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British Columbia Labour Relations Board

1996 Annual Report

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CBRITISH OLUMBIA

Ministry of Labour Honourable John Cashore, Minister

British Colrnnbia Cataloguing in Publication Data

British Colwnbia. Industrial Relations Council. Annual report. -- 1987 -

Continues: Labour Relations Board of British Colwnbia. Annual report of the Labour Relations Board of British Colwnbia for the year ". ISSN 0319-0404.

ISSN 0838-0899 ~ Annual report - British Columbia. Industrial Relations Council

1. British Columbia. Industrial Relations Council -Periodicals. 2. Arbitration, Industrial - British Colrnnbia - Periodicals. 3. Labor disputes - British Colwnbia - Periodicals.

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LABOUR RELATIONS BOARD BRITISH COLUMBIA

The Honourable John Cashore Minister of Labour Parliament Buildings Victoria, B.C. V8V 1X4

Dear Mr. Minister:

Re:' AnnualReport

March 1, 1997

I am pleased to forward the Annual Report of the Labour Relations Board for the year ended December 31, 1996. This Report has been prepCired for your review pursuant to Section 157(2) of the Labour Relations Code.

KOldle Enc!.

Yours truly,

LABOUR RELATIONS BOARD

SUITE 900 - 360 WEST GEORGIA STREET, VANCOUVER, BC V6B 6B2 TelEPHONE: (604) 660-1300 FACSIMILE: (604) 660-1892

TABLE OF CONTENTS

LETTER OF TRANSMITTAL ...................................................................................................................................... iii

CHAIR'S MESSAGE ................................................................. :........................................................................................ vii

ORGANIZATIONAL CHART .................................................................................................................................... viii

I. THE BOARD .............................................................................................................................................................. 1

A. General Overview ............................................................................................................................... 3

B. Office of the Chair ............................................................................................................................... 3

C. Registry ........................................................................................................................................................ 4

D. Adjudication Division ....................................................................................................................... 6

E. Mediation Division .............................................................................................................................. 7

F. Administration ......................................................................................................................................... 9

G. Library .......................................................................................................................................................... 9

II. BOARD MEMBERS AND MEDIATORS ............................................................................................... 11

III. HEALTH SECTOR LABOUR RELATIONS REGULATION ................................................... 35

Iv. ALTERNATE DISPUTE RESOLUTION ................................................................................................. 43

V. HIGHLIGHTS OF BOARD DECISIONS ...................................... :........................................................ 47

VI. JUDICIAL REVIEW .............................................. : .............................................................................................. : 69

VII. STATISTICAL TABLES ................ c...................................................................................................................... 77

APPENDIX OF LEGISLATIVE REFERENCE TABLES

A. Statutory History of the Labour Relations Code .............................................................. 100

. B. Statutes Referencing the Labour Relations Code .............................................................. 102

C. Rules and Regulations under the Labour Relations Code ......................................... 103

v

LABOUR RELATIONS BOARD - 1996 ANNUAL REpORT·

Chair's Message I was greatly honored to have been appointed Chair of the

Labour Relations Board. My predecessor, Stan Lanyon, set an exemplary standard in leading the Board through a challenging period of establishing a new Board and administering a new Labour Relations Code. From my vantage point as a Vice Chair during Stan's tenure, it was clear that in addition to the impressive ability and dedication he brought to the job, Stan's success also depended on the meaningful and widespread support from both the broad labour relations cmnmtmity outside the Board and the Vice Chairs, Members and staff within the Board. I know that the continuation of such support is vital to ·the future of the Board. I also know that this broad based support will exist only if we continue to build on the principles of fairness, consistency, practicality and inclusiveness that Stan developed. It is from this pel~ spective that I turn first, to a brief look at the key areas of development in 1996 and then to some comments about the outlook for 1997.

During 1996 the ability of the Board to maintain its level of service was challenged by serious financial linlitations. Despite these cI1allenges we made significant progress in three key areas: policy (summarized elsewhere in this report), the increased use of ADR (alternative/appr9priate dispute resolution) techniques, and an expanded role for mediation services (beyond crisis collective bargaining intervention). On this latter note, the Mediation Division, in addition to expansion of the Relationship by Objectives program, introduced a short program for parties newly involved in a collective bargaining relationship. Information on this service is now provided at the time of initial certification and we are hopeful that the program will be used extensively in the future

In looking to the coming year I see a continuation of the basic policy approach established in recent years with its focus on the two primary considerations of access to collective bargaining and the stability of collective bargaining structures. We also want to develop the potential contained in our Rules to speed up the Board's procedures and provide faster results. We are confident that the increased use of ADR will help provide expeditious and pragmatic resolutions to the issues the community brings to the Board. In particular, we will explore the option of greater use of brief written decisions aud oral decisions where appropriate. In addition, we are working on alternative approaches for dealing with duty of fair representation applications in an effort to reduce the· frustrating delays which have cI1aracterized this area of the Board's responsibilities.

Finally, we are exploring how to most effectively use the services of Board members. Our Vice Chairs are tUlanimous in the view that many matters before the Board are dealt with more satisfactorily when we are able to constitute a panel including members. I agree. Their practical experience adds immeasurably to our efforts to resolve problems short of formal adjudication and, when adjudicative decisions are required, is of great value in formulating decisions.

I am confident that we can meet the challenges 1997will provide. The labour relations community has shown an admirable ability to adjust to the substantial and rapid social and economic pressures which have been changing the face of labollr relations in British Columbia. TIle Board has been able to adapt its policy and practices to keep abreast of these changes. In the coming year we will continue to rely on the commlmity's adaptive strength and to further develop our own strengths. With your continued support we will successfully meet the challenges ahead.

vii

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SpccWJ Investigating Officers

WJ'o.;

Labour Relations Board

Organizational Chart November 1996

Medintion Officers '

Associate Ch.:rir (Mediation) al'Id

Chief Administrative 0-. B. FoJry

DaectorofB~g lnformation

Supervisor,. Hunmn Resources and Administration

I. The Board

LABOUR RELATIONS BOARD - 1996 ANNUAL REPORT 3

I. The Board A. GENERAL OVERVIEW

The Labour Relations Code (the "Code") establishes the Labour Relations Board. The statute grants the Board exclusive jurisdiction to ~ear and determine applications and complamts under the Code and to make orders under the Code that it deems appropriate.

The Code governs all aspects of collective bargaining amongst the provincially-regulated employers and employees to whom the Code applies. This includes the acquisition of coll~ctive bargaining rights, the pr?cess of. bargau:ing, the settlement and regulation of dIsputes m both the public and private sectors, and the regulation of the representatio~ ?f persons ?y their bargaining agents. In addItion to admll:istering and enforcing the Code, the Boar~ IS charged with responsibility in labour relations matters under several other statutes - see Table B in the Appendix to this Report.

In carrying out its mandate, the Board must at all times have regard to the purposes and objects of the Code. These are set out in Section 2 (1):

2. (1) The following are the purposes of this Code:

(a) to encourage the practice and procedure of collective bargaining between employers and trade unions as the freely chosen representatives of employees;

(b) to encourage cooperative participation between employers and trade unions in resolving workplace issues, adapting to changes in the economy, developing work force skills and promoting workplace productivity;

(c) to minimize the effects of labour disputes on persons who are not involved in the dispute;

(d) to promote conditions favourable to the orderly, constructive and expeditious settlement of disputes between employers and trade unions;

(e) to ensure that the public interest is protected during labour disputes;

(f) to encourage the use of mediation as a dispute resolution mechanism. .

:rn order to accomplish this expansive mandate, the Code establishes the Board's administrative structure. Section 115 (3) of the Code provides that the Board shaH consist of a Chair, Vice Chairs, and as many other members, equal in number representative of employers and employees'respectively, as shall be considered necessary and appointed by the Lieutenant Governor in Council. The Chair is the head of the Board. Section 116 of the Code requires that there be two divisions of the Board - the Mediation Division and the Adjudication Division. The Chair designates one of the Vice. Chairs t.o act as Registrar, one to act as ASSOCIate Chair of the Mediation Division and one to act as Associate Chair of the Adjudication Division. The Chair, along with the Associate Chair (Adjudication), establishes panels to proceed with applications or complaints under the Code. Panels may be composed of the Chair, Vice Chair(s), and members in accordance with Section 117 (4) of the Code.

B. OFFICE OF THE CHAIR As head of the Board, the Chair has the ulti

mate responsibility to oversee the administration of the Board and the Code. The Associate Chairs of Mediation and Adjudication and the Registrar report directly to the Chair. The Ch?ir may sit as a panel, either with or without VIce Chairs and/or other members. The Chair presides at all proceedings of the Board and on aH panels of which the Chair is a member.

4 LABOUR RELATIONS BOARD - 1996 ANNuAL REPORT

c. REGISTRY Every application received by the Board,

except those relating to mediation, is processed through the Registrar's office. Administration and progress of each non-mediation case is overseen by the Registry until the matter is finally. disposed of. Four administrative assistants, each dealing with a geographic area of the Province, are responsible for initiation of appli-cations and the conduct of files. .

Processing of all non-mediation applications through the Registry enables the Board to utilize computerized case monitoring / management to achieve effective and' speedy processing of cases. Significant improvements to the Board's computer system are currently in progress.

The Registry processes applications on either an expedited or non-expedited basis. Legislated time frames, combined with established Board policies and procedures, result in approximately 60 percent of applications receiving expedited processing. Part 5 applications can require adjudication within 24 hours. Certain unfair labour practice complaints must be adjudicated within three days. Others such as certification and decertification applications are normally processed within approximately one week of receipt.

On certification and decertification applications, administrative assistants are responsible for completing all necessary procedures before files are forwarded to Adjudication for a hearing. 'This includes written notification to parties, initiation of investigations by Industrial Relations Officers and requests for written submissions. Accordingly, administrative staff must be familiar with legal principles and Board case law and policies.

Informal dispute resolution is an important partof the Board's operations and is used extensively during the processing of applications and complaints. Under the direction of the Deputy Regish'ar, cases requiring immediate informal dispute resolution are assigned to Special Investigating Officers (SIOs). The vast majority of their case load involves expedited matters such as unfair labour practice complaints, Part 5 applications, essential services and certification applications.

Assistance by SIOs through the informal process can be obtained by the parties or the adjudicator at any stage of proceedings, including case management meetings and after formal hearings have commenced.

These informal settlement discussions are on a "without prejudice" basis. That is to say, a party cannot subsequently raise what was said in such discussions in any formal proceeding.

1996 Applications and Complaints by Type of Applicant By Employer(s)

ByUnion(s) 60%

15%

Based on Applications Filed

By Employee(s) 14%

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LABOUR RELATIONS BOARD - 1996 ANNuAL REPORT 5

However, settlement agreements reached on issues during the informal proceedings are binding on the parties and will be enforced by the Board.

The informal process achieves avery. high success rate. As shown in Table 11 of the statistical tables, approximately 60 percent of unfair labour practice complaints and Part 5 complaints referred to officers are settled.

This informal dispute resolution process helps the Board and the parties to make effective uses of resources and personnel, and substantially reduces the time needed to conclude cases, thus reducing expenditures. In addition, by fostering negotiated agreements between the parties, the process furthers the purposes of the Code by minimizing, where possible, decisions imposed by a third party.

Similar valuable services are provided throughout the Province by Industrial Relations Officers of the Employment Standards' Branch of the Minishy of Labour. For example, every application for certification or decertification requires a report by an Industrial Relations Officer. Such reports are now public, with only names and numbers remaining confidential to the Board.

Both SIOs and Industrial Relations Officers also provide considerable assistance through written reports which may involve fact finding, narrowing the issues to be adjudicated, and interviewing individual employees and employers on a wide variety of issues.

In addition to administering the Registry, the Registrar, as a Vice Chair of the Board, may chair or sit as a member of an adjudication panel and, as a sole panel member, may dispose of certain applications where summary disposition is appropriate. This leads to the speedy disposition of many types of applications.

In accordance with Section 122 (3) of the Code, the Board appointed its first Information Officer, effective February 1, 1994. His responsibilities to date have encompassed two main areas: handling incoming inquiry calls, and preparing written material for the public and the labour relations community.

The Information Officer deals with approximately 40 calls per day, from employers, unions, individual employees and media representatives.

The first publication completed by the Information Officer was a Guide to the Union Certification Process .. This plain language guide is

Certification Decisions Number of Applications

600

500 III Granted El Dismissed

400

300

200

100

o 1987 1988 1989 1990 1991 1992 1993 1994 1995 1996

Year

"'1

6 LABOUR RBLATIONS BOARD - 1996 ANNuAL REPORT

sent to employers along with the Notice of Certification Application, to clarify their rights and responsibilities under the Code. The Guide is also available in Chinese and Punjabi transla-. tions.

The Information Officer has also prepared information sheets to assist Industrial Relations Officers in dealing with some certificationrelated issues.

The major assignment for the Information Officer was to develop a Practice Manual. The Manual was completed and became available through the Queen's Printer on a subscription basis in April of 1995. The Manual is, to the extent possible, in plain English and provides a comprehensive guide to Board policies and procedures and to current jurisprudence regarding the C9de. There were more than 500 copies in use at the end of 1996. The first update was circulated to subscribers in the summer of 1996.

D. ADJUDICATION DIVISION The Adjudication Division is responsible for

hearing matters which arise under the Code. In practice, the Division also attempts wherever possible to resolve a broad range of issues without formal adjudication This broad range of issues includes applications for the acquisition and termination of bargaining rights; unfair labour practice complaints; duty of fairrepresentation complaints by individual employees; common and successor employer applications; reviews of arbitration awards; applications for reconsideration of Board decisions; and complaints respecting strikes, lockouts, picketing and other conduct regulated by Part 5 of the Code, including the replacement worker provision.

Applications Assigned to Adjudication Division

Applications Adjudicated

Applications Outstanding at Year End

A major portion of the Division's workload has for several years now been the adjudication of expedited applications (including certifications, unfair labour practice complaints and Part 5 applications). During 1996, expedited applications comprised over 68 percent of cases received in the Board's major adjudication areas.

Proclamation of the new Code in .1993 saw a substantial increase in the number of' applications received by the Board. A comparison for recent calendar years of cases assigned for adjudication and adjudicated is set out in the accompanying table.

Acorresponding increase has occurred in the number of decisions published by the Adjudication Division. During each of the calendar years 1990 to 1992, the Industrial Relations Council issued between 240 and 250 formal decisions. A total of 470 decisions were published by the Board in 1993; this figure grew to 510 decisions in 1994, fell slightly to 463 in 1995, and dropped to 402'in 1996. However, a substantial number of applications received last year resulted in essential service designation orders and not decisions.

The Board felt the effects of Government cutbacks in 1996 through a budget reduction and the non-renewal of two Vice Chair positions. At the end of the year, there were 11 full time Vice Chair positions. There were also 39 part-time members representing either employers or employees and. available to be assigned to panels.

Legal services to the Adjudication Division are provided by a staff of four full-time lawyers and one part-time lawyer. One of the full-time lawyers serves a coordinating role. The lawyers

1991 1992 1993 1994 1995 1996

1232 1374 1687 1660 1561 1498

1262 1185 1667 1612 1624 1414

138 262 267 315 235 306


provide a wide range of support to the Board, including legal research functions, attending hearings, maintaining precedents and other resources and representing the Board's interests in judicial review proceedings before the courts.

E. MEDIATION DIVISION Under the direction of the Associate Chair

(Mediation), the staff of nine mediators draw upon their varied management and trade union backgrounds to facilitate dispute resolution in the establishment or renewal of collective agree

. ments. In addition to this traditional mediation service, the Division promotes initiatives designed to move away from a reactive adversarial model of labour relations to a proactive and positive relationship model. This shift in philosophy has resulted in the introduction of a variety of preventative mediation services. Emphasis is placed on improving ongoing rela-

. tionships resulting in enhanced harmony and cooperation in the workplace.

The Mediation Division also collects and disseminates information on collective bargaining settlements throughout the Province. The Division surveys the compensation details, including both wages and benefits; of new or renewed collective agreements. The resulting information is then entered into the Division's computer program which, using its own costing methodology, calculates the cost of the terms and conditions .. That information is distributed to employers and unions who often use the statistics in their own collective bargaining.

Collective Bargaining Mediation . The primary work performed by the Division

is the provisiQn of mediation assistance to employers and trade unions in the establishment 01' renewal of their collective agreements. The mediator attempts to create an enVironment conducive to effective communication and problem solving. Issues are clarified and alternatives are discussed in attempts to facilitate compromise between the parties' respective positions.

The majority of mediator appointments are made pursuant to Section 74 of the Code, and involve the renewal of existing collective agree-

ments. A lesser number of first collective agreement mediation appointments .are made under Section 55 of the Code. In 1996, mediators were appointed to 233 new cases under Section 74 and an additional 35 cases under Section 55. Mediators were also involved in a further 65 cases in which the appointments were made in 1995 but mediation activity continued into 1996.

In addition, the mediators were involved in essential services mediation surrounding the Master Health Care Agreements during April and May; 1996. .

Labour Management Consultation Committees

Section 53 of the Code requires employers and unions to promote the cooperative resolution of workplace issues. Mediators are available to assist the parties to meet these obligations by helping them in the establishment of joint consultation committees or in rejuvenating existing committees. Mediators work with -the parties to arrive at a common understanding of the committee's mandate and the defined terms of reference for its operation. Training is a key element in this process as the mediators must ensure that the parties are equipped to recognize the value of workplace cooperation and have the skills/tools necessary for an effective joint committee structure.

Occasionally, the state of the relationship between the parties has deteriorated to the point that the mediators may be required to take a more hands-on role; in these cases, the mediators will act as facilitators in the joint consultation meetings until the parties develop the ability to deal with each other without the need for third party involvement.

Relationship by Objectives Program The Relationship by Objectives program is a

service designed to assist employers and unions in addressing major difficulties in their ongoing relationship, with the objective of creating a more positive and creative workplace climate.

Where an employer and a union consider that an RBO program may be the appropriate means to assist them in improving their relationship, a joint request for assistance can be made to the

8 LABOUR RELATIONS BOARD - 1996 ANNUAL REPORT

Mediation Division. Exploratory meetings are then held to determine if the parties are committed to the process and to determine whether the RBO process would lead to the desired result. During the course of these exploratOlY meetings, the mediators may determine that an RBO is appropriate or may suggest other means for the parties to address their relationship difficulties.

