases, then clearly some employees in the sector would be getting wage increases in this period. He concludes that "given that increases are being found for other nursing home employees and for some other health care employees I accept that there should be a wage increase in these agreements."
He awarded only 2% increases because the economic situation has been trending downward recently. Other unionized workers are accepting wage increases in the 2% range (down from about 3-4% earlier).
Did Arbitrator Jesin get it right? Or should he have listened to the government's position?
I think he got it right. If collective bargaining is constitutionally protected activity then the government has no right to deprive employees of the right to engage in it. Arbitrarily holding wages frozen removes a core element of collective bargaining. Since governments can't legislate, an interest arbitrator is supposed to impose a contract reflective of industry norms. Arbitrator Jesin did exactly that. Perhaps now all the other broader public sector employers and unions can go back to negotiating collective agreements instead of "consulting" with the Government.
There were multiple issues in dispute which had been unable to be resolved as a result of the Employer's unwillingness to bargain over wages. They claimed that the March budget statement (and subsequent statements from provincial officials) meant that there was no ability to agree to any collective agreement containing wage increases.
Arbitrator Jesin disagreed. He noted that there was "no legislation by the government requiring such a freeze" That is, of course, true. Some would argue that after BC Health, the government could not so legislate. Since the government's March statement indicated that collective agreements signed prior to March 2010 would be honoured including those with wage increases, then clearly some employees in the sector would be getting wage increases in this period. He concludes that "given that increases are being found for other nursing home employees and for some other health care employees I accept that there should be a wage increase in these agreements."
He awarded only 2% increases because the economic situation has been trending downward recently. Other unionized workers are accepting wage increases in the 2% range (down from about 3-4% earlier).
Did Arbitrator Jesin get it right? Or should he have listened to the government's position?
I think he got it right. If collective bargaining is constitutionally protected activity then the government has no right to deprive employees of the right to engage in it. Arbitrarily holding wages frozen removes a core element of collective bargaining. Since governments can't legislate, an interest arbitrator is supposed to impose a contract reflective of industry norms. Arbitrator Jesin did exactly that. Perhaps now all the other broader public sector employers and unions can go back to negotiating collective agreements instead of "consulting" with the Government.
BC Court of Appeal strips faculty collective agreement rights
The BC Court of Appeal has upheld the rights of University Senates to enact provisions contrary to collective agreements in a ruling issued yesterday.
The situation briefly is that the UBC Senate enacted a policy on student evaluation of university teachers. The UBC Faculty Association, which is a trade union under the BC Labour Code, challenged the policy as inconsistent with the Collective Agreement. I blogged about the arbitration case here.
The Court held that the appropriate standard of review was correctness(the highest standard). I think that is right. However, their conclusion on the substance I don't believe is correct. The Court upheld the arbitrator's view completely. In sum, the view was that the Senate possessed sole statutory authority over academic matters and that the Board had no statutory authority to bargain away that authority. This means that any provision of any bicamerally governed university (that would be all universities in Canada except UofT and OCAD I believe) that falls even loosely under the broad statutory grant to the Senate can be abrogated at will.
The only potential bright spot in the whole ruling can be found in this one line: "If an employee is unfairly affected by the application of the policy (as opposed to the content of the Policy), he/she can grieve and an arbitrator clearly has jurisdiction over such a grievance." I like this and I think I understand what the Court might mean. I think that it might mean that an individual who is affected by a Senate policy that violates a Collective Agreement provision can seek a remedy from a Board of Arbitration because the University Board has a statutory responsibility for human resources. However, the Court doesn't spend a lot of time on this point and it is not clear how this line conforms with the rest of the ruling.
I understand that the Faculty Association plans to take this to the Supreme Court. Should be interesting!
What do you think?
Did the Court get it right?
Does the peculiar governance structure of most universities give them special privileges in collective bargaining?
Does the BC Health case have any relevance here?
The situation briefly is that the UBC Senate enacted a policy on student evaluation of university teachers. The UBC Faculty Association, which is a trade union under the BC Labour Code, challenged the policy as inconsistent with the Collective Agreement. I blogged about the arbitration case here.
The Court held that the appropriate standard of review was correctness(the highest standard). I think that is right. However, their conclusion on the substance I don't believe is correct. The Court upheld the arbitrator's view completely. In sum, the view was that the Senate possessed sole statutory authority over academic matters and that the Board had no statutory authority to bargain away that authority. This means that any provision of any bicamerally governed university (that would be all universities in Canada except UofT and OCAD I believe) that falls even loosely under the broad statutory grant to the Senate can be abrogated at will.
The only potential bright spot in the whole ruling can be found in this one line: "If an employee is unfairly affected by the application of the policy (as opposed to the content of the Policy), he/she can grieve and an arbitrator clearly has jurisdiction over such a grievance." I like this and I think I understand what the Court might mean. I think that it might mean that an individual who is affected by a Senate policy that violates a Collective Agreement provision can seek a remedy from a Board of Arbitration because the University Board has a statutory responsibility for human resources. However, the Court doesn't spend a lot of time on this point and it is not clear how this line conforms with the rest of the ruling.
I understand that the Faculty Association plans to take this to the Supreme Court. Should be interesting!
What do you think?
Did the Court get it right?
Does the peculiar governance structure of most universities give them special privileges in collective bargaining?
Does the BC Health case have any relevance here?
Union members aren't kleenex; arbitrator awards over $500,000 to unjustly fired worker
When a fleet coordinator at the Greater Toronto Airport Authority was suspended and fired in 2004 for allegedly claiming sick leave fraudulently, she naturally filed a grievance. After 5 years of litigation, Arbitrator Owen Shime recently awarded her over $500,000 because of the lack of just cause and the high handed manner in which the Employer discharged the employee. In addition, he found that employers of unionized employees have a duty to act in good faith in carrying out management functions. (GTAA and PSAC Local 0004, 2010 CLB 1275). The high damage award flows from finding that that the employer breached the employee's trust and faith in the employer causing mental distress and further that depriving a unionized employee of the protections of a union contract can cause foreseeable mental distress.
At the time of her discharge the member was a 23-year employee of the GTAA with no prior record of discipline or absenteeism. She suffered a work-related injury in the Fall of 2003, took two days off work and was referred to a physiotherapist. However, as it turned out, she required arthroscopic surgery. She has the surgery 24 February 2004 and was given a note indicating that she would be off work for 4 weeks thereafter.
The grievor cohabited with a fellow GTAA employee who was also off sick at the time. This employee was under covert surveillance by the Employer. The Employer decided to also place the grievor under covert surveillance. On March 9 and 10, 2004 the grievor was observed running a few errands and seeming not to suffer any discomfort. The Employer felt that these tasks were inconsistent with the grievor’s medical restrictions. She was asked for further medical information and was requested to return to work sooner. Fearing being terminated (as her partner had been suspended on March 10 and fired on March 16), she obtained a note from her physiotherapist (which was rejected by the GTAA) and doctor and returned to work on March 17, one week earlier than her doctor had originally requested. Surveillance conducted on the grievor that day indicated that she was walking with a limp after work. That same day she was advised that there would be a meeting on March 19 with her union rep. The Employer concluded the grievor was dishonest in her claim for sick leave and therefore she was suspended. On 24 March 2004 she was terminated.