The formal RBO process generally involves a two-day working session away from the workplace. The parties identify the obstacles which impair their relationship and develop a better understanding of the problems faced by each . other. Once specific problems are identified and discussed, the parties develop concrete plans to address and overcome these problems. The result is a commitment to shar~d objectives in the relationship and the means by which these objectives may be achieved. .

Following the RBO session, the mediators ·issue a written action. plan detailing the steps to be taken to achieve the agreed upon goals, associated time frames for their completion as well as identification of specific representatives of the employer and the union who are responsible for ensuring that the steps are completed in the time frames established.

The progress of the parties in achieving their goals is monitored by the mediators in followup meetings. In these meetings, the mediators will assist the parties in revising and updating the action plan to ensure its appropriate followthrough.

The Mediation Division conducted 12 RBOs in 1996 with the participants reporting a positive change in the relationship between the parties following the sessions. The degree of improvement in the parties' relationship has varied.from RBO to RBO.

Grievance Mediation Grievance mediation is a forum for the

employer and the union to discuss their respective positions on matters in contention, explain the reasons for their actions or decisions, and hear the other side's point of view. The process has considerable appeal to both unions and management seeking alternatives prior to hav-

ing grievances heard in a traditional arbitration setting. Mediators are available for grievance mediation assistance upon the written request of both the employer and the union.

Collective Bargaining Information System

The Mediation Division gathers a11d publishes information on collective bargaining and related labour relations matters. Upon the expiry of a collective agreement, the employer is contacted and requested to complete a reporting form concerning the compensation details of the new agreement. The information contained in these documents, verified against the collective agreement itself, forms the information base for the system.

All the information collected is entered into the Division's computer system and run through the Division's costing model. At present, the system contains information on over 8,900 new or renewal agreements which have been received since the system began in 1990.

The Division's costing model is based on total compensation measurement, costing both wage and benefit increases. The system is based on end rate costing and matches changes to the contract year in which the changes occur. Costing information is available for each year of each collective agreement currently in the system.

The computer system, known as the "Collective Bargaining Information system", is available to all interested parties on a fee for service basis. This means that all users can have remote access to the system. Furthel~ users can do customized searches of the data based on a combination of such factors as industry, industrial sector, type of work performed, geographic location and ·length of agreement. Interested parties can contact the Division for more information on the system and free demonstrations.

The Division also publishes its "Collective Bargaining Information Monthly Summary" magazine. Available on a subscription basis, the monthly publication contains information on settlements submitted that month and settlement trends over the last year on a private/ public sector and industrial sector basis. The


publication also _contains labour market information compiled by Statistics Canada, work stoppage information on a monthly and yearto-date basis, lists of certifications and variances granted by the Board and a listing of arbitration awards received by the Collective Agreement Arbitration Bureau.

F. ADMINISTRATION Information Systems

The principal computer applications running in-house are in the following areas: case management, word processing, office automation and end user computing, statistical collection and distribution, library management and computer aided research. In addition, the in-house computer system is connected to the British Columbia Systems Corporation data network to provide interchange of. electronic mail with other public sector organizations and provide interactive access to other Government information systems.

In 1996, the Board completed a two year project which saw the replacement of the Board's existing hardware and software systems. The highlights of the migration were the installation of a new server and desktop Windows based computers and the redevelopment of the Board's two main proprietary programs, the Case Management System and the Bargaining Information System. The new system allows the Board and its staff to better meet its needs.

Human Resou;ces and Administration

The Human Resources and Administration group is responsible for handling all human resources/personnel matters, including payroll and benefit administration and provision of receptionist services for the Board's operations; processing of the Board's revenues -and expenditures in accordance with Government policy and/ or legislation; and- overseeing the maintenance of the Board's offices, including telephones, office equipment and office security.

In 1996, the group, along with a steering committee representing all branches of the Board, was responsible for the relocation of the Board

to a new location. The planning for the project began in early 1996 and ended with the Board's move to its new premises at 360 West Georgia Street, Vancouver, in mid December. -

OHice and Technical Support All Board departments -are ably assisted in

the performance of their duties by various office and technical support staff. These include technical support persons, word processors, secretaries, file clerks, mail clerks, clerical support and administrative support personnel. The office and technical support personnel are vital to the efficient operation of the Board. The Board constantly seeks to maximize the talents of this group through in-service and crosstraining initiatives undertaken jointly with the Board's Staff Association.

G. LIBRARY The Labour Relations Board library is a mod

ern facility dedicated to serving the research and information needs of labour relations practitioners of the Province of B.C. It is very well equipped to address the needs of employer and union representatives, legal counsel, academics, students, and the general public. Physical facilities, the range of library materials, and staffing levels have been developed to ensure that this broad interest group receives prompt and efficient service in its search for answers in all aspects of labour and employment law.

Physical facilities available for public use include: ample reference and work space at counters and tables; open book stacks housing the materials; photocopy machine and microfiche reader-printer; computers and printers for accessing LRB databases, the library collection, and remote sites; and an extensive "on-Iine"library index. The holdings, totaling more that 5,000 volumes and 250 current subscriptions, include a core collection of legal materials as well as specialty labour and employment materials. The collection's strength is in its Canadian holdings, which are comprehensive, but foreign jurisdictions are also well represented. Many of the items are unique in British Columbia. As well, there is a complete microfiche set (from 1974) of B.C. arbitration awards.


On January 1, 1996, the Board:s library became the sole depository for B.C. collective agreements. The Board is requesting that parties send copies of the collective agreements in electronic format, where possible. Plans are in place

. to mount the electronic agreements on a-shared network of computers, with the long term goal of providing on-line public access to the agreements. As of December 31, 1996, the library has on file 6,332 collective agreements.

During the period January to December 1996 the usage of the libraty services was 14 percent by in-house personnel and 86 percent by the public. Public use of the library continues to rise

as more of the community becomes aware of the services, resources, and facilities available to it. For example, in addition to day-to-day services (in person or by phone), library staff provide orientation tours for individuals and groups, and, by arrangement, extensive daylong research work-shops for students in specialized labour studies courses. In the period January to December 1996, library. staff, comprising a professional librarian, one technician, and one collective agreement clerk, handled approximately 4,300 information queries and welcomed around 4,100 patrons to the Board's library.

II. Board Members and Mediators


II. Board Members and Mediators As of December 31, 1996 the Board consisted of the following members:

KEITH OLEKSIUK, Chair

Keith Oleksiuk obtained a B.A. from York University in 1971. He worked at York University until 1976, followed by employment with the Labour Council of Metropolitan Toronto. Keith then obtained an LL.B. in 1983 from Osgoode Hall Law School. Beginning in 1983, he was with the legal department in the Canadian National Office of the United Steelworkers of America, in Toronto.

He appeared before tribunals in various jurisdictions in Canada including Courts, Labour Relations Boards and arbitrators. From 1990 until his appointment as a Vice Chair in 1992, Mr. Oleksiuk was based in Vancouver providing services to the Steelworkers for Western Canada and the Territories. He was appointed as Chair of the Board in November 1996.

JOHN B. HALL, Associate Chair (Adjudication)

John Hall obtained his Bachelor of Laws degree from the University of British Columbia in 1980. He then articled and became an associate with the Vancouver firm of Alexander, Holburn, Beaudin & Lang where his professional practice was restricted to labour and employment law. Mr. Hall served as a Vice Chair of the Labour Relations Board from 1985 to 1987, and was

responsible for adjudicating a broad range of applications arising under the Labour Code'. He subsequently returned to his former firm where he became a partner in 1988. Mr. Hall continued his labour and employment law practice, with an increasing portion of his work being appointments as a neutral in unjust dismissal adjudications and labour arbitrations. In 1992 he was appointed Associate Chair (Mediation) and was re-appointed in 1997.


BRIAN FOLEY, Associate Chair (Mediation) and Chief Administrative Officer

Brian Foley was a Vice Chair and Registrar at the Labour Relations Board from 1981 to 1984, He served as Vice-President of Human Resources, Engineering & Telecommunications for B.C. Rail from 1984 to 1992. Mr. Foley's previous experience includes over ten years as a full-time union representative with the Public Service Alliance of Canada, and five years as Executive

Director of the Public Employers of B.C. He is a graduate of St. Patrick's College and Carleton University in Ottawa. Mr. Foley was appointed Associate Chair (Mediation) in 1992 and was reappointed in 1997.

MARGARET ARTHUR, Registrar

Margaret Arthur was appointed for a five-year term in 1992. She previously Served as an Employment Standards Officer with the Ministry of Labour and Consumer Services. Between 1973 and 1989 she held several positions with the B.C. Government Employees' Union; was a member of the Executive Council of the B.c. Federation of Labour; and also served as assistant to the President of the National Union of Provincial Government Employees in Ottawa.

HANS BROWN, Vice Chair

Hans Brown attended Carleton University in Ottawa and the University of Calgary. He is a graduate of the University of Calgary. Ml: Brown has served as a representative for the B.C. Government Employees' Union and as a representative and Director of the Hospital Employees' Union for 14 years.

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MARK J. BROWN, Vice Chair

Mark Brown graduated from Ryerson in Toronto in 1977 with a Bachelor of Business Management Degree. He joined the Canadian Red Cross as an Administrator of one of its centres in Toronto. In 1981 he joined Versa Services Ltd. as its Indush'ial Relations Manager responsible for collective bargaining and labour relations for Canada. From 1985 to 1995 he was employed by the Health Employers Association of B.c., and one of its predecessor associations, As the Director of Consulting Services, he was· responsible for collective

bargaining, third party hearings and resource management for the community care sector. In 1995 he briefly held a similar position for the Community Social Services Employers Association before joining the Board on FebrualY 1, 1996.

EMILY BURKE, Vice Chair

Emily Burke graduated from Dalliousie Law School in 1981. After articles and practice with Lawson, Lundell, Lawson & McIntosh, Ms. Burke served as a staff lawyer with the former Labour Relations Board from 1984 to 1986. During that time, she co-ordinated and edited the Canadian Labour Relations Board Reports. Ms. Burke then practised labour law with the firm of Alexander, Holburn, Beaudin and Lang. This involved work primarily for

employers iri various sectors including forestry, health care, construction, municipalities and manufacturing. Ms. Burke has also been a lecturer and author on labour relations, contributing regularly to publications for the Continuing Legal Education Society of B.C. Ms. Burke was appointed as a Vice Chair in 1992.

JOAN GORDON, Vice Chair

Joan Gordon graduated from the University of British.Columbia with a Bachelor of Laws Degree in 1983. She articled at the law firm of Rankin & Company where she became a parmer in 1991. From 1984 onwards, Ms. Gordon practised primarily labour and administrative law acting for trade unions and professional organizations. Her practice also included acting as legal counsel in professional discipline, human rights and workers' compensation matters, Ms. Gordon was appointed Vice Chair in 1992 and resigned as

Vice Chair effective June 30, 1996; howevel, she continued. to serve on a part-time basis until September 30, 1996.

I 1._--'-


PAUL JOHNSTON, Vice Chair

Paul Johnston is a journeyperson carpenter by trade and came to the Board in 1996 after eight years as a full-time union official. During this period he acted as a staff representative for the College Institute Educators' Association, Legal and Defence Co-ordinator for the B.C. Provincial Council of Carpenters and Business Agent for the Northwest District Council of Carpenters. Prior to his time as a union official, Mr. Johnston worked chiefly in construction on B.C.'s north coast with stints as an instructor at Northwest Community Col

lege, and organizer and researcher on a project for the Canadian Association of Smelter and Allied Workers in Kitimat. Mr. Johnston has published several articles, papers and studies including Frontier Labour, a history of organized labour in north-western B.c. He has a B.A. in history from Glendon College, York University.

BARBARA JUNKER, Vice Chair

Barbara Junker graduated from the University of British Columbia in 1977 with a Bachelor of Commerce Degree. After graduation she worked at Vancouver Hospital and subsequently at Shaughnessy Hospital. In 1983, she joined the accredited bargaining agent for health care employers and was involved in consulting and managing health labour relations in B.C. Directly before her appoinhnent to the Board, Ms. Junker was responsible for advising on and implementing plans to address strategic issues in health care, as well as

planning and research on health labour relations and collective bargaining issues. Ms. Junker was appointed as a Vice Chair in 1994.

RICHARD LONGPRE, Vice Chair

Richard Longpre graduated from the University of British Columbia in 1976 with a Bachelor of Commerce Degree, majoring. in industrial relations. He joined Noranda Mines Limited where over the next four years he negotiated collective agreements and co-ordinated labour relations policy amongst the Noranda Group of companies in Ontario, the Prairies and British Columbia. In 1981, Mr. Longpre -joined the Mediation Services Branch of the Ministry of

. . Labour as a mediatOl: After three years with the Branch, he set up an indepen-dent labour arbitration and mediation practice. In June 1985, he was appOinted Vice Chair of the Labour Relations Board of B.C. and has subsequently held the positions of Vice Chair with the Industrial Relations Council and Vice Chair wi th the current Board.

Mr· Longpre resigned as a Vice Chair effective May 31, 1996; however, he continued to serve on a part-time basis until September 30, 1996.

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BRIGID LUMHOLST-SMITH, Vice Chair

Brigid Lumholst-Smith was a Member of the Board and its predecessor, the Industrial Relations Council, from 1990 until her appointment as Vice Chair in 1995. She was previously Industrial Relations Manager for Kelly Douglas and Company Limited and was Acting Vice-President, Human Resources, at the

time of her resignation from the company in December 1989. She then served as a consultant in labour relations and acted as a Trustee on several jointly funded pension plans.

BRENT MULLIN, Vice Chair

Brent Mullin's education includes a B.A. from the University of Victoria, an M.A. from Queen's University at Kingston, Ontario, and 1m LL.B. from the University of British Columbia. In 1982, he articled with the law firm of Russell· & DuMoulin. Prior to his appointment as a Vice Chair, he practised as a

partner in that firm's Employment and Labour Department. His principal areas of practice were in labour relations, employment law, and human rights matters. He appeared before the Courts, the Labour Relations Board, the Industrial Relations Council, the B.C. Human Rights Council, and arbitrators, as well as conducting collective bargaining. Mr. Mullin was appointed as a Vice Chair in 1992.

LAURA PARKINSON, Vice Chair

Laura Parkinson received her LL.B. from the University of British Columbia in 1983 and her LL.M. in Labour Law and Constitutional Law from Queen's University in 1986. Ms. Parkinson served as a Staff Lawyer with the Labour

. Relations Board in 1986 and 1987. She then returned to the law firm of Baigent, Jackson, Blair where she had previously practised, and reinained with that firm and its successor, VictOlY Square Law Office, until her appointment as a Vice Chair on August 1, 1995.

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ROBERT PEKELES, Vice Chair

Robert Pekeles obtained his LL.B. from the University of Toronto in 1983. After articling with the law firm Swinton & Company he was called to the Bar in 1984. He served as a staff lawyer with the Labour Relations Board from 1984 to early 1986. Subsequently, he practised labour law with Rankin & Company where he acted for trade unions in various sectors including construction;

. mining, trucking, office and municipaL From 1989 until his appointment to the Labour Relations Board as a Vice Chair in 1994, he was legal counsel for the International Union of Operating Engineers, Local 115.

VLADIMIR (WALTER) PYLYPCHUK, Vice Chair

Mr. Pylypchuk received his law degree from the University of Western Ontario and was called to the Bar of Ontario in 1978 and the Bar of British Columbia in 1991. From 1979 he was in private practice for three years before joining the Federal Department of Justice for two years during which he was seconded to Canada Post Corporation. From 1983 to 1989 Mr. Pylypchuk practised as in-house counsel for Canada Post. He served as a Vice Chair of the

Industrial Relations Council from 1989 to 1992. After his term with the Council he joined Swinton and Company where he represented employers, associations and trade unions, until his appointment as a Vice Chair of the Labour Relations Board on August 1, 1995.

KATE YOUNG, Vice Cllair

Kate Young came to the Board in May 1992 with 14 years experience ir labour relations and civil litigation. She was called to the Bar in 1978 afte: graduating from the University of British Columbia with a B.A. (1973) and at LL.B. (1977). After articling with Rankin & Company, Ms. Young practisec with the firm Laxton, Pidgeon, Schroeder for three years before becoming, sole practitioner in 1981. Ms. Young was appointed as a Vice Chair in 1992

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LABOUR RELATIONS BOARD -1996'ANNUAL REPORT 19

CARMELA ALLEVATO, Employee Representative

Carmela Allevato is in-house counsel for the Canadian Union of Public Employees. She has served as Chief Administrative Officer of the Hospital Employees' Union for six years. She has extensive experience in advocacy and negotiations.

JOANNE ARNOLD, Employer Represmtntive

Joanne Arnold has worked in the human resource/labour relations field for over 20 years, with the majority of those years being spent in the health care industry. Prior to assuming her current position of Senior Vice President with

, the Health Employers Association of British Columbia, Ms. Arnold worked as the Executive Director of the Continuing Care Employee Relations Association, and held several positions in the human' resources field in both the

manufacturing and retail industries. Ms. Arnold is also an employer representative on the Board of the Healthcare Labour Adjustment Agency, an organization focused at reducing the impact of downsizing in health care through the co-operative efforts of both employers and unions.

PAULA BODDIE, Employer Represmtnt/ve

Paula Boddie has worked in the human resources/labour relations field for in over 15 years. She has held senior m~nagement positions in the federal and

fter provincial sectors, most recently as Vice President of Human Resources at B.C. an Transit. Ms. Boddie held a similar position at the Vancouver Port Corporation

,ed, and at the Vancouver Stock Exchange. Ms. Boddie has extensive experience in g a labour relations, human resources, and with employment equity and human rights matters and 192. legislation. Currently, Ms. Boddie is a practising consultant in the broad human resources field.

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NEIL BRADBURY, Employee Representative

Neil Bradbury is a National Rep~esentative for the Canadian Union of Public Employees, and is the chief spokesperson/head negotiator for B.C. Lower Mainland municipal negotiations. Mr. Bradbury has been a member of the Board of Directors of the Medical Services Association since 1985, serving as Vice Chairman since 1989 as well as Chairman in 1993 and 1994. He is a past member of the Workers'. Compensation Boards of Review and has held posi

tions on executives of COPE Local 498, COPE's Fraser Valley District Council, and the CUPE B.C. Executive Board. He has instructed courses for the Canadian Labour Congress, the B.C. Federation of Labour and CUPE's six-level program. He regularly represents employees and locals before

.. tribunals.