The manager’s testimony made it very clear that the manager simply disbelieved the grievor’s doctor. Her opinion was that “the GTAA sees doctors’ notes all the time...doctors write what the employees want.” Instead , the manager relied on her amateur assessment of the video surveillance. However, the grievor’s physiotherapist – who had never been contacted by the Employer in this process—had informed the Employer in April 2004 that: “Although a patient has been referred to treatment and recommended to stay off work, this does not in turn limit them from continuing with functional activities at home or in the community.” Both her surgeon and her physiotherapist testified that the video evidence was consistent with her injuries and her limitations.
Because of the surveillance and the refusal of the GTAA to believe her and her doctor and physiotherapist, the grievor was referred to a psychiatrist who diagnosed her with Post Traumatic Stress Disorder and with betrayal trauma. Here was a 23-year employee with a perfect record, surreptitiously “stalked” by her employer and then fired while legitimately off sick. It is no wonder she felt betrayed. Her PTSD originated from previous sexual and physical assaults. However, the re-emergence of her PTSD symptoms was entirely a result of her firing and the manner in which it had been done.
She was still suffering PTSD as of March 2007, meaning that her employer had caused her three years of psychological pain and suffering.
Normally grievors ask for their jobs back. One of the unique features of grievance arbitration is that arbitrators can order reinstatement. In this case, the grievor’s testimony was:
The Arbitrator found that the grievor’s testimony and that of her doctor and physiotherapist were compelling. He noted that on none of the video evidence does the grievor demonstrate activity inconsistent with her medical restrictions. He contrasted this sharply with the stereotypical case of the worker on sick leave found to be playing golf or engaged in other “frivolous” activity. He was particularly critical of the fact that GTAA management saw fit to judge for themselves the grievor’s medical condition solely on the basis of the video evidence.
The Arbitrator was concerned about the Employer’s rejection of the physiotherapist’s note (which allowed the grievor to return to work but also indicated that she would benefit from more time off). “Given the Grievor's exemplary attendance record and her known surgery, the GTAA's rejection of the physiotherapist's note was not warranted nor was it credible.”
Arbitrator Shime was scathing in his criticism of the GTAA’s failure to attempt to verify the grievor’s medical condition: “The Grievor has given the GTAA twenty three years of service; certainly the GT AA, in return, could have found a few minutes for a phone call. I am unable to accept the GTAA's evidence that it took too long. There was not a modicum of effort to obtain another opinion.”
Turning to the process of discipline itself, the Arbitrator correctly states the law:
The Arbitrator’s bottom line conclusion is worth reading:
One of the most important findings of Arbitrator Shime was that there is an “obligation on the employer not to conduct itself, without reasonable and proper cause, in a manner calculated and likely to destroy or seriously damage the relationship of trust and confidence between employer and employee."
As a result, Arbitrator Shime awarded the following: 1) the expunging of the grievor’s employment record of any reference to the suspension and discharge, (2) a letter of reference referring to her exemplary service in a form acceptable to the Union, (3) damages for mental distress and pain and suffering of $50,000, (4) damages for loss of wages from termination to the issuance of the award, (5) damages for loss of earnings from the award to the date at which she could retire, (6) credit in the company pension plan for service from time of termination until retirement, (7) punitive damages in the amount of $50,000. In all, this amounted to an award in excess of $500,000.
I think the Arbitrator got it right - it is not only employees who are held to standards of good faith and trust when dealing with employers. This is a two-way street. What do you think? Did he get it right? Or, has this opened the floodgates?
At the time of her discharge the member was a 23-year employee of the GTAA with no prior record of discipline or absenteeism. She suffered a work-related injury in the Fall of 2003, took two days off work and was referred to a physiotherapist. However, as it turned out, she required arthroscopic surgery. She has the surgery 24 February 2004 and was given a note indicating that she would be off work for 4 weeks thereafter.
The grievor cohabited with a fellow GTAA employee who was also off sick at the time. This employee was under covert surveillance by the Employer. The Employer decided to also place the grievor under covert surveillance. On March 9 and 10, 2004 the grievor was observed running a few errands and seeming not to suffer any discomfort. The Employer felt that these tasks were inconsistent with the grievor’s medical restrictions. She was asked for further medical information and was requested to return to work sooner. Fearing being terminated (as her partner had been suspended on March 10 and fired on March 16), she obtained a note from her physiotherapist (which was rejected by the GTAA) and doctor and returned to work on March 17, one week earlier than her doctor had originally requested. Surveillance conducted on the grievor that day indicated that she was walking with a limp after work. That same day she was advised that there would be a meeting on March 19 with her union rep. The Employer concluded the grievor was dishonest in her claim for sick leave and therefore she was suspended. On 24 March 2004 she was terminated.
The manager’s testimony made it very clear that the manager simply disbelieved the grievor’s doctor. Her opinion was that “the GTAA sees doctors’ notes all the time...doctors write what the employees want.” Instead , the manager relied on her amateur assessment of the video surveillance. However, the grievor’s physiotherapist – who had never been contacted by the Employer in this process—had informed the Employer in April 2004 that: “Although a patient has been referred to treatment and recommended to stay off work, this does not in turn limit them from continuing with functional activities at home or in the community.” Both her surgeon and her physiotherapist testified that the video evidence was consistent with her injuries and her limitations.
Because of the surveillance and the refusal of the GTAA to believe her and her doctor and physiotherapist, the grievor was referred to a psychiatrist who diagnosed her with Post Traumatic Stress Disorder and with betrayal trauma. Here was a 23-year employee with a perfect record, surreptitiously “stalked” by her employer and then fired while legitimately off sick. It is no wonder she felt betrayed. Her PTSD originated from previous sexual and physical assaults. However, the re-emergence of her PTSD symptoms was entirely a result of her firing and the manner in which it had been done.
She was still suffering PTSD as of March 2007, meaning that her employer had caused her three years of psychological pain and suffering.
Normally grievors ask for their jobs back. One of the unique features of grievance arbitration is that arbitrators can order reinstatement. In this case, the grievor’s testimony was:
that the GTAA took away her independence and dignity and that she has no respect for management of the GTAA. She admitted that she could not go back to a place where she had been happy and confident because of what had been done to her. Given her feelings, she does not want to return to the horrible place at the GTAA.
The Arbitrator found that the grievor’s testimony and that of her doctor and physiotherapist were compelling. He noted that on none of the video evidence does the grievor demonstrate activity inconsistent with her medical restrictions. He contrasted this sharply with the stereotypical case of the worker on sick leave found to be playing golf or engaged in other “frivolous” activity. He was particularly critical of the fact that GTAA management saw fit to judge for themselves the grievor’s medical condition solely on the basis of the video evidence.
They were not doctors and they ought not to have arrogated to themselves the medical knowledge which was necessary to assess the medical condition of the Grievor based on an examination of the tapes. They ought, at least, to have consulted a person with the relevant expertise such as a medical doctor and to have had that person assess the videotapes.
The Arbitrator was concerned about the Employer’s rejection of the physiotherapist’s note (which allowed the grievor to return to work but also indicated that she would benefit from more time off). “Given the Grievor's exemplary attendance record and her known surgery, the GTAA's rejection of the physiotherapist's note was not warranted nor was it credible.”
Arbitrator Shime was scathing in his criticism of the GTAA’s failure to attempt to verify the grievor’s medical condition: “The Grievor has given the GTAA twenty three years of service; certainly the GT AA, in return, could have found a few minutes for a phone call. I am unable to accept the GTAA's evidence that it took too long. There was not a modicum of effort to obtain another opinion.”
All in all, I conclude that the investigative meeting was superficial, that unwarranted conclusions were drawn, that the GTAA entered into the meeting with preconceived notions, and that the meeting, as Ms. Newman stated, was an interrogation and not a genuine or reasonable attempt to discover the truth about the Grievor's condition. I find that the GTAA’s inferences or conclusions about the meeting were not reasonable or credible.
Turning to the process of discipline itself, the Arbitrator correctly states the law:
There was a positive duty on the GTAA to consider her seniority and work record including her work performance. There was also a positive duty on the GTAA to consider why corrective discipline such as a warning or a lengthy suspension might not be salutary in these circumstances.
The Arbitrator’s bottom line conclusion is worth reading:
Employees are not like tissues to be used up and then thrown out at a whim into the bin of low level employment or unemployment. Employees, particularly those such as the Grievor, who have been long term local employees, are entitled to both a reasonable consideration of their seniority and work record and to a reasonable investigation of their conduct before being discharged and accused of dishonesty. There was not cause to discharge the Grievor, and since the GTAA's conduct in both its investigation and also in its ultimate determination was not only unreasonable but also in bad faith, the Grievor is entitled to an appropriate remedy including damages.
One of the most important findings of Arbitrator Shime was that there is an “obligation on the employer not to conduct itself, without reasonable and proper cause, in a manner calculated and likely to destroy or seriously damage the relationship of trust and confidence between employer and employee."
As a result, Arbitrator Shime awarded the following: 1) the expunging of the grievor’s employment record of any reference to the suspension and discharge, (2) a letter of reference referring to her exemplary service in a form acceptable to the Union, (3) damages for mental distress and pain and suffering of $50,000, (4) damages for loss of wages from termination to the issuance of the award, (5) damages for loss of earnings from the award to the date at which she could retire, (6) credit in the company pension plan for service from time of termination until retirement, (7) punitive damages in the amount of $50,000. In all, this amounted to an award in excess of $500,000.
I think the Arbitrator got it right - it is not only employees who are held to standards of good faith and trust when dealing with employers. This is a two-way street. What do you think? Did he get it right? Or, has this opened the floodgates?
Union representation rights upheld at Windsor
A recent decision by Arbitrator Ted Crljenica in the case of University of Windsor and the University of Windsor Faculty Association (100 CLAS 146) upheld the right of the Union to file a grievance in respect of the non-hiring of a temporary academic.
What do you think? Did he get it right?
Two grievances were filed at the University of Windsor concerning a temporary academic appointment. At Windsor, the faculty union has a collective agreement that incorporates some, but not all, of the Senate provisions governing appointments. For whatever reason, the parties to the Collective Agreement elected not to reference the appropriate bylaw of the Windsor Senate (Bylaw 20), nor to directly incorporate all of the provisions of Bylaw 20 in the body of the Agreement. One of the grievances concerned the failure of the University to comply with the provisions of Bylaw 20. A second grievance was filed because the University took the position that the faculty union had no right to represent the grievor in spite of the fact that the grievor was currently employed in another temporary position.
On the first question, the Arbitrator found that his jurisdiction was limited to the Collective Agreement and could not be expanded to include Bylaw 20. The union had attempted to suggest that the “just equitable” exercise of management rights clause could be read to bring in the whole of Bylaw 20. Unfortunately, the Windsor agreement’s management rights clause is unusual. It provided that management rights would be exercised in a “just and equitable manner consistent with the collective agreement.” Most such similar clauses provide for the exercise of management rights to be “in a just and equitable manner and consistent...” The difference a word makes! Partly because of this wording issue, the arbitrator held that he could not bring in the balance of Bylaw 20.
On the second question, the arbitrator made some obvious and important observations. First, he observed that the trade union’s “sole and exclusive bargaining” agency meant that the trade union could represent all employees. This is somewhat obvious; however, universities often want to pretend that a current “temporary” employee applying for another “temporary” job should be treated like an applicant off the street. Second, he held that the trade union itself had an interest in the integrity of the appointment process that was separate from the member’s interest in overturning the decision.
Frankly, I think the Arbitrator got it right all the way down the line. He was right that the parties did not have contractual language that would import the entirety of Bylaw 20. While unfortunate in this case, that is the kind of thing that can be remedied in collective bargaining. I think he was also right that current employees enjoy substantive rights that can be the subject of grievance even when we are talking hiring for a future temporary position. And I think he was right that unions have a stand-alone interest in the integrity of the hiring process.
An applicant who is in a temporary appointment is a member of the bargaining unit and the Association is his or her exclusive bargaining agent. The Association has an interest in the appointment process to the extent reflected in article 12.01. A bargaining unit member who applied for a new appointment has an interest in seeking to overturn an unfavourable decision. I was not provided with any authority or labour relations principle to support the proposition that a bargaining unit member can be deprived of his or her right to union representation, or that the Association cannot represent him or her. The University's motion regarding this issue is dismissed.
What do you think? Did he get it right?
Supreme Court rejects damage award for miners killed at Royal Oak
The Supreme Court of Canada today upheld the decision of the Northwest Territories Court of Appeal in the Royal Oak case. This tort case, brought by the widows of the miners killed after an criminal explosion at the mine during a bitter 1992 strike, centred on the question of who bore tort liability for the deaths of the miners. The widows had sued the territorial government, Pinkerton's, Royal Oak for failing to prevent the murders. The widows also sued the national union (CASAW, subsequently merged with CAW), union officials and members of the Local for inciting and failing to control the miner who set off the explosion.
The strike began in 1992 and, following rejection of a tentative agreement by the miners, rapidly became violent. The mine decided to operate with replacement workers guarded by Pinkerton's security. Striking miners engaged in acts of sabotage, including setting explosions. On September 18 one such explosion killed 9 miners. The territorial government then ordered the closing of the mine.
At trial, the judge assigned tort liability to all of the parties sued and awarded damages of $10.7 million. This was appealed and set aside by the Territorial Court of Appeal. The widows appeal to the Supreme Court of Canada to reinstate the trial judge's award.
The labour relations piece is really interesting. It was deeply troubling that a trial judge could find tort liability for actions not planned or executed by the trade union. There was no evidence led to indicate that the local or national union were involved in way in the planning or executing of the explosion which led to the miners' deaths.
The Court says it best here:
What do you think?
The strike began in 1992 and, following rejection of a tentative agreement by the miners, rapidly became violent. The mine decided to operate with replacement workers guarded by Pinkerton's security. Striking miners engaged in acts of sabotage, including setting explosions. On September 18 one such explosion killed 9 miners. The territorial government then ordered the closing of the mine.
At trial, the judge assigned tort liability to all of the parties sued and awarded damages of $10.7 million. This was appealed and set aside by the Territorial Court of Appeal. The widows appeal to the Supreme Court of Canada to reinstate the trial judge's award.
The labour relations piece is really interesting. It was deeply troubling that a trial judge could find tort liability for actions not planned or executed by the trade union. There was no evidence led to indicate that the local or national union were involved in way in the planning or executing of the explosion which led to the miners' deaths.