VERN CARTER, EmplO1jer Representative

Vern Carter is President of Interior Forest Labour Relations Association. He is responsible for the Association's overall operations, and acts as chid spokesperson in conh'act negotiations between Southern Interior forest companies and IWA-Canada. Prior to this role, he was Manager of Labour Relations Services for the Health Labour Relations Association of B.C. He has over

20 years human resources experience in the private and public sectors with extensive experience in labour relations, collective bargaining, mediation and arbitration.

RAJ CHOUHAN, Employee Representative

Raj Chouhan has 16 years of diversified experience in labour relations and administration. Since 1986 Mr. Chouhan has been working with. the Hospital Employees' Union. Currently he is working as co-ordinator responsible for servicing and staff development with the Hospital Employees' Union. He has held various positions including advisor to the Workers' Compensation Board Sub-Committee which was set up to draft health and safety regulations for the

agricultural industry, is a founding member of the B.C. Organization to Fight Racism, and President of the Canadian Farmworkers' Union.

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LABOUR RELATIONS BoARD ...:..- 1996 ANNuAL REPORT 21

DAVID COX, Employer Representative

David Cox has worked in the field of employee/labour relations in both the private and public sectors over the past 20 years. He has held a number of senior positions which have included responsibility for general human resources, strategic planning, safety and labour relatiol1s. Currently he holds the position of Director, Corporate Labour Relations and Safety with B.C. Rail

Ltd. He is directly responsible for all corporate labour relations and occupational health and safety initiatives.

ROGER CROWTHER, Employee Representative

Roger Crowther has 28 years of diversified experience as a Union Representative in British Columbia, 20 years as a full-time representative. He is currently National Representative for the Canadian Auto Workers' Union spe- .' cializing in first collective agreements. He is a former Regional Vice-President of CAIMAW. Mr. Crowther is an executive member of fue Vancouver and District Labour Council and a Trustee of the Unions' Health'and Welfare Plan.

MARIE DECAIRE, Employee Representative

Marie Decaire is the Secretary-Treasurer of the Hotel/ Restaurant & Culinary Employees and Bartenders Union Local 40, where she has been a member for 20 years and a full-time Representative since 1982. Ms. Decaire sits as a member of the B.C. Federation of Labour Executive Council and fue B.C. Pavilion Corporation Board of Directors. She also serves as a Trustee on

various Health Care and Pension funds. Ms. Decaire's experience includes grievance arbitration, trade union education and training and contract negotiation. '

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CAROL GIBSON, Employer Representative

Carol Jean Gibson has worked in the field of employee and labour relations, in both the public and private sectors, with the Hudson's Bay Company, the Open Leaming Agency and, for the last eight years, as Vice President, Human Resources, with Rogers Cablesystems Limited. She holds a B.A. and M.A. in History from the University of British Columbia.

GORDON GRAY, Employer Representative

Gordon Gray has worked in the forest industry for over 20 years. Currently he is the Director of Industrial Relations for Weldwood of Canada Limited. In that capacity he is responsible for the collective bargaining, negotiations and ongoing labour relations for operations in British Columbia and Alberta. He is a member of the Conference Board of Canada and on the Advisory Board for

Labour and Management Studies at the University of British Columbia.

LYNN HANCOCK, Employee Representative

Lynn Hancock has worked in the hospitality industry for over 25 years. She has held the position of Vice President of the Hotel, Restaurant and Culinary Employees and Bartenders Union, Local 40 for the past nine years. For the past 16 years, Ms. Hancock, as well as fulfilling her Vice President duties, haE worked as a business representative for Local 40. She sat for two years on thE

Provincial Apprenticeship Board and has been associated with the Victoria Labour Council and thE B.C. & Yukon Territory Building and Construction Trades Council for many years. Ms. Hancock alse sits on three Family Advisory Boards for the Elderly.

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LISA HANSEN, Employee Representative

Lisa Hansen is Executive Co-Director of the Health Sciences Association of ns, B.C. HSA represents 8,000 health care professionals in the B.C. health care the indushy. Prior to becoming the Executive Co-Director in Jtme 1993, Ms. ,an - Hansen was the Assistant Executive Director for one year and Senior Labour in Relations Officer for 12 years. She has extensive knowledge of the B.C. health

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care system as she serviced HSA members across the Province during these years. As part of her responsibility as Executive Co-Director, Ms. Hansen is responsible for labour relations and collective bargaining.

SHERIDA HARRIS, Employer Representative

Sherida Harris has been involved in Labour Relations activities for more than 20 years. She was previously employed with Canadian Airlines as Managel~ Labour Relations, and left Canadian in August of 1995 to work for the B.C. Public School Employers' Association as Employee Relations Specialist. She has had considerable experience in collective agreement administration, grievance processing, arbih-ation presentation, collective bargaining, policy development and labour relations training. The latter included both managing and facilitating a joint training program of union and management officials in conflict resolution.

ERIC JANES, Employer Representative

Eric Janes is the Manager, Labour Relations, for B.C. Hydro and Power Authority. He has extensive experience in all aspects of labour relations over the last 20 years and has been the Manager, Labour Relations, at B.C. Hydro for the past 8 years. He is also an Employer representative on the Joint Advisory Committee to the Collective Agreement Arbitration Bureau, pursuant to Section 83 of the Labour Relations Code.

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24 LABOUR RELATIONS BoARD - 1996 ANNuAL REPORT

JOHN JOHNSTON, Employer Representative

John Johnston, who holds a Masters Degree in Business Administration in addition to a Baccalaureate Degree in the Social Sciences, is the Vice President of Human Resources for B.C.Women, B.C. Children's Hospital and Surrny Hill Health Centre Group. John has been employed· in the health care sector in a senior management capacity for over fifteen years. First with the Prince George Regional Hospital and later with the Richmond Hospital. He has held

part-time faculty appointments with both a community college and a university where he taught both Industrial Relations and Human Resources Management. He has extensive knowledge and experience in bargaining, dispute resolution including A.D.R. and other aspects of labour relations.

D. KEVIN KELLY, Employee Representative

Kevin Kelly is currently President of the Kamloops Local 1-417 of the Industrial Wood and Allied Workers Canada. Prior to his election as President in 1983, he was the Financial Secretary and Business Agent for 14 years. Before being elected to a full time position he worked in logging, sawmilling, plywood and the auto repair business. Mr. Kelly is a member of Forest Renewal B.C.'s Communities Committee, a memlJer of the Science Council of

B.C.'s Communities Research Review Committee and a trustee on several forest industry and union benefit plans. He is also a member of the University College of the Cariboo Forest Advisory Committee, and a member of the I.F.L.R.A. - IWA Trades Upgrading Committee.

GARY KOBAYASHI, Employee Representative

Gary Kobayashi is President of IWA-Canada, Local 1-217, and has been involved with labour relations since 1972. He has served as a member on thE National Executive Board of IWA-Canada and the Provincial Negotiating Committee. As well, Mr. Kobayashi has been Director of the Western Wood Products Forum, and Trustee of the IWA-Forest Industry Pension Plan ..


JOHN LANGLEY, Employee Representative:

in John Langley is the former Recording-Corresponding Secretary/Business ent Agent for Brewery Workers Local 300, a position he .held for eight years. He is . fill currently a Co-ordinated Bargaining Representative for the British Columbia :l a Government and Service Employees' Union and works out of the Union's 1Ce Headquarters in Burnaby. He has worked for the BCGEU for seven years and eld was previously a servicing representative at the Lower Mainland· Area Office. ght Mr. Langley was previously a Board Member in 1986/87 and has been a member of the Executive Ind Council of the B.C. Federation of Labour. Ins.

MARK LEFFLER, Employer Representative

Mark Leffler is Manager, Personnel and Labour Relations for the Greater Vancouver Regional District. In that capacity he is responsible for collective

the bargaining on behalf of 16 municipalities and the Regional District in a ent voluntary bargaining association. His department negotiates some 60 collec-ore tive agreements covering more than 13,000 employees, including inside/ ng, o\1tside employees, police, firefighters, nurses, museum and public library :est staff. The department also provides job evaluation, workers' compensation and employment equity 1 of services throughout the Region. Mr. Leffler is a graduate of the University of British Columbia and, ion prior to joining the GVRD in early 1986, held a variety of labour relations and personnel positions ory with Ontario Hydro, Liquid Carbonic Canada Ltd. and B.C. Hydro.

R.A.S. (BOB) MARCH, Employer Representative

Bob March has been in the personnel labour relations field for over 27 years with Commonwealth Consh·uction. Mr. March's career with Commonwealth

een began as a Personnel Assistant, through Corporate Safety Officer, to his the current position of Manager of Industrial Relations. Mr. March is an active ing participant in the labour relations field. He represents the contractors on )od numerous boards and committees dealing with a wide variety of issues from labour disputes through

to joint apprenticeship training committee functions.

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GAIL MARTIN, Employee Representative

Gail has worked for B.C. Telephone since 1967. For most of that time she has been involved with the Telecommunications Workers' Union as a Local Executive member. She has served on several joint committees with company representatives including contracting out and teclmological change, work jurisdiction and job sharing. Since 1995 Gail has worked full-time for the TWU. She is also active in her community. In 1990 she was a candidate for Councillor

in Delta; she currently serves on the Delta Police Board, and is an executive member of the Canadian Association of Police Boards. She is married with two adult children.

RON McEACHERN, Employer Representative

Ron McEachern is Deputy Commissioner of the Public Service Employee Relations Commission. In this capacity he is responsible for negotiating and administering collective agreements on behalf of the Provincial Government. His branch negotiates numerous master and component collective agreements covering more than 37,000 employees as well as various professional fee for service contracts. Currently he is a member of the Board of Directors for the Health Employers Association of British Columbia. He has been with the

Provincial Government since 1975 and has held various labour relations positions including botIManager and Director of Labour Relations for the Commission. Mr. McEachern is a graduate of thE UniverSity of Victoria and, prior to joining the public service, was employed in industrial relatiom with MacMillan Bloedel Ltd.

LINDA McKENNA, Employer Representative

Linda McKenna is the Vice President of People Development with OrcaBaJ Sports and Entertainment. Orca Bay operates the Vancouver Canucks of th( National Hockey League, Vancouver Grizzlies of the National Basketbal Association, General Motors Place, Winning Spirit Tetail stores and othe entertainment interests. Ms. McKenna has 15 years of labour relations experi ence in the mining, automotive and breWing industries. She graduated with,

B.A. in 1981 from Queen's University and received her M.B.A. from the University of BritisJ Columbia. Ms. McKenna sits on the Human Resource Council with the Conference Board of Canada

. the Joint Advisory Council for the B.C. Collective Agreement Arbitration Bureau, the B.C. Labou Force Development Board, and is a Vice President with the B.C. Industrial Relations Associatior


JERALDINE NEW, Employee Represeiztative

has Jerri New has been an active member of the Office and Technical :cu- Employees' Union, Local 378 for approximately 20 years. As a business repre-my sentative, she has negotiated and administered a number of collective agree-ork ments. Ms. New has been'a member of the B.C. Hydro negotiating committee VU. and acted as a union nominee on arbitration panels for the International 1101' Brotherhood of Electrical Workers, Local 213. She is a Customer Service dan Representative at B.c. Hydro's Office in Kamloops. She is Vice-President for union members at B.C.

Hydro and a member of the OPEIU Executive Board. As the OPEIU's Education Director, she is responsible for the Union's education programs. Ms. New is a member of the B.C. Federation of Labour Education Committee and the Canadian Labour Congress Education Advisory Committee and assists with instructing labour education for the Congress.

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JOHN E. NEWMAN, Employee Represel!tative

John Newman has been a member of the Teamsters Union for over 20 years, 16 of which he was employed as a Business Agent. He originally served as Vice-President, Recording Secretary and Business Agent for Local 351. After the Local merged with Local 213, he represented members employed in a wide variety of manufacturing operations. In addition, he represented members

. employed in the industrial gas field, the motion picture industry and the food industry. He was a charter trustee with the Miscellaneous Division Health and Welfare Plan and a trustee of the J.T. Training Plan. Mr. Newman is currently active with Teamsters' charity work.

JAN O'BRIEN, Employee Representative

Jan O'Brien is President of Local 115-M of the Communications, Energy and Paperworkers Union of Canada. She previously worked for 15 years as a senior reporter. Ms. O'Brien is Vice President of the B.c. Federation of Labour and Chair of the Federation's Women's Rights Committee.

28 LABOUR RELATIONS BoARD - 1996 ANNUAL REPORT

MIRIAM OLNEY, Employee Representative

Miriam Olney is a graduate of UBC and has spent over thirty years in the labour movement. Her current position is Director of Pensions & Benefits for the United Food and Commercial Workers Union. She is also a member of the Executive Council of the B.C. Federation of Labour, a position she has held for over ten years. Miriam also sits on the Boards of the Insurance Corporation of

B.C., the National Irtstitute of Disability Management & Research, and the North Shore Crisis Services Society.

JOHN THOMAS ORR, Employer Representative

Tom Orr has worked in the employee/labour relations field with Cominco Ltd. at the Kimberley and Trail operations for 21 years. He has held a number of positions including Job Evaluation Supervisor and Employee Relations, Kimberley Operations. Mr. Orr has extensive experience in collective agreement and grievance administration, arbitration presentations, collective bargaining, organizational restructuring and benefits administration. MoSI

recently, Mr. Orr negotiated comprehensive 6Y2 term collective agreements with three United Steelworkers of America Locals containing all provisions necessary for closure of the Kimberley Sullivan

. Mine Operations in the year 2001.

DAVID RICE, Employee Representative

David· Rice is the Regional Director of the Canadian Labour Congress. Pacific Region. From 1974 to 1979, Mr. Rice was a researcher for the Depart· ment of Labour where he was also an active member of the B.C. Governmenl Employees' Union, serving four years as a Component Secretary-Treasurer. Ir 1979, Mr. Rice was appointed Director of Research and Legislation at the B.C Federation of Labour. Mr. Riee received his M.A. in Economics from Simor

Fraser University in 1978. He was a director of the Legal Services Society of British Columbia frorr 1988 to 1993, serving as Chairperson in 1992/93. Mr. Rice has been an Executive Member of both thE Victoria and District Labour Council and the New Westminster and District Labour Council. In 198E he was appointed Regional Director of Educational Services with the Canadian Labour Congress anc in 1989 became Regional DirectOl; Canadian Labour Congress operations in the Pacific Region.

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KATHY SANDERSON, Employer Representative

Kathy Sanderson previol!sly served the small business community of B.c. as the Chair of the Coalition of B.c. Businesses and as Director of Provincial Affairs for the Canadian Federation of Independent Business. Currently, Ms. Sanderson works as a consultant and in addition to serving on the Labour Relations Board also sits as a member of the B.C. Labour Force Development Board.

FRANZ SCHERUBL, Employer Representative

Franz Scherubl has worked in the labour relations field for over 15 years. He is currently Labour Relations Manager at BC Gas Utility. Franz started in labour relations as a Business Representative for OTEU Local 378 and has been a- Labour Relations Officer with BC Transit. He has a Bachelor of Commerce and Business Administration degree from the University of British Columbia and has also worked in mining, insurance and retail services.

RON SCHMIDT, Employee Representative

Ron Schmidt is Assistant to the Director of District 3 of the United Steelworkers of America, which -encompasses the four western provinces and both Territories. He became active in his union in the early '70s as a Shop Steward and by 1975 was serving as Grievance Chairperson and Vice-President of this 2600-member Local in Trail, B.C. During 1975/76 he served as an organizer

and in 1977 was appointed to the position of Staff Representative. In 1989 he became Area Supervisor of the Kootenays and B.C. iriterior. In June 1995 he was appointed to his current position. He has many years of experience in arbitration, negotiations and organizing and has held executive positions on labour councils and the B.C. Federation of Labour. _

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CATHY SMITH, Employer Representative

Cathy Smith is a graduate of the University of British Columbia with a Bachelor of Arts degree, Psychology major. After graduation she worked for the Bank of Montreal in several areas, including Card Services Division and Employee Relations. In 1985 she joined London Drugs Limited as the Director

. of Human Resources, overseeing all aspects of the Compensation and Benefits, Employee Relations, Administration, Training and Audio Visual functions.

MARCIA SMITH, Employer Representative

Marcia Smith operates her own small business,. Labrador Communications Ltd., a full-service issues management and public relations company located in Vancouver. Ms. Smith is also the Co-ordinator for the Coalition of BC Businesses, an organization which speaks for 30 associations representing over 50,000 small and medium-sized businesses on labour and employment policy issues in BC.

COLIN SNELL, Employee Representative

Colin Snell is the former President and Secretary Treasurer of the BritisJ Columbia Provincial Council of Catpenters. Prior to his election in 1985 to th Provincial Council, he was Business Agent of Carpenters' Vancouver Loca Union 452 for 15 years. Mr. Snell has held Executive Cotmcil positions with th B.C. Federation of Labour, the B.C. and Yukon Territory Building and Con struction Trades Council and the Vancouver and Dish'ict Labour Council.

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LABOUR RELATIONS BoARD - 1996 ANNUAL REPORT 31

BILL TIELEMAN, Employee Representative

Bill Tieleman is Assistant to the President and Director of COrnnlunications for the B.C. Federation of Labour. Mr. Tieleman was formerly Communications Director for Premier Glen Clark. He has been an active member of the Canadian Union of Public Employees and the Newspaper Guild and holds a. certificate in workers' health and safety from the Ontario Federation of

Labour. He has also been a fund-raising consultant and a journalist, and holds a Masters Degree in political scien<;e from the University of B.C.

DUNCAN WILKINS, Employer Representative

Duncan Wilkins has worked in the employee/labour relations field for over 20 years. He had extensive experience in the mining and metals industry with Comi!)CO Ltd., prior to a four year term at the Business Council of B.C., following which he has carried on a consulting practice in the areas of labour relations, human resources and general management.

GARRY WORTH, Employee Representative

Garry Worth is President of the Pulp, Paper and Woodworkers of Canada (PPWC). He has been active in the PPWC and the Confederation of Canadian

itish Unions since 1979. He was an active member of PPWC Local 10 in Kamloops, ) the including six years as President. During that time he was involved in several ocal sets of negotiations in the B.C. pulp and paper industry as PPWC caucus chair. I the Mt: Worth has also coordinated the certification and negotiation of first collec-=on- tive agreements with smaller groups of workers in the service industry. In addition, he has conducted

union education and training seminars for local union shop stewards and executive members.