The Court says it best here:
CAW National cannot be found liable as a joint tortfeasor with W. Concerted action liability may be imposed where the alleged wrongdoers acted in furtherance of a common design — this means that all participants must act in furtherance of the wrong. Here, there is no basis in law or in fact for a finding that CAW National’s liability could be sustained on the basis of concerted action liability because it “incited and participated in W’s tort and contributed to the deaths”. The trial judge’s findings of fact do not meet the applicable test. There was no finding of any common design between W and CAW National to murder the miners and no finding that the murders were committed in direct furtherance of any other unlawful common design between W and the union.and here:
The trial judge’s findings of liability with respect to the claims against the national union, union officers and members cannot be sustained.This is a nice decision to read. I think the Court nailed this one exactly right. Trade unions have limited control over their members. Unfortunately, employers trying to operate with replacement workers in a highly charged atmosphere can create the space for this kind of action. Setting off explosions is clearly a criminal act and cannot be justified. However, amending the Labour Code to prohibit use of replacement workers would help prevent the creation of this kind of atmosphere.
What do you think?
Failure to accommodate child-care needs of dad is discriminatory
Arbitrator Norm Jesin in a recent ruling decided that a negotiated change to the shift structure at Power Stream was discriminatory on the grounds of family status because it interfered with a father's child care arrangements set out in his separation agreement with his estranged wife.
The grievors were four fathers employed by Power Stream (a power distribution authority in Vaughan, Ontario). These linemen were all represented by IBEW Local 636. Prior to the 2008 round of bargaining, the collective agreement permitted each employee to choose between 5 days of 8 hours each or 4 days of 10 hours each. Each grievor was in the minority of workers who had chosen the 5 day work week. Two of the grievors were married, one was divorced with teenage childen, one was separated with young children and had a child custody agreement with his estranged wife. In each case, the fathers played an important role in the lives of their children and had chosen the five-day shift for that reason.
In the 2008 round of collective bargaining, the Employer insisted that the Union choose one of the two shift structures for all employees. In the end, this was reluctably agreed to and incorporated in the renewal agreement. The new shift schedule (beginning at 6:30am and continuing to 5pm) began in September 2008.
Arbitrator Jesin identifies the following duties of a parent with respect to his or her children:
The substantial shift in family life documented by the other 3 men did not give rise to a finding of discrimination even though their children were found to have also suffered as a result of the change in shifts. In two cases, the ability of the men's spouses to care for the children was sufficient for the arbitrator to find that there was no discrimination. What does this say about gender equity in contemporary Ontario?
However, the children whose parents were separated are entitled to protection because the terms of the separation agreement were tailored to the old shift rules.
Some would say that this is too restrictive a reading of the human rights code protection.
Others would say that it is too broad.
Read the ruling yourself and tell me what you think.
What is clear is that employers and unions are going to need to consider family arrangements in negotiating collective agreements and dealing with individual accommodations of workers' needs. Otherwise, risk a grievance!
The grievors were four fathers employed by Power Stream (a power distribution authority in Vaughan, Ontario). These linemen were all represented by IBEW Local 636. Prior to the 2008 round of bargaining, the collective agreement permitted each employee to choose between 5 days of 8 hours each or 4 days of 10 hours each. Each grievor was in the minority of workers who had chosen the 5 day work week. Two of the grievors were married, one was divorced with teenage childen, one was separated with young children and had a child custody agreement with his estranged wife. In each case, the fathers played an important role in the lives of their children and had chosen the five-day shift for that reason.
In the 2008 round of collective bargaining, the Employer insisted that the Union choose one of the two shift structures for all employees. In the end, this was reluctably agreed to and incorporated in the renewal agreement. The new shift schedule (beginning at 6:30am and continuing to 5pm) began in September 2008.
Arbitrator Jesin identifies the following duties of a parent with respect to his or her children:
a parent has an obligation to maintain the health, safety and security of his/her children. A parent must ensure that children receive necessary medical attention, that they are safely transported to and from school and/or daycare, that they are provided with food, shelter and clothing. Parents also have an obligation to spend time with their children, to guide them, and to teach them skills. Parents provide for the enhancement of their children’s social and moral development and try to ensure that their children have a normal and happy childhood.However, most parents must work in order to discharge these duties. And so:
It is only natural that these obligations – the obligation to ensure a safe, healthy and happy child and the obligation to work will sometimes be difficult to reconcile. And parents may have to make difficult choices to reconcile their conflicting obligation.Arbitrator Jesin finds that with respect to the three men who are either still married or divorced with older children, there were no substantial intereferences in the discharge of parental duties enough to warrant a finding of discrimination. However, the fourth case involving the man separated from his spouse with young children, Arbitrator Jesin came to a different conclusion:
Mr. and Mrs. Baddely were able to reach an amicable custody sharing agreement that was negotiated within the constraints of the five eight hour shift schedule. This agreement was in the best interest of not only Mr. and Mrs. Baddely, but their children as well. Mr. and Mrs. Baddely had agreed first that Mr. Baddely would keep the matrimonial home. They had also agreed that they would alternate custody each week. In that way, the children would be able to spend half their time in the matrimonial home and would be able to attend their regular school.There you have it. Did Arbitrator Jesin make the right call?
The new schedule materially disrupted this carefully crafted arrangement.
The substantial shift in family life documented by the other 3 men did not give rise to a finding of discrimination even though their children were found to have also suffered as a result of the change in shifts. In two cases, the ability of the men's spouses to care for the children was sufficient for the arbitrator to find that there was no discrimination. What does this say about gender equity in contemporary Ontario?
However, the children whose parents were separated are entitled to protection because the terms of the separation agreement were tailored to the old shift rules.
Some would say that this is too restrictive a reading of the human rights code protection.
Others would say that it is too broad.
Read the ruling yourself and tell me what you think.
What is clear is that employers and unions are going to need to consider family arrangements in negotiating collective agreements and dealing with individual accommodations of workers' needs. Otherwise, risk a grievance!
Rand formula REQUIRED by the Charter!
In a recent decision of the Alberta Labour Relations Board, the Board held that the Labour Relations Code was underinclusive by failing to require Rand formula union security provisions. The failure to do so, according to the Board, violated section 2(d) of the Charter (freedom of association).
This decision follows on the seminal BC Health Services decision in 2007 which constitutionalized collective bargaining rights in Canada.
The dispute centred around the request by UFCW for a Rand formula (i.e., that all employees in the bargaining unit be required to remit dues to the trade union regardless of their membership status) in collective bargaining with Old Dutch foods. The Employer rejected the demand and forced the union on strike.
The decision of the Board in this matter is worth reading:
Could there be a "business justification" that the Board would accept? What kinds of evidence would need to be lead to prove such a justification?
In my opinion, it is unlikely that any such justification could be brought. The Board's view is clear:
There you have it. We are a long way from Lavigne, aren't we?
I imagine this is not the last we have heard on this case. Do you think the Board made the right decision? What about the argument that if there is a freedom to associate, there is a corresponding freedom not to associate?
This decision follows on the seminal BC Health Services decision in 2007 which constitutionalized collective bargaining rights in Canada.
The dispute centred around the request by UFCW for a Rand formula (i.e., that all employees in the bargaining unit be required to remit dues to the trade union regardless of their membership status) in collective bargaining with Old Dutch foods. The Employer rejected the demand and forced the union on strike.
The decision of the Board in this matter is worth reading:
In light of Health Services, the refusal by ODF to agree to a Rand formula is now considered by the Board to be a failure to bargain in good faith. Even if that were not so, its failure would, given the circumstances of its conduct, be a factor in evaluating its overall bargaining conduct. In that regard the quality of its discussion of union security is relevant to this analysis. Its justification for refusing the Rand formula was not self-evident and when it moved beyond a simple philosophical concern over employees having a freedom of choice, it said its objection was based on a belief some employees would resign if forced to pay union dues and also was concerned an obligation to pay dues might create difficulties in hiring new employees. The concern some employees might resign was eventually revealed to be confined to one or two who ODF chose not to identify and its concern over the recruitment of new employees was hypothetical that reflected a tight labour market that previously but no longer existed. There was no evidence ODF had difficulties in the management of its Winnipeg plant where the collective agreement contained a mandatory check off of union dues. Nor was there evidence of any other business justification ODF had for its position.
Could there be a "business justification" that the Board would accept? What kinds of evidence would need to be lead to prove such a justification?
In my opinion, it is unlikely that any such justification could be brought. The Board's view is clear:
Now that the Supreme Court has concluded that the protection of freedom of association afforded by s. 2(d) extends to the process of collective bargaining, and that the payment of union dues has been recognized as part of the freedom of association, the obvious conclusion is that the continued absence from the Code of a statutory Rand formula is a violation of s. 2(d) that can only be remedied by overnment action. It follows that the inability of the ODF workers to bargain collectively is linked to the absence from the Code of a statutory Rand formula. The Union has demonstrated to our satisfaction that this absence is solely attributable to government and is a violation of the fundamental right of these workers under s. 2(d) right to bargain collectively
There you have it. We are a long way from Lavigne, aren't we?
I imagine this is not the last we have heard on this case. Do you think the Board made the right decision? What about the argument that if there is a freedom to associate, there is a corresponding freedom not to associate?
Supreme Court upholds WalMart on narrow grounds
The Supreme Court in a much awaited ruling (Plourde v Wal-Mart Canada Corp.) upheld the closure of the Wal-Mart Jonquiere store on narrow procedural grounds. While the narrowness of the grounds will not help the workers who lost their jobs after unionizing the first Wal-Mart store in North America, the ruling does not sanction the closure of places of business in order to escape a certification.
The case turned on the narrow question of whether the reverse onus provisions of the Quebec Labour Code applied in the case of a closure of a business. The majority of the Court relied on a nearly 30-year old case from Quebec, City Buick, to hold that a permanent closure was "a good and sufficient" reason to lay off the workers and was therefore not subject to the reverse onus provisions.
The reverse onus provisions level the evidentiary playing field by forcing the Employer to demonstrate that its decision to close the business was not tainted by anti-union animus. In this case the Employer announced the closure on the same day that the Minister of Labour appointed an arbitrator to adjudicate a first contract.
The minoity opinion, authored by former Ontario Labour Relations Board Chair Abella, took issue with the Court's upholding of the decision in City Buick:
The decision means that in Quebec an employer's motivation is relevant in every situation except closure of a business. Do you think this is what the legislature had in mind? Or, does Quebec need to amend its laws to eliminate this absurdity?
In effect, the Court told the Union that it pled the wrong section (there is another section of the Code which does not provide for reverse onus). It did not find that there was no animus. Had the Union pled the other section of the Code and been able to prove animus, there still could have been a remedy.
This raises another set of questions. How can the trade union "prove" animus? There are unlikely to be trade union witnesses in the board room when the key decisions are being made. Isn't that way legislators brought in reverse onus provisions in the first place?
What do you think?
The case turned on the narrow question of whether the reverse onus provisions of the Quebec Labour Code applied in the case of a closure of a business. The majority of the Court relied on a nearly 30-year old case from Quebec, City Buick, to hold that a permanent closure was "a good and sufficient" reason to lay off the workers and was therefore not subject to the reverse onus provisions.
Under s. 12, a union or employees may claim anti-union conduct on the part of the employer. Such a proceeding would focus directly on the reason for the closure of the store not on the reason for the dismissal of employees at a store that no longer exists. Under s. 12 the motive of Wal-Mart to close the Jonquière store would be highly relevant. If the [Labour Board] were satisfied that the closure occurred for anti-union reasons, the [Labour Board] could, if the matter were properly before it, fashion a remedy of benefit to all the former employees.
The reverse onus provisions level the evidentiary playing field by forcing the Employer to demonstrate that its decision to close the business was not tainted by anti-union animus. In this case the Employer announced the closure on the same day that the Minister of Labour appointed an arbitrator to adjudicate a first contract.
The minoity opinion, authored by former Ontario Labour Relations Board Chair Abella, took issue with the Court's upholding of the decision in City Buick:
With great respect, it is my view that the conclusion in City Buick that a dismissal resulting from a genuine closing can never be scrutinized for anti‑union motives, is a rebuke to the prior jurisprudence, to the history of the legislation, and to the purpose of the legislative scheme
The decision means that in Quebec an employer's motivation is relevant in every situation except closure of a business. Do you think this is what the legislature had in mind? Or, does Quebec need to amend its laws to eliminate this absurdity?
In effect, the Court told the Union that it pled the wrong section (there is another section of the Code which does not provide for reverse onus). It did not find that there was no animus. Had the Union pled the other section of the Code and been able to prove animus, there still could have been a remedy.
This raises another set of questions. How can the trade union "prove" animus? There are unlikely to be trade union witnesses in the board room when the key decisions are being made. Isn't that way legislators brought in reverse onus provisions in the first place?
What do you think?
"Relative" equality - what does it mean?
Large numbers of Collective Agreements have a "relative equality" clause in the postings or promotions language. A recent decision out of Alberta upheld the hiring of a significantly junior employee who only scored less than 5% more than the senior 26 year employee.
The case (Canadian Blood Services and HSAA, 185 LAC (4th) 69) decided by a Board of Arbitration chaired by Les Wallace involved three internal candidates at Canadian Blood Services who had each applied for a position of Laboratory Assistant. The senior applicant, Ms Camat, had 26 years seniority and scored 75.5 out of 125 on the interview. The initially succesful applicant, Ms Wichinsky (13 years), scored the highest (84.5) but declined the job. The other top applicant, Ms Berube (2 years) scored 81.5.
The Collective Agreement obliged the Employer to hire the most senior candidate if the candidates were relatively equal in the opinion of the Employer.
Normally, a differential of less than 5% would fall into the range of relative equality. Arbitrator Wallace held that since the CA specifically refers to the opinion of the Employer, that opinion must be given weight by an Arbitrator. Interestingly, in spite of the fact that the hiring manager felt that Ms Berube and Ms Camat were relatively equal, the decision was nonetheless allowed to stand since the Employer (in the person of the HR rep) had clearly determined they were not relatively equal.
What do you think this tells us about the importance of the wording in an agreement?
Do you think the Union really meant to give that wide a latitude to Employer discretion when it was drafting the agreement?
The case (Canadian Blood Services and HSAA, 185 LAC (4th) 69) decided by a Board of Arbitration chaired by Les Wallace involved three internal candidates at Canadian Blood Services who had each applied for a position of Laboratory Assistant. The senior applicant, Ms Camat, had 26 years seniority and scored 75.5 out of 125 on the interview. The initially succesful applicant, Ms Wichinsky (13 years), scored the highest (84.5) but declined the job. The other top applicant, Ms Berube (2 years) scored 81.5.