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As of December 31, 1996, the Board's mediation group consisted of the following mediators:

DEBBIE APPS, Mediator

Debbie Apps graduated from the Cariboo College Nursing program in 1976 and worked as a registered nurse for the next four years. In 1981 she was employed by the B.C. Nurses' Union, initially as a Labour Relations Officer, then as Negotiations Officer and in 1992 became the Co-ordinator of Hospitah and Organizing. As Hospitals Co-ordinator she was responsible for negotia·

, tions and contract administration of all hospital sector collective agreements, covering more thar , 17,000 employees.

MARK ATKINSON, Mediator

Mark Atkinson has been involved with labour relations since 1981. He is , former Staff Representative and Director with the Hospital Employees' Union His duties included education, negotiatioris, arbitration, general collectiv, agreement administration and the co-ordination of essential services.

JIM BRECKENRIDGE, Mediator

Jim Breckenridge is a former Senior Conciliation Officer with the Feder< Mediation and Conciliation Service of Labour Canada. He was with FMC from 1980 to 1992 and in that capacity dealt with numerous collective bargair ing disputes in British Columbia, Alberta, and both Territories. His pric experience includes five years with,the Public Service Alliance of Canada as

Regional Representative negotiating a variety of collective agreements. His other experience includE ten years as a meteorological technician with the Federal Government.

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LABOUR RELATIONS BoARD - 1996 ANNuAL REPORT

LARRY GREGG, Mediator and Director of Administration and Bargaining Information

33

Lany Gregg graduated from the University of British Columbia in 1981 with a degree of Bachelor of Commerce with specialization in Organizational Behaviour and Industrial Relations. After graduation, he joined the Canada Employment and Immigration Commission where he supervised the delivery of employment and unemployment insurance programs. In 1982, he joined the

Compensation Stabilization Program. Thereafter, Mr. Gregg assumed responsibilities as a mediator as well as being in charge of the Collective Bargaining Information System. During 1994, Mr. Gregg assumed responsibilities as Director of AdnUnistration,

IRENE HOLDEN, Mediator

Irene Holden is a graduate of Acadia University. She joined the Board after more than 15 years at B,C, Hydro where she was Senior Labour Relations

, Officer, negotiating collective agreements, resolving grievances and acting for the corporation at arbitrations. '

JIM KELLY, Mediator

Jim Kelly joined the Board in early 1992 following a long career in the union movement. After 13 years with Ford Motor Company, Mr. Kelly resigned IUs position at Ford and as Vice President of Local 707 United Automobile Workers and assumed a position with the Canadian Union of Public Employees as a National Representative, working for 15 years out of the Kelowna office. He has served on numerous arbitration boards and was

responsible for adnUnistering a variety of collective agreements. Prior to joining the Board, Mr. Kelly worked as a private mediator. '

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GRANT McARTHUR, Mediator

Grant McArthur graduated from the University of British Columbia in 1973. He worked for the Hospital Employees' Union for approximately five years. He then joined the Labour Relations Board as a Special Investigating Officer in 1980 and left to work for Canada Post in late 1984. Mr. McArthur joined B.C. Rail in 1986 where he worked in labour relations and as Manager of Personnel Services for three years prior to returning to the Board,

STEPHEN RINFRET, Mediator

Stephen Rinfret has worked in both labour relations and human resources in B.C. for over 20 years. Immediately prior to joining the Board, he was Director of Labour Relations Services for the Continuing Care Employee Relations Association (now HEABC). During this time, Mr. Rinfret also taught an undergraduate course in collective bargaining at Simon Fraser University, and

. a similar course at the British Columbia Institute of Technology. He holds a Bachelor of Science degree from the University of Montreal (Loyola College) and a Masters degree in Business Administration from Simon Fraser University.

BARBARA SHARP, Mediator

Barbara Sharp has been involved in labour relations since 1974. A forme business agent for both the Workers' Compensation Board Employees' UniOi and the Office and Technical Employees' Union, Local 378, she assumed, wide variety of responsibilities including organizing, education, negotiatiom job evaluation, and general collective agreement administration. She has beel an instructor for the Canadian Labour Congress, member of the B.C. Federa

tion of Labour Political Action Committee and the New Westminster Labour Council. She has chairel various union committees such as education and women's rights, and acted as representative iJ grievance arbitrations.

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III. Health Sector Labour Relations

Regulation


III. Health Sector Labour Relations Regulation

The Health Sector Labour Relations Regulation (the "Regulation") enacted August 4, 1995, directs the Board to include a report on the implementation of the Regulation in its Annual Reports for 1995, 1996, and 1997. Summaries of Court and Board decisions referred to in this report are provided for general information only and should not be viewed as interpretations by the Board.

The background to the Regulation is provided in the Board's 1995 Annual Report. As a result of the Regulation the Board undertook an extensive process directed at implementing the . bargaining unit structure described in Sections 2 and 13 of the Regulation, i.e. the creation of the mandated bargaining units for the purposes of collective agreement administration and for the purposes of collective bargaining.

UPDATING OF CONSOLIDATED CERTIFICATIONS

For the purposes of collective bargaining, the Regulation provides for five bargaining units represented by five bargaining agents (two designated unions and three associations). For the purposes of collective agreement administration, it contemplates ten units represented by seven bargaining agents (the seven designated imions). In order to effect'that goal, the Board retrieved 821 certifications covering 358 employers, ensured that each employer listed was, at that time, the current employer and determined into which subsector (community or facilities) each employer fell. Once those determinations were made, the employers' names were appended to a list attached to the consolidation for each of the newly consolidated bargaining units. The ten consolidated certifications were issued on September 1, 1995. Since that time the Board has continued to update the consolidated certifications. With the move-

ment of some employers to Regional Health Boards and/or Community Health Councils some of the various votes, successorships and certifications had to be amended to reflect that movement. The Board's second revision of the consolidated certifications was issued on May 10, 1996 and, thereafter, was updated on a weekly basis as required.

Paramedical Professional . Determinations

As indicated in the Board's 1995 Annual Report, the Board, in conjunction with the Ministry of Labour, conducted s6me 34 votes to determine bargaining unit representation as directed under Sections 10, 11, and 12 of the Regulation. Twenty-seven of those votes were sealed pending adjudication of outstanding issues.

Of the 27 sealed ballot boxes, approximately 20 are sealed awaiting a determination of whether employees are paramedical professionals or health services and support staff. Following the criteria established in the Board's Inquiry decision (BCLRB No. B444/95) the Board has engaged in an informal process with the parties. This process has involved extensive consultations amongst a working committee who have reviewed job descriptions and developed a questionnaire/interview process in order to gather information about the disputed job classifications. At the end of the year the determinations of paramedical professional status w~re not yet resolved.

Court Challenges to the Regulation The Regulation was the subject of two Court

challenges in 1996. Pricare (which is essentially an organization of "for profit" health care delivery contractors) challenged regulations made

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pursuant to the Public Sector Employers Act which designated some of its members as mandatory members of the Health Employers Association of British Columbia (UHEABCU), and the Regulation which effectively brought its labour relations into the fold along with other public sector institutions in health care. This application was dismissed in British Columbia Assn. of Private Care v. British Columbia (Attorney General), (29 February 1996) Vancouver A953779, with the Court holding, among other things, that: .

... the recommendations emanating from Mr. Dorsey concerning the incorporation into larger bargaining units of private care providers that fit certain criteria may have the tendency to foster that result [to preserve common standards and provide for province-wide consistency]. I find it clifficult to say that those recommendations and consequent Regulations fall beyond the purview of the Act [Health Authorities Act] and the mandate that I believe legislatively was given to Mr. Dorsey by the terms of the 1994 legislation.

An appeal of this decision was filed by Pricare and is scheduled to be heard in the Spring of 1997.

The other court challenge to the legislation was brought by the Labourers, Local 602 which challenged the authority under which the Lieutenant Governor in Council, using the Regulation, purported to cancel its certification and transfer its members to other bargaining agent representatives. That application was allowed in part in Coilstruction and General Workers' Union, Local 602 v. British Columbia (Attorney General) ("CGWU, Local 602") (1996), 21 B.c'L.R. (3d) 48 (S.C). In that case, the Court determined it was Unot able to discern any clear basis of authority in this\egislation, the Health Authorities Act, to permit the Regulations affecting this petitioner [Local 602] to have the effect suggested of removing their status and future ability to continue as bargaining agent." The Court also determined the following:

Whilst I do not believe the Regulations have the capacity or are valid to presently sterilize or prevent in future the collec,tive bargaining relationship between this peti-

tioner and those bodies with which it is currently in such a relationship, I believe that the Commissioner did have in general the power to address the question of the dimensions and composition of appropri- . ate bargaining units in the health sector. That is to say, in other situations, where the Regulation would not affect presently existing interests of the sort exemplified by the petitioner's situation, I believe that the Regulations can and should have full effect. Inter alia, they may have an effect to prevent from entering the field agents not· referred to in the Regulations.

An appeal of that judgment was filed and subsequently abandoned by the Attorney General.

Section 142 Hearing Following the above-noted court decisions,

the HEABC applied to the Board under Section 142 of the Code asking the Board to cancel certifications held by unions who were not among the trade unions defined under Section 2 of the Regulation.

The B.C. Government and Service Employees' Union (UBCGEUU) also applied under Section 142 seeking to include Local 602 and other like unions (who had been divested of their bargaining rights by virtue of the Reg· ulation) in the associations required under tht Regulation for the purposes of collective bar· gaining along with the designated unions. Th( parties to the hearing argued different interpretations as to how the judgment in CGWU Local 602, supra, should apply to the Regulation

In Health Employers' Association of Britisi Columbia, BCLRB No. B262/96, the Panel deter mined that the result was that there were nov two types of bargaining units in the health sec tor: the units consolidated and reduced by th Regulation, and those that remained beyond th reach of the Regulation, (i.e. the Code certificB tions of the divested unions). Thus, the result c the Court decision was that the reduction c bargaining units in the health sector stopped, the point where bargaining agency status we eliminated.

The Panel made no determination as to t1: impact of this reading of the Court decision a

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the Section 142 applications, Instead, the Panel held that it would further canvass the parties before deciding how it should proceed with those outstanding applications. The Panel recognized that there would be significant impact if it were to "undo" all of the various changes implemented as a result of the Regulation, in the form of restructured bargaining units and bargaining agency status. The Panel advised that the Board would proceed cautiously and . take no action on what the Panel determ,ined the effect of the Court decision to be, until the Board had sought further submissions from the parties. At the end of 1996 the Board had not yet sought further submissions.

Biomedical Engineering Technologists The Regulation requires that all biomedical

engineering technologists in the health sector must be included in the Hospital Employees' Union ("HEU") health services and support -facilities subsector unit or the Health Sciences Association ("HSA") paramedical professional unit. As there was no agreement between HEU and HSA within 30 days of the Regulation coming into force the Board was required to adjudicate the issue ..

In Health Employers Association of British Columbia et ai, BCLRB B219/96 (Application for. Leave for Reconsideration pending) the Board dealt with the question of which bargaining unit biomedical engineering technologists should be included in. To make the determination, the Panel was required to decide whether the

. BMETs, as a group, were paramedical professionals within the meaning of the criteria estab-lished by the Board in BCLRB No. B444/95, On balance, the BMETs did not meet those criteria, with the result that they mustbe included in the HEU unit. The parties were expected to negotiate the transfer of BMETs currently in the HSA paramedical professional unit. At the end of the year an application for leave for reconsideration of this decision was still outstanding.

Articles of Association Where there was more than one bargaining

agent for similar appropriate bargaining units, the Regulation directed that the bargaining agents form an association of bargaining agents

for the purposes "Of collective bargaining. The involved trade unions were directed by the Regulation to agree on Articles of Association by January 1, 1996 and, failing agreement, the Board was required to determine the respective articles by March 31, 1996. As the unions failed to reach complete agreement the Board adjudicated the matters.

In Health Employers AssoCiation of British Columbia et ai, BCLRB No. B56/96, the Board dealt with the finalization of articles of association for the trade unions, both in the health services and support - facilities and community subsectors. The various unions had successfully reached agreement with assistance of the Board over most provisions; however, two matters remained outstanding. In addition, the HEABC (which was not involved in the mediation process) expressed concern over various articles which had been agreed to. The Panel found that HEABC had a sufficiently direct legal interest in the design of the bargaining regime to advance submissions regarding the proposed articles of association.

The major issues outstanding between the unions concerned the composition of the negotiating committee and the procedures to be used in ratification. Essentially, the two proposed models were a "proportional representation" model advanced by the HEU and a "modified double majority" proposal advanced by the BCGEU. Referring to the Dorsey Report and the Regulation, the Panel found that continued effective representation in the bargaining process by each of the three agents in each subsector was contemplated, The Regulation did not envisage consolidation of the bargaining units with a single agent represented, in effect, solely by the union with the dominant membership. That result would limit the role of the minority unions to administering the collective agreement bargained by the majority union, Accordingly, the Panel found a structure which incorporates a variation of the" double majority" rule to be the most appropriate modeL The BCGEU's proposqls for both the composition of the negotiating committee and the. ratification process were endorsed.

The primary article disputed by HEABC was a "no concessions" clause. HEABC argued that

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this was an effective veto by any of the unions in the Negotiating Committee. The Panel found that the purpose of "veto" or "no cuts" provisions is to provide a measure of protection to minority unions from having collective bargaining rights taken away by the larger majority in a discriminatory fashion. In this case, the double majority mechanism addressed those concerns and the "no concessions" clause was therefore unnecessary given the protection for minority interests already built into the articles of association.

In Health Employers' Association of B.C., BCLRB No. B82/96, the Board provided reasons for its determination in BCLRB No. B76/96 which appended the articles of association for the paramedical professional bargaining agents in the health sector. A critical issue again was composition of the association negotiating committee. The problems here were somewhat unique as only two unions existed (i.e., the HSA and the BCGEU). The potential veto of a minority interest was seen as more evident, although the Panel found the situation to be tempered by the safeguards inherent where the majority union represents employees in all classifications in the bargaining unit. The Panel generally endorsed the "double majority" concept as propos'ed here by the HSA, but found the suggested wording to be too vague. That wording was revised to require (in the absence of consensus) a decision to be made on the basis of: (i) a majority vote of the committee members in attendance; and (ii) on an issue specific to either HSA or BCGEU paramedical professionals alone, the agreement of the respective constituent union.

The Panel commented secondly on the question of whether one or two bargaining units

. exist of paramedical ,Professionals under the Regulation. The Panel s reading of the Regulation led it to conclude that there is one bargaining unit for the purpose of collective bargaining; the association is certified for that unit and not for a number of units. This was confirmed by the comments of Commissioner Dorsey in his report. The Panel did not comment further on the impact of the Regulation and other provisions of the Code.

An application for leave for reconsideration of BCLRB No. B82/96 was subsequently denied in BCLRB Nos. B245/96 and B356/96.

In BCLRB No. B399/96, the Board consider the parties' submissions regarding appropri; language to be included in the paramedical p: fessional articles of association to ensure rea access to the Board for any adjustments WIT the articles may require. Given that HEABC not a party to the articles, any right it has apply to the Board to have the articles adjusl would have to be statutory and, the Panel nol the statutory provisions may also provide avenue for the parties to the articles to seek < adjustments. Taking note of that, any langu; which was inserted was likely to be sur £luous. However, in light of the Unio requests, the Board did insert language provide either party to the articles the righl apply to the Board for amendment to the a cles.

CoUecfive Bargaining . The collective agreements which goven

the relationship between HEABC and the H HSA and the B.C. Nurses' Union ("BCN expired on March 31, 1996. Those part together with the Government of Bri! Columbia, were also governed by the Emp: ment Security Agreement, commonly refel to as the "Health Accord", which expired March 30, 1996.

As a result of the Regulation a new barg ing structure of health care unions was crea Through articles of association, the H BCGEU and the IUOE came together to barl with HEABC at what was referred to as "Facilities' Bargaining Table.". The BCNU HEABC met at the "Nurses' Bargaining Ta and through articles of association, the I and BCGEU came together to bargain 1

HEABC as the "Paramedical Professionals' gaining Table".

Notwithstanding intensive negotiations, parties failed to reach agreement for renewal of their collective bargaining ag ments and, in Apri11996 the Minister of Lal appointed Vince Ready as an Industrial Ing Commissioner under Section 79 of the Cod among other things, make recommendation the duration and terms of renewal colle, agreements. Commissioner Ready issued report (the "Ready Report") containing his

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ommendations in May 1996 and the recommendations were submitted to the parties for ratification. While the recommendations were not ratified, the consequence of the Education and Health Collective Bargaining Assistance Act, S.B.e. 1996, c.l and an Order-in-Council which designated the employers represented by BEABC as employers subject to that Act, was that Commissioner Ready's recommendations were deemed to be collective agreements between the parties; with outstanding issues continuing before certain named arbitrators as directed by the Ready Report.

At the end of 1996, HEABC and the association of bargaining agents in the health services and support - community subsector (comprised of BCGEU, HEU and the UFCW) were engaged in collective bargaining. Collective bargaining was also on-going with the Professional Association of Residents of B.e.

Other Decisions of Interest Other decisions of interest related to the Reg

ulation include: .

• Sunshine Coast Home Support Society, BCLRB No. B80/96

• Rose Manor/Red Cross Society, BCLRB No. B21/96

• Health Employers Association of British Columbia, BCLRB No. B127/96

• Prince George Regional Community Care Society, BCLRB No. B130/96

• Nelson & District Home Support Services Society, BCLRB No. B249/96

• Certaih Electroneurophysiologtj Technologists, BCLRB No. B381/96 (Application for Leave for Reconsideration pending)

IV. Alternate Dispute Resolution

LABOUR RELATIONS BoARD - 1996 ANNuAL REPORT 45

IV. Alternate Dispute Resolution The Adjudication Division of the Board

began a major initiative in 1993 directed towards improved alternate dispute resolution (ADR). Settlement efforts have always been part of labour relations adjudication through the use of special investigating officers, members and other Board staff. However, a renewed emphasis was placed on alternatives designed to bring about the resolution of disputes between parties short of a full evidentiary hearing. These alternatives have two objectives: the settlement of disputes without any adjudication and, alternatively, the simplification and streamlining of hearings where settlement is not possible (the latter might be more appropriately referred to as "case management").

, The impetus for improved ADR came, primarily from two factors. First, the Board was responding to concerns from the labour relations community that its processes are too costly and legalistic, and that there is excessive delay in the rendering of decisions. Second, given the Board's workload and limited resources, changes were necessary if the tribunal was to effectively carty out its legislative mandate.