The Collective Agreement obliged the Employer to hire the most senior candidate if the candidates were relatively equal in the opinion of the Employer.
Normally, a differential of less than 5% would fall into the range of relative equality. Arbitrator Wallace held that since the CA specifically refers to the opinion of the Employer, that opinion must be given weight by an Arbitrator. Interestingly, in spite of the fact that the hiring manager felt that Ms Berube and Ms Camat were relatively equal, the decision was nonetheless allowed to stand since the Employer (in the person of the HR rep) had clearly determined they were not relatively equal.
What do you think this tells us about the importance of the wording in an agreement?
Do you think the Union really meant to give that wide a latitude to Employer discretion when it was drafting the agreement?
Google and the end of privacy
Earlier this year, Arbitrator Carrier released an important decision (Lakehead University and LUFA (right to Privacy and Academic Freedom) 184 LAC 4th 338) undermining faculty privacy rights when the University contracted out its email service to Google. In November 2006, Lakehead University decided to get rid of its existing internal email system and move to gmail for all student, faculty and staff accounts. Because Google is headquartered in the United States and uses servers situate in the USA, Lakehead faculty members’ email messages became subject to the USA Patriot Act, the Protect America Act and the Foreign Intelligence Surveillance Act. The Union grieved this intrusion into contractual privacy rights but lost.
The Lakehead University Faculty Association collective agreement provided for the protection of both academic freedom and the privacy of personal and professional communications. The Collective Agreement further provided that each faculty member was entitled to both a computer and computer connection. The Union contended that this created a contractual obligation to provide email service conforming to the protection of privacy enshrined in the agreement.
The arbitrator agreed with the Employer that a “computer connection” only mandated the provision of a cable connection to the outside world and not necessarily an email account. The arbitrator also averred that the right to privacy contained in the agreement did not prevent the University from contracting out its email service even if that made electronic communications subject to US law and surveillance. Fundamental to the arbitrator’s decision in this regard was the reality that electronic communications are “as confidential as are postcards.”
What is troubling in this case is that the University has previously adopted an email policy with the participation and consent of the Faculty Association which was more stringent than the Google terms of use, yet the University was not held to its own policy in the determination of this grievance. In other words, the Faculty Association participated in good faith in the development of an email policy which was eventually adopted by Senate and which should have protected faculty members’ rights not to be subject to electronic surveillance except with consent of the courts. Nonetheless, Lakehead administration blithely ignored its own policy when executing the agreement with Google.
From my point of view, this raises real labour relations issues with respect to negotiating in good faith. How can the Faculty Association participate in the policy process of the University knowing that the Administration does not feel itself bound by its own policy? Does the fact that email is generally assumed to be "public" have an impact here?
The Lakehead University Faculty Association collective agreement provided for the protection of both academic freedom and the privacy of personal and professional communications. The Collective Agreement further provided that each faculty member was entitled to both a computer and computer connection. The Union contended that this created a contractual obligation to provide email service conforming to the protection of privacy enshrined in the agreement.
The arbitrator agreed with the Employer that a “computer connection” only mandated the provision of a cable connection to the outside world and not necessarily an email account. The arbitrator also averred that the right to privacy contained in the agreement did not prevent the University from contracting out its email service even if that made electronic communications subject to US law and surveillance. Fundamental to the arbitrator’s decision in this regard was the reality that electronic communications are “as confidential as are postcards.”
What is troubling in this case is that the University has previously adopted an email policy with the participation and consent of the Faculty Association which was more stringent than the Google terms of use, yet the University was not held to its own policy in the determination of this grievance. In other words, the Faculty Association participated in good faith in the development of an email policy which was eventually adopted by Senate and which should have protected faculty members’ rights not to be subject to electronic surveillance except with consent of the courts. Nonetheless, Lakehead administration blithely ignored its own policy when executing the agreement with Google.
From my point of view, this raises real labour relations issues with respect to negotiating in good faith. How can the Faculty Association participate in the policy process of the University knowing that the Administration does not feel itself bound by its own policy? Does the fact that email is generally assumed to be "public" have an impact here?
Temp employees - who is the Employer?
Two recent decisions of the Ontario Labour Relations Board addressed the situation of temporary staffing agencies and unionization. In one case, the Board found that the “true employer” was the business contracting with the temp agency. In the second, the Board found that the temp agency and the business with which it contracted were deemed a single employer for labour relations purposes. In both cases, the Labour Board looked behind the corporate veil at the actual relationship to allow workers to establish bargaining rights with respect to the entity that actually controlled their working lives.
The first case concerned an application by the CAW for a unit of drivers and pitchers at National Waste Services Inc. in Stoney Creek. The Stoney Creek yard was established in 2005 following National Waste’s winning of the residential trash contract in nearby Hamilton. At this yard, National Waste chose to engage a personnel agency, Erie Personnel Corporation, to provide labour. National Waste only employed six employees directly (supervisory personnel mostly), the balance of the workforce was provided by Erie.
Here the Board had to look at who the real or true employer was. Generally, the Ontario Labour Relations Board has tended to find that the client (in this case, National) is the true employer. Continuing this trend, the Board found that National Waste was the true employer of the drivers and pitchers. The employees were selected on the basis of criteria set by National, borderline hires were sent to National for approval, National issued discipline and could “blacklist”
employees it did not want. National also supervised the day-to-day work, National kept track of hours worked and supplied the list to Erie for payment, the general wages were set by National and National would approve wages above scale for certain employees and so on. One of the only factors in favour of Erie as the employer were the contracts between Erie and National (setting out the terms of the service contract) and between the employees and Erie (which stated that the employees were employees of Erie).
The Board had reference to the Pointe-Claire case which went all the way to the Supreme Court. In Pointe-Claire, the Court observed that “in a context of collective relations ... it is essential that temporary employees be able to bargain with the party that exercises the greatest control over all aspects of their work.” Thus, apparent contractual arrangements will be set aside in favour of the actual substance of the relationship. The Board also cited another important case, 533670 Ontario Ltd. (c.o.b. Best Personnel Services) to the effect that “the Board is more concerned with substance than with form; that is, the Board will not permit commercial form to obscure labour relations reality.”
This concern led the Board in another recent decision to find that the temp agency and the client were a single employer for the purposes of the Labour Relations Act. In the Fall of 2007, employees working for glass company PPG in Cambridge through Liberty Staffing
Services sought unionization through the United Food and Commercial Workers union. PPG manufactures glass for the auto industry at a number of plants throughout North America. The Cambridge plant was a “satellite” plant producing just-in-time ready-to-install glass parts for the auto industry to clients’ precise specifications. This work used to be done in auto assembly plants unionized by the CAW. However, recently, auto manufacturers have been out-sourcing this work on a just-in-time basis to manufacturers like PPG. Orders for specific pieces are received on a daily basis and shipped to assembly plants immediately, within hours of being ordered by the client.
In order to save money and overhead, PPG has used Liberty to supply its staffing needs at Cambridge since 1999. Liberty supplies 100% of the non-managerial workforce as well as several supervisors. PPG itself only employs 5 managerial employees in Cambridge. The Board discovered a number of things about this relationship. Apparently the wages (which are set by PPG) are so low as to make it difficult for Liberty to find sufficient workers for the plant. Also, Liberty and PPG routinely consulted about almost every aspect of the employment relationship – from day-to-day supervisory matters, through discipline, to handling of the certification application. The Board also found that employees assigned by Liberty to PPG generally
work there (and only there) for periods of months or years. In other words, in spite of the legal characterization of the relationship as temporary, it was not temporary in reality.