The Board began by conducting an internal audit and identifying "problem' areas" which

, might benefit from improved ADR. It also conducted a step-by-step analysis of the adjudication process before identifying ways in which ~he processing of applications' might be Improved. This resulted in a series of ADR proposals, some of general application and some f?r the handling of specific types of applications. These proposals were then reviewed with a ,broad spectrum of participants from the labour ~elations community. Meetings took place WIth labour representatives, employer representatives, the legal community and others.

. ~e process of 'consultation resulted in a sigmficant consensus on appropriate changes.

These changes included the maimer in which applications are initiated; earlier and more deliberate settlement attempts, including settlement conferences; pre-hearing conferences; and alternate forms of hearings (including simpler and less expensive adjudication based on the expedited arbitration model). Proposed amendments to the Labour Relations Board Rules (which govern practice and procedure) were then developed and sent to all persons who had participated in the consultation process for final input.

The final responses received by the Board indicated very little conti'oversy over the proposed amendments. Indeed; there was broadbased support in the labour relations community for the ADR initiatives being considered. Acting on this consensus, the Board prepared formal Rule amendments for approval by the Minister under Section 126 (2) of the Code. These new Rules became effective on August 2, 1994 and the Board has since applied many of the alternatives to formal hearings in a variety of contexts.

During 1996, the Board continued to pursue its ADR initiatives, most notably through a joint meeting with representatives from trade union and employer organizations. The general consensus for ADR at that meeting led to formation of an ADR Working'Committee supported by the major stake-holders. The Board's implementation of ADR continued during 1996 with training sessions for adjudicators, together with increased utilization of case management strategies and alternate forms of hearings. Formal settlement conferences were also scheduled in a number of cases with resulting success. The labour relations community has been made aware that ADR is now part of the Board's standard process, and will be adopted in some form for virtually all applications. The Boardhas also developed a reputation nationally as a leading tribunal in this area.

v. Highlights· of Board Decisions


V. Highlights of· Board Decisions In 1996 the Adjudication Division published

402 numbered formal and letter decisions. The following are summaries of some of the more

. noteworthy decisions issued during the year.

. These summaries are provided for general information only and should not be viewed as a ruling by the Board or an official interpretation of the Labour Relations Code. The full texts of these and other Board decisions are available at . the Board's Library or can be obtained· from Western Legal Publications (toll free hot line 1-800-663-0422 or Vancouver 687-5671).

RIGHTS, DUTIES AND UNFAIR LABOUR PRACTICES Employer Free Speech Cardinal Transportation B.C. Incorporated, BCLRB No. B344/96

This decision concerned two applications for reconsideration that raised two important and related issues of law and policy. The first is the scope of permissible employer speech during a union organizing campaign. The second is the proper approach to remedial certification where unfair labour practices have been committed during an organizing campaign.

The first application for reconsideration was by Cardinal, seeking review of BCLRB No. B463/94. The original decision in Cardinal found that Cardinal had committed unfair labour practices contrary to Sections 6 (1), 6 (3) (d) and 9 of the Code and granted CUPE certification under Section 14 (4) (f). The second application for reconsideration by the Teamsters, sought review of Klassen Pontiac, BCLRB No. B232/95 which found that Klassen Pontiac had committed certain unfair labour practices but declined to grant the Teamsters certification under Section 14 (4) (f). The facts of the cases and arguments made at the review stage provided the Board with the opportunity to set out its policy on employer free speech and remedial certifications.

The Board's policy respecting Section· 8 (employer free speech) was summarized as follows:

(a) Employers have a general right to express their views. However, to fall within Section 8, communications must be either statements of fact or opinions reasonably held regarding the business. An employer'S statement can influence the choice of an employee provided it is protected by Section 8 (or does not in any way contravene the Code).

(b) Coercion is defined as any effort by an employer to invoke some form of force, threat, undue pressure, or compulsion for the purpose of controlling or influencing an employee's freedom of association.

(c) There is no "statutory immunity" for statements about the employer's business which are coercive as set out in (b) above.

(d) The defihition of "business" in Section 8 includes statements concerning all aspects of managing the business including collective bargaining matters; however, it does not include statements concerned with union membership. Such latter statements can be permissible under the Code so long as they fall outside the prohibition contained in Sections 6 and 9. "Business" does not include negative comments about unions in general.

(e) Captive audience meetings will continue to be given a strict level of scrutiny. Statements that would otherwise be permissible may, in the context of a captive audience meeting, be impermissible. This is especially true in the areas of the economic dependence of employees and union membership requirements.

(f) The long-standing policy of this Board and other labour boards in Canada is that an employer is not entitled to engage in

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an anti-union political-style campaign in an effort to prevent the union from certifying. The greatest point of resistance by employers to trade unions is at the initial point of employees attempting to exercise their statutOlY choice in favour of collective bargaining. A statutory choice has been made to restrict employer speech at this point in favour of ensuring employees' freedom of association. An employer's vigorous presentation of its anti-union views may be reasonably perceived by most employees as one that is not "safe to thwart". The American experience seems to verify this.

The Board also addressed whether the statutory prohibitions and remedy of an unfair labour practice, and consequent restraints on employer speech, conflict with the guarantee of an emplo)'er's freedom of expression under the Charter oJ Rights and Freedoms (the "Charter"). It said that it is clear that employer free speech and an employee's freedom of association are ihterrelated. In the Labour Relations Code and in the Board's policy, an employer has a general right of free speech as guaranteed under the Charter. Any infringement of that right must be justified in specific terms. The circumstance where that is most justifiable is where union representation is in issue. The certification and unfair labour practice provisions of the Code are designed to facilitate and protect an employee's freedom of association. In interpreting Section 8 the Panel balanced the employer's right of free speech with the employees right of freedom of association in favour of employees at the initial stage of organizing. This determination reflects the balance struck in other Canadian jurisdictions.

The Board then set out its policy on remedial certificatiori. The test established by Section 14 (4) (f) for the imposition of remedial certifica-

. tion is that but for the employer's unfair labour practice, the union "would likely have obtained the requisite [majority) support". The evidentimy factors that the Board will examine in making this determination are as follows:

(1) the level of membership support prior to and subsequent to the employer's unfair labour practice;

(2) the seriousness of the employer interference and the reasonable effect

(assessed objectively) of that interferen on employees;

(3) the point or stage in the organization . drive of the employer'S interference;

(4) if less than a majority of employees a members of the trade union, wheth there is adequate or sufficient support conduct collective bargaining (i.e. neg tiation, representation, etc.);

(5) the "totality of the conduct" of f employer; and

(6) the specific nature of the employer a: the employees.

AIty of these factors may be sufficient to gn remedial certification in a particular case; c( versely, several or all may be required in ot! cases. The Board will consider additiO.l remedies which should be granted toget! with a certification order and may attach con tions'under Section 134 of the Code.

. As a result of the above analysis the recc sideration panel determined that although Klassen Pontiac its finding of unfair labour pr tices would not be limited to those found by original panel, it would not give retroact effect to the new policy: see B.A.T. Construct Ltd., (1995) 25 C.L.R.B.R. (2d) 1. Accordingly, reconsideration panel dismissed both appli tions for reconsideration.

Internal Union Affairs - Bias

Frank Bugyillka et aI, BCLRB No. B358/96

A number of individuals applied to the Bo alleging that the GCIU, Local 25-C violated ~ tion 10 of the Code when it found them guil~ charges under the Union's constitution, expelled them from membership. The Pc found that the Chair of the Union's Trial 0 mittee had made comments which inclw something to the effect of "If you rob a be don't you know you are robbing a bank?", . "If you are a murderer, aren't you requi to come and admit that you have done murder?". The Panel found it unnecessa1" rely upon another example of bias (which: only weakly responded to by the Union) to effect of the Chair stating "How can these gt parties comp lain a bout bias when they votec the Local's Constitution which set out the

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LABOUR RELATIONS BOARD ~ 1996 ANNuAL REPORT 51

tem?" The comments relied upon were found to have established that the Chair pre-judged the cases against the Applicants prior t? hearing the evidence relating to the charges. This was found to constitute actual bias - the test which applied in the circumstances, following Coleman and Leaney, BCLRB No. B282/95. The Panel further found that the decision of the Trial Committee . was tainted by the existence of actual bias on the part of the Chair and its decision should be set aside. The Applicants were not, however, entitled to legal costs in accordance with prior Board jurisprudence.

ACQUISITION & TERMINATION OF BARGAINING RIGHTS

Union Organizing Activity

Sears Canada.Inc. (Victoria)~ BCLRB No. B302/96 (Application for Leave for Reconsideration pending)

Th'is decision dealt with allegations of unfair labour practices during the course of an organizing drive. One of the allegations arose from the discipline of an employee who was recruiting members on the Employer's premises during the employees' working time. With respect to this discipline the panel noted that Section 7 (1) of the Code specifically states that absent an employer's consent, a person "shall not attempt, at the employer's place of employment during working hours to persuade an employee of the employer to join or not join a trade union". The fact that the disciplined employ~e was not working during the recruitment time was not determinative. If an individual is attempting to persuade someone to join a union, the reference to "working hours" in Section 7 (1) does not mean that both people involved must be working at the time to constitute a violation of the Code. If either one or both are working at the time the action is brought within the scope of Section 7 (1). An employer has the right to direct the work force and discipline if necessary and does not have to apply to the Board under Section 7 (1) in order to~eal with this type of situation. If the union behev~s that the discipline is not for proper

. cause It can apply under Section 6 (3) of the Code and, in response, the employer may file a

competing application under Section 7 (1) or, as was done in this case, argue that it had proper cause to discipline.

In the circumstances of this case, the panel determined that the Employer's discipline of the employee had not been consistent with its application of discipline given similar circumstances and, therefore, the discipline was a violation of Section 6 (3) (b) of the Code.

Membership Evidence

T. Jordan Inc., BCLRB No. B51/96

The BEU sought to be certified for a unit of employees at and from a facility operated by the Employer. The sole issue concemed a membership card signed by one employee. That employee attended the certification hearing and indicated that the BEU organizer presented her with a membership card suggesting to her that she sign the card "in support of her fellow employees and the Employer". The employee later discovered that her impression of support amongst other employees was in error, as was her view of the Employer's position. She blamed her conclusions squarely on what she said was the BEU's misrepresentation (which was denied by the Union). The Panel found that the circumstances did not require a hearing and rendered an oral decision. The analysis reviews a number of authorities dealing with representations in relation to membership cards. The Board has confirmed that a union is entitled to considerable latitude "with regard to puffery and promises which it can make during the course of an organizational campaign". The limits placed on that latitude are in the area of coercion and intimidation. In addition, the Board will carefully scrutinize membership evidence where there is alleged misrepresentation; howeveI~ before misrepresentation vitiates a card, it must be material and have a direct effect on the meaning of the card or the freedom of choice of the employee to select membership. This case did not fall within any of the prohibited areas and, by signing a card without investigation, the employee did so at her own peril and not in any way that vitiated her freedom of choice or the meaningful nature of her card. The objection was therefore dismissed and the Union was granted automatic certification .

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Opus Framing Ltd., BCLRB No. B176/96

An issue arose in this case over the validity of two membership cards in the context of a certification application by the GWU, Local 1. A further investigation was conducted by an Industrial Relations Officer. The officer's report indicated that one Gird had been signed by the employee in red ink and had been witnessed and dated in black ink. A second card had been signed by the employee in blue ink, while the witness signature was in pencil and the date was in ,black ink. The parties were given an OpportunIty to file submissions regarding the

'report, but the Union did not respond. The Panel found that the Union carried the onus to prove that its membership evidence met the strict requirements under Section 3 of the Labour Relations Regulation. By not responding to the request for submissions, the Union had failed to provide any explanation regarding when the two cards were signed and dated. It was accordingly not possible for the Panel to determine whether the apparent time lag between signature and dating on both cards was acceptable. The cards were therefore rejected, although the Union had the requisite support for a vote.

w.G. Enterprises Ltd., BCLRB No. B308/96

This reconsideration decision concerned union membership evidence and in particular compliance with Section 3 of the Labour Relations' Regulation. The Panel used this case to describe in detail both the ,underlying principles and the operation' of the Board's administrative treatment of union membership evidence.

On the particular facts of the case, the Panel adopted a "single event" model in concluding that cards signed within the space of a single meeting but which were also dated during the course of that meeting by someone other than ' the signatory to the card were acceptable membership evidence. Specifically, the Panel concluded that signing and dating within the space of a 45 minute meeting meets the objectives of the statute and Regulation as evidence of membership in good standing.

Membership Support - Construction Industry

M J B Hookups Electrical Contractor Ltd., BCLRB No. B58/96 , This decision dealt with one of three obj

tions raised by the Employer to an applicati for certification by various locals of the IBE The objection concerned an argum~nt that' Union did not have sufficient membership SI port based on the Board's decision in B.I Construction Ltd., supra. In discussing the tes' that decision, the Panel here found that "reasonable expectation of being re-emplo) during the 30 days following the date [certification] application" must be obj tively determined. A mere possibility of employment is not sufficient; there must b substantial likelihood. Further, the expected employment must be within the 30-day per and assessed as of the date of the certificat application. Evidence of who actually ends working during the 30 days may be relevant is not determinative. More useful evidence' be found in such factors as mutual agreem( regarding re-employment, regular and pree able patterns of employment prior to the dat application, and the work that the employer scheduled as of the application date. Appl) that approach to the facts, the Panel found the Union did not have the necessary mem ship support and the certification applica was dismissed.

Tercon Contractors Ltd., BCLRB No. B83/' The Boilermakers, Lodge 359 applied t(

certified for a bargaining unit of "employe~ British Columbia except office staff". Employer and the CLAC opposed the app tion on two grounds. The first objection reg ing timeliness was dismissed by the Pan( BCLRB No. B9/96. The second objection, ( with in this decision, was that the Boilerma did not have sufficient membership sUPI This objection led to the Panel to examin detail the Board's approach to membership port for certification applications in the struction industry, as articulated in B.A. T. struction Ltd., supra, together with the Pi bases underlying that approach. An applici of the B.A.T. principles to the present

objec,cation IBEW. lat the p supB.A.T. test in at the )loyed ate of objecof re

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resulted in the Boilermakers having sufficient membership support. As the certification application was otherwise in order and satisfied the requirements of the Code, certification was granted.

Appropriate Bargaining Unit Resort Municipality of Whistler, BCLRB No. B33/96,

CUPE, Local 3853 sought to be certified for a unit consisting of employees in the Municipality's bylaw department and waste water treatment plant. The application was for an initial certification and the only issue was appropriateness of the bargaining unit. The Panel emphasized that there is only one case of significance in dealing with appropriateness; namely, Island Medical Laboratories Ltd., (1993) 19 C.L.R.B.R. (2d) 161. There is no longer any apparent need for or relevance to citing pre-I.M.L. cases. Further, while a certain amount of evolution following I.M.L. is to be expected, "cherry picking" cases is not helpful. The preferable approach is to argue applications from first principles found in I.M.L. alone. In the present matter, the issue was whether the Board can certify two "building blocks" put together into a single bargaining unit on a first application as a first step towards an allemployee unit in the I.M.L. building block approach. Either the bylaw department employees or. the treatment plant employees "would be certifiable standing alone on a first unit application". Together they simply formed a combined two building block step down the road to the certification of all employees of the Municipality. While the interests of the two groups were not identical, they did not conflict. As a result, the certification was granted.

Famous Players Inc., BCLRB No. B334/96 TJ;ris was an application by the Union under

Se~tion 18 of the Code to represent a bargaining urnt o~ floor staff at one site of the Employer's ~perations. The Employer opposed the application on t~e ba~is that it provided an unacceptable I?rohferation of units and was thus inapproprIate. In so doing it relied on Island Medical Laboratories Ltd, supra. ~t the time of the application, the applicant

Druon represented projectionists at all of the

Employer's 14 locations in British Columbia. They formed a single bargaining unit with a single collective agreement. The BCGEU represented a multi-location bargaining mtit for floor staff at 6 of the Employer's 14 locations. The SEIU represented cleaning staff employees, although at that time ther~ were no employees in the SEIU unit.

The unit sought in the application was a second or additional unit thus industrial stability is the prime consideration. The focus articulated

. in Island Medical Laboratories Ltd., supra, on industrial stability was underscored by the Panel's finding that there was no evidence of a reluctance of the BCGEU to organize the floor staff in question. In addition the Panel found that the nature of the group of employees being sought by the Union were not a traditionally difficult to organize group.

The Panel examined the lengthy history of stable industrial relations that was the legacy of the existing bargaining unit configuration and concluded that the evidence did not lead to the conclusion that the addition of an additional bargaining mtit would further industrial stability. It then concluded that the evidence had failed to rebut the presumption against additional bargaining units and the application was dismissed.

Competing Applications A. & R. Metal Industries Ltd., BCLRB No. B240/96

The CAW and the CLAC both applied for certification under Section 18 of the Code for the same unit of employees. The CAW's application was initially filed on June 26 and the certification hearing was set . for July 3. The CLAC's application was filed on July 2. The CAW had the requisite 55 percent support for automatic certification; the CLAC had support greater than 45 percent but less than 55 percent. The Board ordered a "run-off" vote between the

. Unions and directed that the ballot boxes be sealed. The CAW argued that the vote should not have been ordered, and that it should have been granted certification. The Panel rejected this argument having regard to prior authorities.

The Panel confirmed that when the Board is faced with competing applications and at least


one trade union has at minimum 55 percent membership support, there is no question raised as to whether the employees wish to be represented by a trade union. The only remaining question is which of the trade unions should be the representative bargaining agent. As set out in Elkview Coal Corporation, BCLRB No. B288/93, the question is different if neither trade union can demonstrate 55 percent membership support at the time of application for certification. There may still remain a question for determination by ballot; that is, whether the employees wish to be represented by a trade union.

Where there are competing applications for certification filed in a timely manner (i.e. within the ten-day period) and where one or more trade unions can demonstrate 55 percent membership support, the only way the Board can be assured without a doubt that a trade union is representative of the employees it purports to represent is to order a "run-off" vote. The Board will conduct a vote and the ballot will ask the employees to determine which union they wish to have represent them. . Where two (or more) trade unions have less than 55 percent support but meet the 45 percent threshold, the Board will use a two-part ballot. The first part will ask the employees if they wish to be represented by a trade union. The second part will ask the employees which union. If the result of the first ballot is not in favour of trade union representation, then both applications for certification will be denied. If the result of the first ballot is in favour of trade union representation, then the ballots cast on the second patt will be counted to determine which applicant will be the representative union.