These decisions fall within the normal range of decisions of the OLRB. Do you think the recent changes to the ESA with respect to temporary workers will have any impact on future decisions of the OLRB?
The first case concerned an application by the CAW for a unit of drivers and pitchers at National Waste Services Inc. in Stoney Creek. The Stoney Creek yard was established in 2005 following National Waste’s winning of the residential trash contract in nearby Hamilton. At this yard, National Waste chose to engage a personnel agency, Erie Personnel Corporation, to provide labour. National Waste only employed six employees directly (supervisory personnel mostly), the balance of the workforce was provided by Erie.
Here the Board had to look at who the real or true employer was. Generally, the Ontario Labour Relations Board has tended to find that the client (in this case, National) is the true employer. Continuing this trend, the Board found that National Waste was the true employer of the drivers and pitchers. The employees were selected on the basis of criteria set by National, borderline hires were sent to National for approval, National issued discipline and could “blacklist”
employees it did not want. National also supervised the day-to-day work, National kept track of hours worked and supplied the list to Erie for payment, the general wages were set by National and National would approve wages above scale for certain employees and so on. One of the only factors in favour of Erie as the employer were the contracts between Erie and National (setting out the terms of the service contract) and between the employees and Erie (which stated that the employees were employees of Erie).
The Board had reference to the Pointe-Claire case which went all the way to the Supreme Court. In Pointe-Claire, the Court observed that “in a context of collective relations ... it is essential that temporary employees be able to bargain with the party that exercises the greatest control over all aspects of their work.” Thus, apparent contractual arrangements will be set aside in favour of the actual substance of the relationship. The Board also cited another important case, 533670 Ontario Ltd. (c.o.b. Best Personnel Services) to the effect that “the Board is more concerned with substance than with form; that is, the Board will not permit commercial form to obscure labour relations reality.”
This concern led the Board in another recent decision to find that the temp agency and the client were a single employer for the purposes of the Labour Relations Act. In the Fall of 2007, employees working for glass company PPG in Cambridge through Liberty Staffing
Services sought unionization through the United Food and Commercial Workers union. PPG manufactures glass for the auto industry at a number of plants throughout North America. The Cambridge plant was a “satellite” plant producing just-in-time ready-to-install glass parts for the auto industry to clients’ precise specifications. This work used to be done in auto assembly plants unionized by the CAW. However, recently, auto manufacturers have been out-sourcing this work on a just-in-time basis to manufacturers like PPG. Orders for specific pieces are received on a daily basis and shipped to assembly plants immediately, within hours of being ordered by the client.
In order to save money and overhead, PPG has used Liberty to supply its staffing needs at Cambridge since 1999. Liberty supplies 100% of the non-managerial workforce as well as several supervisors. PPG itself only employs 5 managerial employees in Cambridge. The Board discovered a number of things about this relationship. Apparently the wages (which are set by PPG) are so low as to make it difficult for Liberty to find sufficient workers for the plant. Also, Liberty and PPG routinely consulted about almost every aspect of the employment relationship – from day-to-day supervisory matters, through discipline, to handling of the certification application. The Board also found that employees assigned by Liberty to PPG generally
work there (and only there) for periods of months or years. In other words, in spite of the legal characterization of the relationship as temporary, it was not temporary in reality.
These decisions fall within the normal range of decisions of the OLRB. Do you think the recent changes to the ESA with respect to temporary workers will have any impact on future decisions of the OLRB?
Faculty bargaining rights at risk?
A decision on a policy grievance released last year by BC Arbitrator David McPhillips puts at risk provisions in Faculty/Instructor Collective Agreements dealing with evaluation, workload, tenure and promotion.
The policy grievance was brought by the UBC Faculty Association subsequent to the UBC Vancouver Senate’s adoption of a Policy on Student Evaluation of Teaching. The University’s position, upheld by the arbitrator, was that the Collective Agreement was only binding on the Board of Governors and not the Senate. Therefore, Senate policy could override a signed Collective Agreement. Almost all Canadian universities have bicameral governance enshrined in their governing statutes. Hence, this ruling will likely be influential across Canada. The Faculty Association is appealing the ruling to the BC Court of Appeal this Fall.
The University Act provides that the University consists of “a chancellor, a convocation, a board, an Okanagan senate, a Vancouver senate, a council and faculties.” The UBC Board of Governors is the sole part of the University corporation which has the authority to enter into Collective Agreements and appoint members of the teaching staff. The Senate has general authority over academic matters and is statutorily barred from being a party to a Collective Agreement.
In May 2007, a new Policy on Student Evaluation of Teaching was adopted by the UBC Senate. This policy was introduced without consultation with the Faculty Association . The Policy ran afoul of certain provisions in the Collective Agreement that protected faculty rights in evaluation and ensured that consultation would occur prior to any such new policy.
The University’s position was that the Senate had the sole statutory authority over the “quality of academic performance” at UBC. Further, the University asserted that the Board could not enter into a contract in an area of exclusive Senate responsibility and the Senate could not enter into any agreement whatsoever.
The Faculty Association’s position was that the Collective Agreement is with the University of British Columbia, a body corporate with multiple component parts. Hence, any Senate policy that conflicted with the Collective Agreement (or adopted in contravention of the CA) could not prevail. Moreover, the Collective Agreement is executed by the President of the University on behalf of the University as a whole.
The concern of the Faculty Association is clear. Evaluations of teaching form part of the review for tenure and promotion. Protecting that process is a core concern of any faculty association.
Unfortunately, the Arbitrator upheld the University’s position and concluded that any Senate policy affecting academic matters would override any Collective Agreement provision to the contrary. Speaking on behalf of university faculty, Brenda Austin-Smith, President of the University of Manitoba Faculty Association, observed: “If the arbitrator’s position is upheld, it is possible that university Board of Governors across the country could sign off on Collective Agreements with provisions that their Senates could then overrule.”
The outcome of the appeal this October will be watched by faculty associations and universities across the country.
Should we be concerned about the labour relations consequences of the pending ruling?
The policy grievance was brought by the UBC Faculty Association subsequent to the UBC Vancouver Senate’s adoption of a Policy on Student Evaluation of Teaching. The University’s position, upheld by the arbitrator, was that the Collective Agreement was only binding on the Board of Governors and not the Senate. Therefore, Senate policy could override a signed Collective Agreement. Almost all Canadian universities have bicameral governance enshrined in their governing statutes. Hence, this ruling will likely be influential across Canada. The Faculty Association is appealing the ruling to the BC Court of Appeal this Fall.
The University Act provides that the University consists of “a chancellor, a convocation, a board, an Okanagan senate, a Vancouver senate, a council and faculties.” The UBC Board of Governors is the sole part of the University corporation which has the authority to enter into Collective Agreements and appoint members of the teaching staff. The Senate has general authority over academic matters and is statutorily barred from being a party to a Collective Agreement.
In May 2007, a new Policy on Student Evaluation of Teaching was adopted by the UBC Senate. This policy was introduced without consultation with the Faculty Association . The Policy ran afoul of certain provisions in the Collective Agreement that protected faculty rights in evaluation and ensured that consultation would occur prior to any such new policy.