The Panel therefore directed that the ballots cast in the vote be counted. However, before that occurred, a Special Investigating Officer would be in contact with the parties in an effort to resolve challenged ballots.

Dependent Contractors

Weyerhaeuser Canada Ltd. (Vavenby Division), BCLRB No. B129/96 Gudicial Review Application dismissed)

This was a reconsideration of BCLRB No. B237/95. The original panel granted the TWA

Local 1-417' s application to vary a group , dependent contractors into its existing certific tion. The original panel noted that the test f, determining dependency of contractors has n changed in the Code (see Aspen Planers Lil BCLRB No. 250/83). The change is in the exte sion of collective bargaining rights available dependent contractors: West Fraser Mills U, BCLRB No. B97/93 (Reconsideration dismissl at BCLRB No. B442/93). These conclusio: were supported in the reconsideration decisic

Much of the reconsideration application de. with findings of fact, which the reconsiderati, panel properly noted is beyond a reconsideJ tion panel's scope of review. Several key jssUo however, are discussed in the reconsiderati, decision. Island Medical Laboratories Ltd., sup states that access to collective bargaining larg( affects appropriateness under Section 28. T factors set out in West Fraser Mills, supra, a commented upon in Evans Forest Produc BCLRB No. B421/95, review the examination appropriateness. The inclusion of depend! contractors can be made based on the evider of only a few of the contractors. Following j

decision, with the assistance of an IRQ's rep( the principles of dependency set out in the dE sion would be applied to the remaini contractors.

The Employee's reconsideration applicat focused on the choice a contractor has to dependent. So long as the contractor ha! choice as to whether or not to be depend, upon a single employer, the contractor rema independent. The reconsideration panel did: accept that view. The Board's jurisprudence 1

not adopted that analysis. Choice is only ( factor to consider. Further, a contractor's chc is difficult to assess. The reconsideration pa concluded by stating: "The extent and c tinuity of the work performed by the contrac and the terms under which the work is I formed will, in all circumstances, determine relationship between the contractor and employer" (p. 19). The reconsideration appl tion was dismissed.

Weyerhaeuser Canada Ltd. (Vaveltby Division), BCLRB No. B275/96 Gudicial . Review Application dismissed)

This is a reconsideration deCision in wI the original panel clarified that a bargair

lp of tificast for IS not

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unit which had been dealt with in a previous cas'; by the same panel, was linrited to owners of one truck. The reconsideration application with regard to this part of the decision was disnrissed. Howevel, the second element of the original decision concerned a statement by the original panel that "If the Dillon wishes to pursue an amendment to the uillt to include log haulers (owners/operators) who own more than one truck, the Panel will consider subc nrissions filed on or before June 12, 1996.". The re~onsideration panel agreed with the Employer that such a procedure was improper. The previous decisions by the original panel had established and clarified the bargaining unit and the appropriateness thereof. If the Dillon sought to change that bargaiillng unit description it would have to bring a fresh application in the nature of a variance.

Weyerhaeuser Canada Ltd. (Merritt Division), BCLRB No. B296/96 (Leave for Reconsideration Application pending)

Thls was an application under Section 28 of the Code seeking to vary certain truckers into an existing bargaining unit in the forest indushy. The Dillon asserted that they were dependent contractors. The Employer took the position that they were independent contractors.

The Panel in applying the factors set out in West Fraser Mills Ltd. added the observation that a reconsideration panel may wish to reexamine and simplify the test in this area since the existing jurisprudence has developed a complexity that results in lengthy evidentiary hearings.

In addition, in dealing with the existing test the Panel considered the issue of the appropriate period of calculation of dependency. After reviewing the two year period which had been applied in Evans Forest Products Ltd. and the suggestion from the Union that a more appropriate test was the "season", the Panel adopted a one year period as the appropriate standard of measurement. .

. Finally, in dealing with the existing test and the fact:ual elements of the case, the Panel thoroughly canvassed each of the relevant criteria before concluding that the truckers in question were dependent contractors.

Supervisory Unit

Repap British Columbia Inc., BCLRB No. B168/96

The ILWU, Local 514 applied to be certified for a unit of supervisors at the Employer's pulp nrill. The PPWC, Local 4 was already certified to represent production and maintenance employees, and the BCGEU was certified to represent. office and techillcal employees. The ILWU's certification application was opposed by the Employer and by Certain Employees who would be within the unit. By agreement of the parties, a hearing was held to deal only with an objection based on the appropriateness of a third bargaining unit.

The cumulative result of three factors led the Panel to conclude that a third unit would not be appropriate for collective bargaining. First; under Island Medical Laboratories Ltd., supra, the fact that the present application was for a third unit to be represented by a third bargaining agent bore consideration. Second, the history of labour disputes at the pulp nrill was not a positive labour relations record. Third, the Panel considered the importance of the pulp nrill in the region and the consequent impact of a shutdown. These three factors taken together provided a forceful industrial stability argument against allowing the application. In reaching this conclusion, the Panel also considered the fact that the supervisors could gain access to

. collective bargaining by being included in a unit with the employees currently represented by the BCGEU. Disnrissing the application for certification would accordingly not deny the supervisors access to collective bargaiillng.

CONTINUATION OF BARGAINING RIGHTS

Successorship

Royal Roads Ulliversity, BCLRB No. B107/96 (now reported at 31 C.L.R.B.R. (2d) 1)

Thls lengthy decision dealt with an application by the Public Service Alliance of Canada (PSAC) pursuant to Sections 35 and 36 of the Code for a declaration that Royal Roads Uillversity was the successor to Royal Roads Military

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College and thus bound by a collective agreement negotiated between PSAC and the federal Treasury Board.

Dealing first with the issue of successorship, the Panel found that there had been no transfer or other disposition of a "business" as that term has been explained in prior authorities. While the matter must be viewed from a labour relations perspective, there must nevertheless be a discemible continuity between the business of the successor and that of the predecessor. In this case, the employees covered by the PSAC collective agreement performed "ancillary services" such as groundskeeping or administrative support. If PSAC's argument that these could be severed and treated as a going concem in and of themselves were accepted, then successorship could flow from restaurants to factories to schools, all of which ,might utilize such services in one capacity or another. After a detailed examination of the Lyric Theatre factors, the Panel concluded without hesitation that there had been no successorship.

Although not necessary to its, decision, the Panel went on to consider the proper interpreta~ tion of Section 36 of the Code. It rejected arguments by the University that the words" collective agreement" and "collective bargaining" in that provision should be given the meaning ascribed to them in Section 1 of the Code. If that were the case, there would be an apparent

absurdity, with Section 36 effectively becomir meaningless. The Panel thus found that tl provision was intended to facilitate successc ship between federal and provincial spheres, legislative competence. As a matter of law ar policy, the Board will expect a union to taJ steps to bring itself within the sphere of tJ Code, where there is a successorship under Sf tion 36, if it is to continue operating in t] provincial sphere.

Granville Island Brewing Company Ltd., BCLRB No. B322/96

This case involved an application under Sf tion 35 'of the Code for determination of rigl and privileges acquired by an employee the predecessor company concerning the rig to obtain employment with the succeSE employer. The Panel after reviewing the jUt prudence in this area set out the following su maty of seven rules that emerge from the jUt prudence in this area: , '

(i) A transfer of employment from a p decessor to a successor is not autom! under Section 35. Employees cam be transferred against their will b) predecessor employer to a succes: employer.

(ii) When a buSiness or part of it is S( leased, transferred or otherwise ( posed of, the predecessor employ<

Duty of Fair Representation Decisions

80

70

PO

50

40

30

20

10

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Number of Applications

1987 1988 1989 1990 1991 1992 1993 1994 1995 1996 Year

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LABOUR RELATIONS BOARD - 1996 ANNuAL REpORT 57

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employees may be terminated or laid off by the predecessor employer as a result and may choose to exercise whatever rights they have against the predecessor employer under the collective agreement in force at the time of sale, lease, transfer or other disposition.

'(iii) If the predecessor's employees wish to continue employment with the successor, they may exercise that option and their employment will continue to be governed by the terms and conditions of their collective agreement to which the successor becomes bound.

(iv) There is no guarantee that an actual job will be available with a successor nor is a successor obliged to create work to accommodate the total employee com- , plement which may result from a successorship.

(v) If there are no jobs or insufficient jobs available with the successor employer, then which of the employees in the total employee complement resulting from the successorship actually work, and which may be obliged to rely on recall or other rights under the collective agreement, will be determined by the terms of the collective agreement (seniority, qualifications or bumping) subject to any direction which the Board may give under Section 35 (3) (d) and (e).

(vi) Nothing precludes the successor from not continuing the employment of employees in the total employee complement resulting from the successorship for bona fide reasons such as lack of qualifications or seniority as may be specified by the collective agreement, or lack of positions or jobs.

(vii) The successor employer may not use the process of successorship to weed out what it perceives to be undesirable employees, thereby circumventing the just cause provisions of the collective agreement to which it becomes bound.

The particular rule which applied to the case at hand was that a successor employer may no.t use t~e proc:ss of successorship to weed out what It perceIves to be undesirable employees.

On the facts of the case the Board concluded that the Employer was obligated to offer employment to the employee in question and failed to do so for an improper reason. It then granted the Union's application and directed that a position be made available to the person affected. '

Common Employers: Franchisor-Franchisee

White Spot Limited, BCLRB No. B352/96 White Spot (as franchisor) and Gilley Restau

rants (as franchisee) both sought reconsideration of BCLRB No. B191/95 which had found them to be common employers under Section 38 of the Code. The reconsideration panel dismissed each of the applicants' grounds for reconsideration. First, the Panel found that there was no palpable or OVerriding error in regard to the findings of fact or factual conclusions in the original decision. Second, the conclusion that White Spot and Gilley Restaurants were under common control or direction was consistent with the principles expressed or implied in the Code.

In reaching its conclusion regarding control or direction, the Panel relied on Concerned Contractors Action Group, BCLRB No. 32/86, and affirmed that decision as establishing the appropriate principles to be applied in common employer applications. The Panel acknowledged that this Board (and other labour boards) do not have much experience with the labour relations issues that arise under franchise arrangements. Thus, the Board will proceed cautiously in the development of policy in this area. The Panel left for future consideration other types of franchising arrangements, if and when the appropriate case arises.

Finally, the reconsideration panel held that CAW's attempt to preserve its existing collective agreement scope clause (which had applied to all of the White Spot restaurants for which it was certified prior to the franchising) and the resulting collective agreement rights, was a, valid labour relations purpose. The original panel's decision was consistent with the principles expressed or implied in the Code regarding this aspect of the common employer provision.

In the result, the applications for reconsideration by White Spot and Gilley Restaurants were

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both dismissed. One member of the five-person reconsideration panel issued dissenting reasons, and would not have made a common employer finding.

COLLECTIVE BARGAINING PROCEDURES

Existence of Collective Agreement '

Tercoll COlltractors Ltd., BCLRB No. B9/96

The Boilermakers applied to be certified for an all-employee unit in the construction industry. The Employer (which comprised two entities previously declared by the Board to be a conunon employer) and CLAC (the incumbent union) opposed the application on two bases: first, that the certification application was untimely as a result of existing collective agreements; and second, that the Boilermakers did not have sufficient membership support. The first objection regarding timeliness resulted from the fact that the common employer had executed two collective agreements with CLAC having different exphy dates. The Panel found that a common employer is not entitled to revert to its constituent entities and have them operate independently with respect to Code matters such as collective agreements and certifications. At least in the context of the present matter, a single employer (which is what a common employer comprises for purposes of the Code) is not entitled to have more than one collective agreement for a single group of employees. As a conseque[lce, the separate collective agreements were declared invalid, at least with respect to the Code tights of third parties such as the Boilermakers. As to the second objection regarding membership support, the submissions disclosed a: factual dispute which required the Board schedule a hearing on an expedited basis.

Way"e Watsoll COllstructiOIl Ltd., BCLRB No. B150/96

This decision followed earlier proceedings between the parties set out in BCLRB Nos. B306/94 and B2bo/95. The issue before the present Panel was whether a letter of understanding signed by the Employer and the Iron Workers, Local 97 in 1980 was of force and

effect. The Employer argued that the letter w, void ab illitio because it was a member of CLR on the day it was signed; therefore, It Employer lacked the legal capacity to enter in a collective agreement. The Panel noted tl Employer's reliance <in previous authoriti< which have 'characterized collective agreemen signed outside of certified or accredited be gaining agencies to be "void". However, tJ Panel found that such a strict; technic approach to the enforceability of collecti' agreements would n<it be in keeping with B overall law and policy of the Code, as well the Board's equitable jurisdiction which ariE from the statute. It found that the "v oil approach, applied strictly without regard equitable considerations, places undue eJ phasis on only one policy of the Code,(i.e. exd sive bargaining agency) to the detriment oj balanced system of labour relations which responsive to the needs and expectations of t parties, as well as other central policies of t collective bargaining regime. The Panel furtl found that it was appropriate to now mc away from such an approach toward, for lack a better term, a "voidable" approach to agr' ments signed outside of exclusive bargaini agencies. The Panel found support for t: approach from a number of more reCE authorities, as well as the Board's jurisdict under various provisions of the Code; In . circumstances here, although the Employer v able to point to a breach of the exclusive \; gaining agency provision, the Employe improper conduct; its delay to set aside letter of understanding, and a number of of circumstances giving rise to equities favour the Union, led the Panel to concludetha would be contrary to "a sound sense of equities, rights and conduct of the parties" grant the declaration sought. The Employer 1

estopped from relying on the current Sect 43 (5) of the Code in order to avoid its 10 standing agreement with the Union. Any ter nation of the letter of understanding must done in accordance with its terms.

First Collective Agreement' The Bay, BCLRB No. B62/96 (Judicial Revi, Application dismissed)

In this decision the Board denied Employer's application for leave for re(

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lack of agree-aining )1' this recent fiction In the erwas 'e bar-oyer's ie the f other During that it of the ies" to erwas ;ection ; long-terrni-,ust'be

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sideration in respect of BCLRB No. B309/95. The Board in that decision had constituted itself as an interest arbitration board to resolve the outstanding issues for a first collective agreement between the Employer and the Steelworkers. The Employer's first argument was that the, Board had established a standard of deference to recommendations by a mediator whiCh improperly adopted the test under Sections 99 and 141 of the Code. This argument was rejected. First, the Board had only noted the similarity between the tests in those provisions and the standard which it articulated. More importantly, the standard of deference followed through on, and was consistent with, the labour relations policy articulated in Yarrow Lodge Ltd., BCLRB No. B444/93. The Employer's argument here was predicated on different policy considerations which had been rejected in Yarrow Lodge, The Employer's second argument, that the Board had fettered its discretion by the articulated standard of deference" was also rejected. A full reading of the decision made it clear that a party can seek to establish legitimate reasons at interest arbitration to depart from a mediator's recommendations. The Employer's leave application was accordingly denied.

Cariboo Friendsllip SOciety; BCLRB No. B244/96 (Reconsideration application dismissed at BCLRB No. B383/96)

This decision concerned a number of unfair labour practice allegations by the HEU which were a continuation of a long series of disputes between the parties: notably unfair labour practices, an inability to achieve a collective agreement after months of bargaining, an inability of the Union to achieve a strike vote, and the fail~re to achieve an agreement through an agreed upon informal process. The Union sought a variety of remedies including the imposition of a first collective agreement.

The Panel dealt at some length with the Board's remedial authority under Section 133 of ~he, C?~e, and. ultimately found that there is JurIsdiction to nnpose a first collective agreement. While Section 55 deals with a very different ~e of situation from the Board's general remedIal powers, its authority under Sectibn 13?n:ust be consistent with and guided by the prmclples of Section 55. The Panel also empha-

sized that Section 55 is much broader than simply the imposition of a first collective agreement - it is a mediation/arbitration process which gives the parties an opportunity to bargain with the assistance of a mediator. If a settlement is not reached, the mediator will provide written recommendations and, if .those recommendations .do not in turn lead to a settlement, the parties proceed to the Associate Chair (Mediation) who has a broad range of discretion in deciding the next stage of the collective bargaining process, The next step mayor may not be imposition of a collective agreement. Section 55 is not an alternative to the remedial authority of

'the Board under Section 133, and certainly not an alternative which restricts that general remedial authority.

The Panel ultimately decided that it would not exercise its discretion to impose a collective agreement nor impose the Section 55 process on the parties at the present time. It proceeded, however, to make other remedial orders.

Council of Trade Unions

Communications, Energy and Paperworkers Union, BCLRB No. B337/96 Gudicial Review Application Pending)

This decision dealt with the application of CEP for reconsideration of Be and Yukon Couneil of Film Unions et ai, BCLRB No. B448/95 whiCh established a council of trade unions in the film industry under Section 41 of the Code. The CEP made three points in its submission. One, the original panel misinterpreted Section 41 when it created the Joint Council in the absence of any identifiable employer or group of employers. Two, the provisions of Section 41 were not followed. Three, the original panel exceeded its jurisdiction by creating a zone of exclusive jurisdiction.

The reconsideration panel dealt with each of these arguments. It said first the decision of the original panel was a declaration as to the appropriate bargaining agent for the appropriate bargaining unit in major feature film production. No employer is bound by this decision until it decides to engage in major feature film production in B.C., employing a unionized workforce. Once it does, the employer will be identifiable and the Code operates to crystallize the declara-

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tory orders of the original panel. Second, the panel found the original panel did define a proposed unit under Section 41. While the original panel may not have expressly stated that it had completed the requirements of Section 41 (2), it addressed the matters it was required to address under that section, The key argument from the reconsideration panel's perspective was the third, dealing with the grant to the Council of exclusive jurisdiction. In addressing this argument, the reconsideration panel found

. Section 41 pennits the Board, in response to the Minister's direction, to alter the bargaining agent or agents, which have been selected by the employees within a bargaining unit. The focus under Section 41, is to determine the appropriateness of the bargaining agent, not simply the bargaining unit. Even outside this, the Board has the jurisdiction to determine any one bargaining agent will be entitled to represent employees performing a certain type of work: see I.A.M. Lodge 692 v. B.c, Industrial Relations Council (1994) 87 B.C.L.R. (2d) 98 (B.C.C.A.) Ultimately the reconsideration panel concluded the original decision was consistent with the fundamental purposes of Section 41 and Section 2 to provide a stable and effective collective bargaining framework. .

Consolidation of Bargaining Units

Be Rail Ltd., BCLRB No. B427/95 (Reconsideration dismissed at B109/96)

This was an interim decision resulting from an application by the Railway seeking a "partial consolidation" of the Constituent Unions within the Council, as well as elimination of the veto provision in the Council's Constitution. The Panel engaged in a lengthy analysis of the purposes behind imposition of the Council before turning to the legal and evidentiary points whicl). would govern adjudication of the Railway's application.

In summary, the majority determined that the application should be adjudicated having regard to the test for consolidation established in Island Medical Laboratories Ltd., supra. The Board must therefore determine initially whether the current structure of seven Constituent Unions remains appropriate for collective bargaining. Of central relevance to the first step

of this inquiry is whether the Council structu has attained the purposes for whiCh it w' initially imposed. At the risk of ove simplification, the objective of imposing tl Council was to bring about effective collecti· bargaining through an enduring structu which, over time, would see a reduction in cn orientation. A review of the practice and histo of the current collective bargaining scheme ( terms of industrial stability and the rationali, tion of negotiations) is therefore relevant determining whether the current structu remains appropriate. Also relevant are the fi four community of interest factors in the I.M decision - especially the physical and adm istrative structure of the Railway, and the exu of functional integration. The final area for c( sideration in determining continued approF ateness is specific circumstances relating to j

operation of the Railway since 1976, most no bly technological changes which cut across result in a "blurring" of traditional jurisdictio lines within the Council.

If the Railway is able to establish that . current structure containing seven Constitu, Unions under the existing Constitution is longer appropriate, then the Board must del mine what would be an appropriate COUI structure. It is here that the inquiry is broader to consider the final I.M.L. factor; that is, cot: tive bargaining in the industry or sector, ' specifically the experience on the natio railways.

The majority of the Panel also set out the which would be applied in considering the I tion of the Railway's application dealing v elimination of the veto provision in the Co cil's Constitution. The "compelling evider standard established in prior decisions longer remains appropriate given the Boa: willingness to look more readily at collec bargaining relationships where there adverse labour relations consequences. Insh the provision should be examined in light of purposes and objectives which led to imp tion of the Council, with the additional con eration that the Constitution as a whole n provide a reasonable measure of protectiol individual Constituent Unions. It appear well that the veto provision may be inconsis with the majoritarian principle incorpori into the entire 'scheme of the Code.

'ucture it was over-

ag the .lective ucture In craft ~istory .' me (in naliza- " 'ant in ucture ~e first ,LM.L. "dmin-, extent or conpropri-; to the ;t notaross or ictional

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Finally; the majority indicated that it was rea. sonable to hold that the Board should first consider altering the process of collective bargaining (i.e.' chan,ging the Con~ti~utio.n), b~fore altering the structure of bargalrung (I.e., a partial consolidation" of Constituent Unions). The former seems less intrusive in terms of altering long-standing collective bargaining rights.

One of the Vice Chairs on the Panel issued a partial dissent, disagreeing with two related aspects of the majority's reasons. The minority would first determine whether the Council is capable, given its present Constitution and configuration, of fulfilling the purpose for which it was established. If not, then the Board would examine the cause of this failure to determine what responsive changes would be addressed. The minority also found it premature to apply the LM.L. rules, it not yet being established that the Constituent Unions operate independently and separately in a manner analogous to separi,lte bargaining units.

:Be Rail Ltd., BCLRB No. B109/96

This was a reconsideration decision which upheld the Board's majority decision in BCLRB No.B427/95 dealing with the legal tests which will apply to the Railway's application for "partial consolidation" of Constituent Unions within the council of trade unions at the Railway, as well as an application to amend the Council's Constitution. Before dealing with the reconsideration application, the Panel examined and confirmed the Board's jurisdiction to review the Council structure and Constitution.

In a letter decision issued later in the week (BCLRB No. B114/96), a separate Panel dealing .with' the merits of the Railway's application held that it would leave the remedy of "partial ~onsolidation" to a final phase of the proceedmg. The Board will first consider whether changes to the Constitution recently proposed by the. Council will be sufficient to respond to any current problems demonstrated by the Railway. That hearing has now been completed although a decision has not yet been rendered .

Pacific Press, BCLRB No. B146/96

This lengthy .decision, by a three Vice Chair Panel of the Board, dealt with an application by

the Employer under Section 142 of the Code to consolidate seven bargaining units representing approximately 1400 employees into a single unit. The decision begins with a review of the law and policy relating to consolidation, as more particularly set out in Island Medical Laboratories Ltd., supra, al)d B .. C. Rail Ltd., BCLRB No. B427/95, (Reconsideration denied at BCLRB No. Bl09/96). The Panel stated that the specific focus of its inquiry was whether the current bargaining unit and collective bargaining structure at Pacific Press creates potential or' actual industrial instability. It found concerns with respect to both collective agreement administration and collective bargaining. In regard to the former, its concerns were with respect to ~he jurisdictional disputes and the inflexibility in adapting to the continuing technological change and telescoping of employee duties. In terms of collective bargaining, the Panel's concerns were with respect to the potential for industrial instability through whipsawing, as well as the history of strikes. Those conClirns were explained in detail, and were all seen as relating in a fundamental and significant way to the key purposes set out in Section 2 (1) (b) and (d) of the Code. On the basis of industrial instability, the Panel found the situation at Pacific Press to be "a clear instance of an inappropriate bargaining unit structure". It noted, however, that iIi. general the Board will not need to find the same degree of industrial instability and inappropriateness which existed here before restructuring existing, multiple bargaining units. The Panel directed that application would proceed to a second and final stage; i.e. a determination of what would constitute an appropriate bargaining tmit.

Pacific Press, BCLRB No. B292/96 (Application for Leave for Reconsideration pending)

This is a continuation of the above-noted application by the Employer under Section 142 seeking consolidation of the existing seven bargaining units into a single bargaining unit.

The decision is notable for several reasons. One is the description of the A.D.R. process that was used in the course of these proceedings. That process was described by the Panel:

... we adopted A.D.R. in the present matter as a means of getting to the real sub-

.... ' i I I, ')


stance of the labour relations matters at issue in a less formal and more interactive way. For instance, within the bounds of natural justice· (Le., subject to the further evidence and argument in the proceedings), we were candid with the parties about our tentative views based on what we had heard to date, in light of the Board's policies. We then asked. that the parties be equally candid and forthright in light of their true interests (Le., not just their positions in the proceedings). To their great credit, and to everyone's benefit, they were. We were thus able to adopt a meaningful, informal procedure which attended to the real concerns in the matter - both the parties' and the Board's. This allowed for the true airing of the real concerns. The AD.R. approach thus produced a hearing which was both fair and effective in the context of these fundamental issues. As well, the overall AD.R. process which the parties effectively engaged in, is itself an example of the "co-operative participation" noted in Section 2 (1) (b) of the Code and the contemporary way in which labour relations should be conducted. A second notable element in this decision is

the description of the Board's approach to consolidation applications. The Panel draws on the reasoning in Is/and Medical Laboratories to emphasize that consolidation applications are no longer to be seen as exceptional or even unusual in nature. Rather, the test is now to be found in the linkage between the existence of adverse labour relations consequences and the bargaining unit structure. Further, the Panel notes that where such a linkage is established the remedy itself will not be artificially restricted. To the, contrary the remedy will arise from the nature of the problem as demonstrated on the facts. It may require only limited changes to create a new "appropriate unit" or it may involve a more extensive move to create a "more appropriate" or even "most appropriate . unif',

In arriving at its determination as to the appropriate remedy the Board will pay careful attention to the words of Section 2 of the Code. In particular the Panel pointed to words and phrases in Section 2 such as" co-operative par-

ticipation", "orderly, constructive and expE tious" and the "use of mediation as a disp resolution mechanism". As well the Pa pointed to the balance between access to coli tive bargaining and industrial stability c cems. Furthet; the Board advised that, si cases such as this and the recent decisions c cerning B.C. Rail have now established the p: ciples to be applied in consolidation mat unions need to be aware that in the future bi cated processes for such applications may be used. Instead the parties should expec deal with the various aspects of consolida applications in a single proceeding.

Finally,. on the facts of the case, and in part lar the endorsement by five of the affe< unions of support for a single bargaining \ the Board granted the consolidation request ordered that a single bargaining unit config tion be established.

The Prince George Citizen, A Division of Southam Inc., BCLRB No. B350/96

This decision provided reasons for the Pal determination in BCLRB No. B332/96 to gr, consolidation of two bargaining units requ€ by the CEP Local 868. The Union had for s time represented a bargaining unit at The Pl George Citizen and had more recently been tified for Prince George This Week (both 11'

papers were divisions of Southam Inc.) representational rights were not in issue because both bargaining units were represe by the same trade union) the Panel found the. appropriate test was to consider first appropria teness of the entire collective bar) ing structure; and second, whether a ' labour relations purpose existed, keepir mind the emphasis on indush'ial stability. ther, the Panel noted that the Board wi! grant a consolidation application if a pal seeking an improper bargaining advantagl such advantage was being sought here b Union and a labour relations purpose WOll

served by the consolidation. Specific i, relating to P.G.T.W. could be dealt with a bargaining table and to continue with tw< gaining units created the potential for indt instability. Additionally,. a review of the; community of interest factors confirmec' the interests of all employees could be al modated in one collective agreement.

r

,xpedi-lispute Panel collec-y con-, since IS con-eprin-natters ~ bifur-.ay not Ject to idation

.articu-ffected .g unit, "stand figura-

of

Panel's grant a luested . rsome ,Prince ,encet-lnews-c.). As Ie (i.e., $ented ad that rst, the argain-I valid ling in ty. Fur-~ill not larty is 1ge.No by the

)uld be issues at one

IVO bar-iustrial ~ I.M.L. 2d that accom-


INDUSTRIAL CONFLICT

Adjustment plan

Foremost Foods Ltd., BCLRB No. B169/96

The Employer applied under Section 78 of the Code for a last offer vote of a proposed amended collective agreement with the UFCW, ·Locat 2000. In the alternative,· the Employer alleged that the Union had failed to meet in good faith to develop an adjustment plan under Section 54 in discussions precipitated by an announced plant closure. The Panel found on the facts that the discussions between the parties had been under Section 54 and had not "crossed the-line" into collective bargaining as contemplated in Part 7 of the Code. Because of that, neither party had the ability to resort to economic sanctions such that the Employer could utilize the last offer vote provision. The Panel also found that the Union had not violated Section 54 as alleged by the Employer.

Foremost Foods Ltd., BCLRB No. B236/96

The UFCW, Local 2000 applied under Section 57 (2) of the Code alleging that the Employer had engaged in an illegal lockout when it ceased production at its Burnaby dairy plant. The closure followed discussions between the parties under Section 54 of the Code (adjustment plan), and the issue was whether the subjective element of the definition of "lockout" had been met. On the facts, the Panel concluded that the cessation of productionwas not done to compel employees to agree to. conditions of employment. The cessation was unequivocal, and even were the Union to agree to amendments proposed by the Employer to the collective agreement during the Section 54 discussions, production would not recommence at the plant.

The Panel went on to observe that this appeared to be the first case in which an illegal l~ckou~ complaint followed upon Section 54 dlscusslOns. That provision is a substantive and important addition to the Code. An adjustment plan under Section 54 may include considerationofalternatives to the measure proposed by -t~e· e~ployer, including amendment of proviSlOns III a collective agreement. When faced

with a potential cessation of production, parties are likely to explore amendments to a collective agreement in an effort to keep the operation in production. The Board encourages parties to explore those possibilities and, as in the present case, it will not allow Section 54 discussions to transform a cessation of production into an illegal lockout. Were the Board to hold that exploring amendments to a collective agreement in an effort to keep an operation in production could subsequently lay the basis for such a complaint, then employers would be discouraged from engaging in those good faith discussions.

Strike Notice

SGS Canada Inc., BCLRB No. B346/96

The Employer applied under Section 133 of the Code seeking a declaration that the ILWU, Local 518 had engaged in illegal strike activity when it failed to comply with the statutory notice obligations set out in Section 60(3). After reviewing prior jurisprudence, the Panel found that certain basic requirements must be followed under the present legislative sche~e:

1. Section 60 (3) (b) (i) states the employer must receive written notice "that the employees are going on strike". The notice must contain a clear statement in this regard because of the important repercussions for both parties to the dispute.

2. The notice should reference the 72-hour . waiting period so that it is clear that the strike activity may commence at some time in the future.

3. The written notice must be filed with the Board and served on the employer.

4. The 72-hour waiting period commences from the time the written notice was "(A) filed with the board, and (B) served on the employer".

5. The required components of clear notice being served and the 72-hour waiting period commencing after receipt of the notice involves two parties (i.e. the Board and the employer). The union must ensure that both the employer and the Board receive the notice. Given the Board's requirements regarding filing of the notice,

64 LABOUR RELATIONS BoARD - 1996 ANNuAL ~BPORT

as set out in the Practice. Guideline, the Board confirms receipt and notes the time that the 72-hour period commenced.

On the facts, the Panel found that a letter given by the Union did not constitute proper strike notice. More particularly, the letter did not clearly state that employees were going on strike, but merely advised the Employer that the Union had "voted in favour of strike action" and that the Union would be advising the Board "of the results of the strike ballot". There was additionally no reference to the 72-hour waiting period. The Panel also rejected an argument by the Union that the order sought by the Employer should not be granted based on equitable principles. The declaration sought by the Employer was therefore granted and, as further requested by the Employer, the Panel's decision was filed in court under Section 135 of the Code.

Replacement Workers

Glenwood Label and Box Mfg. Ltd., BCLRB No. B300/96

This was an application under Section 68 of" the Code. In a previous decision dealing with the same parties and sequence of incidents the Board had ordered two persons who had been engaged after notice to bargain to refrain from doing bargaining unit work. In this decision the Panel did not have sufficient evidence to decide if newly engaged employees were doing the . work of two previously engaged managers in order to allow the managers to do bargaining unit work. It did however conclude that there was sufficient evidence to indicate that an "after engaged" individual was ·doing the work of a "previously engaged" employee thus allowing the "previously engaged" employee to do some bargaining unit work. After commenting that the Board's jurisprudence has held that there is no de minimus threshold under Section 68 the Panel found this "backfilling" to be prohibited.

The Panel also considered allegations under Sections 11 and 27 concerning bargaining in bad faith. The Panel notes that an employer is entitled. to communicate with its employees during collective bargaining as long as its actions do not constitute an attempt to bargain directly with the employees or to subvert the role of the union as sole bargaining agent, and

as long as there is no coercion or intimidat There is nothing illegal in an employer isst bulletins to its employees in order to repo! what has occurred in negotiating meetil However, an employer breaches its duty to . gain in good faith if it presents its bargait position to employees prior to presenting the union and giving the union an opportu to discuss the offer. After examining var Employer communications to the ·emplo during the course of collective bargaining Panel concluded that in one instance Employer had violated the duty to bargai good faith by communicating direct1-employees notice of a lockout and of a limit on the Employer's contract offer wit having first communicated that informatic the Union.

MEDIATION AND DISPUTE RESOLUTION

Admissibility of Mediator's Statements

Overwaitea Food Group, BCLRB No. B2j

This decision ~oncems a preliminary iss the admissibility of statements made by a 1

ator in the course of negotiations. The EmF sought to rely on its conversation with a rr

. tor made in the absence of the other party negotiations. The Employer wanted to us . evidence to support its position in a di over the meaning of a specific term of th lective agreement that came out of negotiations.

The decision recognizes and· endorSE general application of a privileged basec tection for statements made by mediators course of negotiations. The protection ho is not absolute.

The Panel begins its analysis by notin when parties reach a memorandum of ment through a mediator, either part request that the parties be brought togel review all terms of settlement. Hac occurred in this case the Panel notes tl issue before it may not have arisen. In ou

. the admissibility of statements the provides that a party to collective bar~ can rely on conversations between mem

:Iation .. ssuing 'ort on etings. to bar;aining 19 it to rtunity rarious ,loyees ng the ce the sain in :tly to a time vithout tion to

s

278/96

isue on t meditployer mediario the· tse this :Iispute he col-

those

;es the ~d prosin the )wever

ng that· agree

ty can ,ther to d that hat the ttlining Panel

;aining bel'S of


its pargaining committee within their own caucus, caucus notes, or other documents arising from the caucus including documents given to or received from a mediator in the course of negotiations, provided that the mediator has not peen involved in the preparation of such documents. After noting the preceding use of information arising from caucus activities where a mediator was present the Panel stated:.

"A wimess' testimony of caucus discussions rnayinclude references to comments made by the mediator. Where the evidence effectively includes a mediator's comments, or the role of the mediator in negotiations, it is inadmissiple. It may Pe difficult for the arbitrator to assess whether the evidence sufficiently excludes the mediator without hearing the evidence. Section 146 (3) of the Code compels an arbitrator to err on· the side of caution in permitting the evi~ dence ill question to be given by a party."

ARBITRATION PROCEDURES

Adjournments

Malaspina Universii:1j College, BCLRB No. B333/96 .

In this application the Employer sought review of an interim award by an arbitrator which had denied an application by the Employer to adjourn an on-going hearing on a posting grievance. Section 92 (1) (a) of the Code gi,;,es an arbitrator discretion to grant an

.adJournment of an arbitration hearing. The Board has consistently maintained a restrictive approach with respect to the review of preliminary. rulings prior to the publication of a final award of an arbitrator. The Panel notes the Boa~d :will entertain applications for review of prel.nnmary procedural or evidentiary rulings ~ Cll'c~tances where they have a labour relations Impact. outside the particular grievance, where there IS an argument that the arbitration board was without jurisdiction to hear the matter/?f whe.re there is an allegation of a denial of afatrhearmg. In the circumstances of this case the\Board found the' Employer's concerns to be largel~ sp~culative in narure and the application wasc!isnussed.