The University’s position was that the Senate had the sole statutory authority over the “quality of academic performance” at UBC. Further, the University asserted that the Board could not enter into a contract in an area of exclusive Senate responsibility and the Senate could not enter into any agreement whatsoever.
The Faculty Association’s position was that the Collective Agreement is with the University of British Columbia, a body corporate with multiple component parts. Hence, any Senate policy that conflicted with the Collective Agreement (or adopted in contravention of the CA) could not prevail. Moreover, the Collective Agreement is executed by the President of the University on behalf of the University as a whole.
The concern of the Faculty Association is clear. Evaluations of teaching form part of the review for tenure and promotion. Protecting that process is a core concern of any faculty association.
Unfortunately, the Arbitrator upheld the University’s position and concluded that any Senate policy affecting academic matters would override any Collective Agreement provision to the contrary. Speaking on behalf of university faculty, Brenda Austin-Smith, President of the University of Manitoba Faculty Association, observed: “If the arbitrator’s position is upheld, it is possible that university Board of Governors across the country could sign off on Collective Agreements with provisions that their Senates could then overrule.”
The outcome of the appeal this October will be watched by faculty associations and universities across the country.
Should we be concerned about the labour relations consequences of the pending ruling?
Balancing interests - where to draw the line?
One of the most important new areas of labour relations is the increasing protection of an employee’s right to work in an atmosphere free of harassment and intimidation.
What happens, though, if those rights conflict with other important workplace rights and duties?
A recent decision of the Nova Scotia Supreme Court (Canada Post vs CUPW and Arbitrator Outhouse 2008 NSSC 300) sheds some new light on the balance between the Employer’s obligation to maintain a workplace free of violence and harassment and the Union’s right to represent members in the way it sees fit.
The decision, a judicial review of Arbitrator Outhouse’s 2007 award, looked at an unusual case that originated in an incident at the Canada Post worksite in Moncton in December 2005. There had been several complaints filed against a supervisor, Mr Sevigny, by women at Canada Post. Although Mr Sevigny had been exonerated after an internal investigation, he nonetheless took about 9 months off, returning to work in the fall of 2005. The Union was not convinced that Mr Sevigny was innocent and a full-time grievance officer, Mr Buckland, confronted Mr Sevigny in the Moncton plant before both supervisors and employees. According to the arbitrator he engaged in a “planned and deliberate...prolonged and abusive tirade” against Mr Sevigny. He did not engage in any physical violence.
Canada Post subsequently banned Mr Buckland from all company facilities indefinitely and demanded medical clearance for emotional and anger control issues for him to return to his position. The Union grieved this matter as discipline and as interference in the Union’s rights as sole bargaining agent. One of the pillars of free collective bargaining is that workers and their unions choose their own representatives. By banning a full-time Union Rep from all premises indefinitely, the Employer caused “real and significant” interference in this right according to the arbitrator.
But, the arbitrator’s award disagreed with the Union’s characterization of the punishment as disciplinary. He held that the action was taken in a good faith attempt to protect the rights of other Canada Post employees to a “safe and harassment free work environment.” Nonetheless, he found that the interference with the Union’s rights to administer its affairs and represent its members was problematic. He reduced the ban to 18 months for all facilities except Moncton where a 3-year ban was implemented. Significantly, he found that the grievor posed no threat to other employees. Because of this, he deleted the requirement for the grievor to have a medical certificate for return to work. The Court’s ruling on the judicial review upheld the arbitrator’s award as reasonable and awarded costs to the Union.
This was a difficult case involving the balancing of very different but important rights. While all employees have a right to a harassment-free workplace, that right cannot be used by management to silence and permanently exclude a Union grievance officer. The arbitrator acknowledged the importance of the harassment issue by upholding a ban of up to 3 years. That was a significant signal to the Union that there are some limits on the behaviour of its officials.
However, by upholding the fundamental premise that the Union has the right to control its own internal structures and represent employees in the way it chooses, the arbitrator has upheld a fundamental component of free collective bargaining.
What do you think? Did the Court/arbitrator do the right thing?
What happens, though, if those rights conflict with other important workplace rights and duties?
A recent decision of the Nova Scotia Supreme Court (Canada Post vs CUPW and Arbitrator Outhouse 2008 NSSC 300) sheds some new light on the balance between the Employer’s obligation to maintain a workplace free of violence and harassment and the Union’s right to represent members in the way it sees fit.
The decision, a judicial review of Arbitrator Outhouse’s 2007 award, looked at an unusual case that originated in an incident at the Canada Post worksite in Moncton in December 2005. There had been several complaints filed against a supervisor, Mr Sevigny, by women at Canada Post. Although Mr Sevigny had been exonerated after an internal investigation, he nonetheless took about 9 months off, returning to work in the fall of 2005. The Union was not convinced that Mr Sevigny was innocent and a full-time grievance officer, Mr Buckland, confronted Mr Sevigny in the Moncton plant before both supervisors and employees. According to the arbitrator he engaged in a “planned and deliberate...prolonged and abusive tirade” against Mr Sevigny. He did not engage in any physical violence.
Canada Post subsequently banned Mr Buckland from all company facilities indefinitely and demanded medical clearance for emotional and anger control issues for him to return to his position. The Union grieved this matter as discipline and as interference in the Union’s rights as sole bargaining agent. One of the pillars of free collective bargaining is that workers and their unions choose their own representatives. By banning a full-time Union Rep from all premises indefinitely, the Employer caused “real and significant” interference in this right according to the arbitrator.
But, the arbitrator’s award disagreed with the Union’s characterization of the punishment as disciplinary. He held that the action was taken in a good faith attempt to protect the rights of other Canada Post employees to a “safe and harassment free work environment.” Nonetheless, he found that the interference with the Union’s rights to administer its affairs and represent its members was problematic. He reduced the ban to 18 months for all facilities except Moncton where a 3-year ban was implemented. Significantly, he found that the grievor posed no threat to other employees. Because of this, he deleted the requirement for the grievor to have a medical certificate for return to work. The Court’s ruling on the judicial review upheld the arbitrator’s award as reasonable and awarded costs to the Union.
This was a difficult case involving the balancing of very different but important rights. While all employees have a right to a harassment-free workplace, that right cannot be used by management to silence and permanently exclude a Union grievance officer. The arbitrator acknowledged the importance of the harassment issue by upholding a ban of up to 3 years. That was a significant signal to the Union that there are some limits on the behaviour of its officials.
However, by upholding the fundamental premise that the Union has the right to control its own internal structures and represent employees in the way it chooses, the arbitrator has upheld a fundamental component of free collective bargaining.
What do you think? Did the Court/arbitrator do the right thing?
Welcome to Mikael's Worklaw page
Hello and welcome!
This blog is written by Mikael Swayze. Mikael is an Adjunct Faculty member at the University of Toronto's Centre for Industrial Relations and Human Resources and is also a Staff Representative with the Canadian Union of Public Employees. This blog is intended both as a resource for my students and as a discussion board for the general community. Please join in the discussion!
Mikael Swayze
This blog is written by Mikael Swayze. Mikael is an Adjunct Faculty member at the University of Toronto's Centre for Industrial Relations and Human Resources and is also a Staff Representative with the Canadian Union of Public Employees. This blog is intended both as a resource for my students and as a discussion board for the general community. Please join in the discussion!
Mikael Swayze
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