Use of Extrinsic Evidence

Nanaimo Times Ltd., BCLRB No. B40/96 (Leave for Reconsideration denied at B151/96)

The GCIU, Local 525-M sought review of an arbitration award which had dealt with a transfer of bargaining unit work by the Employer in alleged conh'avention of the collective agreement. The Union's primary ground of review was that the arbitrator violated the principles expressed or implied in the Code by his use of extrinsic evidence. A three-person Panel of the Board took the opportunity "to provide clear guidance to the community" by confirming the Board's approach when reviewing an arbitrator's use of extrinsic evidence. It noted that the correct approach was long ago set out in University of British Columbia, BCLRB No. 42/76, but that some decisions since have at times been advanced as representing a departure from those principles. The fundamental point is that arbitrators approach their interpretative task with a full appreciation of the' circumstances relevant to disputed contract language. There is no requirement or precondition that a party seeking to adduce extrinsic evidence first establish a bona fide doubt or ambiguity on the face of the collective agreement. Subject to relevancy, an arbitrator will accept. the evidence and is then able to consider both the language of the disputed provision and the extrinsic evidence when determining whethex there is any doubt about the language. The arbitrator may then determine how, if at all, the extrinsic evidence is of assistance. Where there is no ambiguity, the evidence is properly disregarded; alternatively, where ambiguity is found, the evidence may be used as an aid to interpretation. It is not the Board's role to second guess the arbitrator's assessment of ambiguity, the weight attached to the extrinsic evidence, or the interpretation of the collective agreement in light of the extrinsic evidence. In this case, the arbitrator did not err in his use of exh'insic evidence. The Panel also rejected an argument by the Union that the award was not based on a reasoned analysis of the issues. The Union's application was therefore dismissed.


City of Ke!owna, BCLRB No. B253/96 (Leave for Reconsideration denied at BCLRB No. B400/96)

The Employer successfully applied under Section 99 of the Code for review of an arbitration award with CUPE, Local 338. The Panel found that the arbitrator had failed to properly apply the principles respecting the use of extrinsic evidence as set out in University of British Columbia, BCLRB No. B42/76, and more recently confirmed in Nanaimo Times Ltd., BCLRB No. B40/96. The Panel then turned to consider whether the matter could be remitted back to the arbitrator in light of comments by the BC Supreme Court in B.c. Nurses' Union (1996), 14 B.C.L.R. (3d) 363. This matter was not without some difficulty. However, the expeditious and conclusive handling of disputes are key values and needs in labour relations. It is consistent with those values to have a broad policy of referring back to an original arbitrator. As well, in the present matter, the Panel noted the Supreme Court's comments regarding the appropriateness of referring back where there has been a "wrongful legal test" applied. As a result, the matter was referred back to the original arbitrator here for determination on the basis of the proper interpretative approach to exh'insic evidence.

As an aside, the Panel went on to comment on the Employer's point that the dispute was heard under Section 104 of the Code. Even though a dispute may arise in an expedited context and be determined through the expedited, non-consensual provisions in Section 104 of the Code, from a practical perspective the interpretation rendered may be of a significant and long lasting nature. That may lead one to consider whether awards rendered in an expedited, non-consensual context should be accorded the same weight and "precedential" value as arbitral decisions rendered in a consen- . sual, non-expedited context. The possibility of an expedited, non-consensual Section 104 award being accorded less "precedential" value may buttress the broader approach of referral back to the original arbitrator. These comments were made as an aside, as at least initially it will be left to the arbitral community to determine what precedential value will be given to expedited, non-consensual decisions under Section 104 of the Code.

Conflicting Testimony

Canadian Heating Products, BCLRB No. B297/96

This was an application under Section 99 1: the Employer asserting that it had been denie a fail' hearing and that the arbitration awat was inconsistent with the principles expressE or implied in the Code because the arbih'at< failed to make a decision between the credibili of two diametrically opposed witnesses on tl essential dispute in the hearing.

The Panel, after carefully reviewing the juri prudence in the area, sets out the reasoning be used in coming to terrns with conflicru testimony of this nature:

A trier of fact, including an arbitrator, must make every effort to determine the "facts" of a case which will enable him 01' her to resolve the issue in dispute between the parties. In pursuit of that goal, the trier of fact must weigh the evidence and testimony presented, applying the tests mandated by the court in Faryna v. Chorny. The testimony of witnesses must be in harmony with the preponderance of probabilities which a practical and informed person would readily recognize as reasonable in that place and in those conditions. In most cases, no matter how difficult the task may be, a trier will likely be able to· ascertain the critical facts. But in some rare 01

exceptional cases the probabilities may bE so evenly divided as to preclude a rea· soned determination of where the trutr lies. In such cases it is proper for the trier OJ fact to fall back on onus to determine thE outcome of the case. (pp. 12-13)

The Panel then applied this reasoning to facts of the case at hand and concluded that arbitrator had correctly dealt with the c<

After determining that each witness was credible as the other, having taken into acco and weighed the relevant factors and pro bilities, the arbitrator was entitled to rely onus to determine the outcome of the case.

I.

l 99 by denied award )ressed )itrator :libility on the

.e juris, :ling to flicting

nust lets" er to l the er of testinanJrny. . har:oba. per\able .8. In ~ task lscerre or \y be rea

truth ier of e the

g to the that the \e case. was as account proba

rely on :ase.


The Panel further noted that this reasoning is additionally supportable in a labour relations context. Rather than having to arbitrarily call one of the witnesses a liar the matter is decided on: onus, thus avoiding a potentially poisonous outcome for the work environment.

MISCELLANEOUS/PRACTICE & PROCEDURE

Disclosure of Union Financial Statements

Michael Bnjck, BCLRB LD No. B170/96

The Applicant sought financial records of the C1SIWU for the years 1992 and'1993 under Section 151 of the Code. The request was opposed by the Union on various grounds, including the fact that the Applicant had ceased to be a member. The Panel rejected this argument. Given the purpose of Section 151, it is unreasonable to expect that an individual tequesting financial information must be a member at the time the orgaruzation responds to the request or when the Board processes an application under Section 151. An individual should be entitled to the financial information required by that provision for the period of time that the individual was a member, regardless of their status at the time of the request. The Applicant here was found to have been a member of the Union for the years 1992 and 1993. He was therefore entitled to the financial information and the Panel gave directionsas" to the nature of the information required. Tl;te Panel retained jurisdiction in the event of any difficulties, including whether the statements provided by the Union complied with the requirements of the Code.

IRO Reports

NRS Block Bros. Realty Ltd., BCLRB L.O. No. B92/96

As part of leave and reconsideration proceedings in respect of BCLRB No. B209/95, the reconsideration panel directed a supplemental investigation by an S10 into membership evidence. The Employer (which was seeking reconsideration) then opposed reliance on the supplemental investigation and, additionally, took the position that no viva voce evidence could be called to address the matters investigated. The reconsideration panel commented on the use of reports received under Section 124 (2) of the Code which are now disclosed to the parties. These reports are hearsay in nature. Accordingly, the Board does not generally rely on their contents as evidence in a proceeding without disclosing them to the parties and giving the parties an opportunity to make submissions. (One obvious exception to this practice is the Board's reliance on reports conceming confidential membership records.) Aspects of a report may properly be relied upon by the Board where there is an express agreement by the parties to do so, or where certain matters are not disputed by parties in their submissions . The supplemental report in this case addressed the "process" concerns which might have caused the reconsideration panel to interfere with the original decision. At the same time, the Employer advanced no additional evidence or other basis to challenge the membership evidence relied upon by the original panel. There were accordingly no longer any grounds advanced by the Employer which would warrant setting aside the Union's certification, and the reconsideration application was dismissed.

VI. Judicial Review


VI. Judicial Review CQS~S D~cided in 1996

.. The following are summaries of court cases qecided in 1996 which reviewed decisions or proceedings of the Board or otherwise involved the Board. These summaries are provided for g~rteral information only and should not be viewed as interpretations by the Board.

t .. United Food .and Commercial Workers Ullion, Local 1518 v. Labour Relations Board of British Columbia, North Shore Home Support Services Society, B.C. Government and Services Employees' Union, (Q3February 1996) Vancouver A953484/ A953031 (B.C.S.C) Clancy, J. , In this case, the tJFCW applied for judicial

. review of the Board's decision in BCLRB No. , 8307/95, which dismissed an unfair labour p~;~;.~~;complaint brought by the UFCW .r the BCGEU's conduct during an 9figarlizi,ng campaign, and BCLRB No.

had dismissed the UFCW's , .,' . for reconsideration of the origi-

decision. ' '.·"·ZT. .hltlle1Jnl:air labour practice complaint the

made several allegations against including an allegation that

·.·.i~~~:~;~l~~~~ told employees that if they ff; BCGEU membership cards there

;· .. ·.yy'J.UJLU be a certification vote and the ;;!k~~;~~J~ was that the vote would be

.; the BCGEU and the UFCW. The 'L'!i1~o"u:<;I requested particulars of the UFCW

These were provided for some but not the above-noted one. The

then dismissed the complaint oral hearing. For the purposes of the original panel assumed the

;Y{,it~,~t:sL .. ~llegedby the UFCW were accurate but !h<;l·.that Ithe allegations did not constitute

?\,ead.!l.o.ftl1le Code. The original panel con-

:i;;t~.~~~1rr~' the alleged representation .... a vote might have been a mis-

representation but that none of the employees were prejudiced. Additionally, apart from the lack of particulars with respect to that allegation, there was nothing from which the employees could have inferred the UFCW would also be on the ballot. The Board upheld this decision on reconsideration.

On judicial review the UFCW argued that the allegations of fact that the original panel accepted as accurate included'the inference, arising from the BCGEU's representation regarding a vote, that the UFCW would be on the ballot. Consequently, the UFCW argued the original decision was patently unreasonable in finding that there was nothing in the alleged statements from which the employees could have inferred that the UFCW would be on the ballot.

The Court rejected this argument, noting that the inference could not be drawn from the allegation and that further particulars would be required before the inference could be drawn. By accepting the facts as alleged the Vice Chair could not be taken to have accepted the allegation that the proper inference was that both unions would appear .on the ballot. The reference to the inference was argument and not an allegation of fact. In the Court's view the absence of particulars justified the conclusion of the Vice Chair and the decision was not patently tmreasonable Additionally, noting the expertise of the Board, the Court declined to interfere with the original panel's finding that none of the employees had been prejudiced by the representation that there would be a vote.

The UFCW also argued on judicial review that there was a breach of, natural justice because there was no oral hearing where the UFCW could have called evidence to prove its allegation and thereby support the

I I !

i: r I.:

I ! ~


inference it had asked the original panel to draw. The Court dismissed this argument stating that the Board was not required to hold a hearing to invite the UFCW to call evidence orally when it had not taken advantage of the opportunity to do so in writing.

2. Board of School Trtlstees of School District No. 46 (Sullshine Coast) v. British Columbia Labour Relations Board, Sunshille Coast Teachers' Association alld Carl Robert Bjornson, (29 March 1996) Vancouver A950050 (B.C.S.c.) Bouck, J. (Corrigenda issued 2 April and May 22, 1996)

In this petition, the Employer School Board applied to the Court for review of decisions of the Board (BCLRB No. BI00/93, application for reconsideration denied at BCLRB No. B389/94) which had set aside an arbitration award that upheld the 1991 dismissal of a teacher.

Under" Section 99 of the Labour Relations Code an arbitration board's decision may be set aside by the Board if:

(a) a party to the arbih'ation has been or is likely to be denied a fair hearing; or

(b) the decision or award of the arbitration board is inconsistent with the principles expressed or implied in the Code or another Act dealing with labour relations.

In its reasons the Court notes that the Board did not specifically state which of the above noted factors had been misconstrued by the arbitration board. In the Court's view the Board appeared to find that the dismissed employee did not get a fair hearing because the arbitration board misdirected itself by interpreting its function as conducting a hearing de novo and the arbitration board erred in its analysis of some evidence and consequently made errors of fact.

The Court noted that the Board has a duty " to give some deference to the reasons of an arbitration board and should not concentrate on them in a relentless pursuit of errol'. The Court also advised that where the arbitration award has laid out the propel' standard of proof the Board should assume it was cor-

"rectly applied absent overwhelming evidence to the contrary. In the Court's view, without proof of "fatal error" by the arbitration board the Board had no right to change the findings of fact made by the arbitration board. Additionally, the Court noted that where an arbitration board is found to have complied with the express provisions of the Code it would be improper to find it breached any implied provision of the Code.

The Court found that the Board did not have a valid basis for overturning the arbitration award and, as a result, the "Board was not within its jurisdiction to set aside the arbitration award. Accordingly, the Court set aside the decisions of the Board and reinstated the decision of the arbitration board which had upheld the dismissal.

An appeal of the Court's decision has been filed with the Court of Appeal by the Union.

3. Pacific Press Limited v. Commullications, Energy and Paper Workers Union of em/ada, Local 226 et aI, (9 April 1996) Vancouver CA 19999 (B.C.C.A.) Gibbs, J.A. concurred in by Prowse, J.A. and Proudfoot J.A.

This appeal was from a decision of the B.C. Supreme Court which had set aside an arbitration award concerning the interpretation of the collective agreement between the parties. The Supreme Court judge had set aside the award on the basis that the arbitrator's interpretation was patently unreasonable and therefore exceeded the arbitrator's jurisdiction. The somewhat unique aspect of this case was that the Employer sought judicial review of the arbitration award on jurisdictional grounds by proceeding directly to the Supreme Court without first having raised the jurisdictional arguments before the Board under Section 99 of the Code. The Supreme Court judge determined that the review of an arbitration award for jurisdictional error is a matter within the jurisdiction of the Supreme Court and not within the Board's jurisdiction. The Labour Relations Board was not aware of the Supreme Court proceedings and, consequently, did not participate at that level.


At the Court of Appeal, the I,abour Relations Board applied for, and was granted standing to intervene. The Union advanced three grouncts of appeal, arguing that the Supreme Court erred:

(i) in finding that the Court has jurisdiction to review the arbitrator's decision;

(ii) if the Court has jurisdiction, in exercising that jurisdiction when it was neither appropriate nor necessary to do so; and

(iii) in any event, in finding that the arbitrator's interpretation of the collective agreement was patently unreasonc able.

The Court of Appeal dealt with the grounds of appeal in reverse order, concluding that the Supreme Court judge erred in finding the arbitrator's interpretation of the collective agreement to be patently unreasonable and set aside the trial judgment. As this ground was determinative of the appeal, the Court found that it was unnecessary to comment on the other grounds dealing with the jurisdictions of the Supreme Court and the Labour Relations Board to review arbitration awards for jurisdictional error.

The Employer's application for leave to appeal to the Supreme Court of Canada was dismissed on December 12, 1996. The Board had been granted standing to intervene in the leave application.

4. Westbank First Nation, also known as the Westbank Indian Band as represented by Robert Louie,·Chief, Lam; Derrickson, Clarence Cough, Harold Derickson, and Carol Derickson, Councillors, alld the Westballk First Natioll Development Co. Ltd., formerly kllown as the Westballk Illdiall Balld Development Compally Ltd. v. British Columbia Labour Relations Board, British Columbia Government Employees' Unioll, alld British Columbia Nurses' Unioll (18 April 1996) Vancouver A954358 (B.C.S.C) Levine J. (now reported at 38 Admin. L.R. (2d) 89).

This application for judicial review arose out of certification applications by the BCNU and the BCGEU to represent employees at a long term care facility located on the reserve of the Westbank Indian Band. The long term care facility was operated by the Westbank First Nation Development Co. Ltd., which was owned by the Chief and council of the Band on behalf of the Band membership. An objection was made to the certification applications on the ground that Pine Acres Home was within federal jurisdiction. In BCLRB No. B314/95, the Board concluded that Pine Acres Home was within provincial jurisdiction and that the Board had jurisdiction to consider the applications for certification. The Employer's application for leave for reconsideration on this determination was denied (BCLRB No. B337/95) and the certifications were granted.

,

Several months later Westbank ,First Nation and the Westbank First Nation Devel·opment Co. Ltd. applied for judicial review and in their petition recited alleged facts that had not been put before the Board in the Board proceedings. After filing the petition, the petitioners also made an application to the Board pursuant to Section 142 seeking cancellation of the certifications on jurisdictional grounds and relying on the newly stated alleged facts. The Section 142 application was still outstanding at the time the petition came on for hearing by the Court.

At the hearing of the petition, the Board made a preliminary objection that the Court should not undertake the judicial review because the petitioners had and were pursuing a more appropriate remedy with the Section 142 application. The .Court found that the application to the Board for cancellation of the certifications was an adequate alternative remedy to the Court's review, at that stage, of the constitutional question of the Board's jurisdiction and dismissed the petition. The Petitioner subsequently filed an appeal with the British Columbia Court of Appeal.

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5. International Union of Operating Engineers, Local 882 v. BtlYllaby Hospital Society and Hospital Employees Union and British Columbia Labour Relations Board (14 June 1996) Vancouver A960772 (B.C.S.C) Edwards, J.

This judicial review application involved decisions of the Board (BCLRB No. B353/95, leave denied at BCLRB No. B441/95) which had determined that two employee positions, plumber and refrigeration mechanic, , were included in the HEU bargaining unit. ' The basis for the judicial review filed by the IUOE were alleged breaches of procedural fairness on the grounds that the Board failed to hold an oral hearing that it indicated would be' held before making the original decision or, alternatively, the Board failed to advise the parties it would not hold an oral hearing and did not ask for further submissions and that the Board failed to answer the question which was before it for determination; i.e:, whether the Employer had breached the collective agreement, but rather had embarked on an inquiry which was not before it, namely what the appropriate assignment of positions should be.

In rendering its decision, the Court makes it clear that Section 139 of the Code confers jurisdiction on the Board to make the ultimate determination that it made and that neither the original panel nor the reconsideration panel were required to hold an oral hearing. However, the Court found that while there was no reason the Board could not, after proper notice to the parties, decide the case on the basis it did (regardless of how the parties chose to present the issue) it was arguable, on the basis of the record, that the parties were operating under the misapprehension that there would be a hearing on ' the application as formulated by the HEU and the original panel committed a breach of procedural fairness by deciding the case on the basis it did without first disabusing the parties of any misapprehension they may had had about how it might proceed.

Notwithstanding the breach of procedural fairness at first instance, the Court dismissed the judicial review petition finding that the application for leave for reconsideration provided the IUOE with a full opportunity to persuade the Board that the original panel was wrong to decide the case on the basis it did. That opportunity overcame the lack of procedural fairness in the original panel rendering its' decision without first providing the parties with opportunity to deal with the issue of the appropriate approach to the application. The fact that the reconsideration Panel did not accept the IUOE's submission did not permit it to revive its claim on judicial review that the procedure of the original panel was unfair and was not in itself a basis for judicial review.

An appeal of the Court's decision has been filed with the Court of Appeal by the IUOE.

6. Weyerhaeuser Canada Ltd. v. Industrial Wood and Allied Workers of Canada, CLC and Local Union Number 1-417 and the Labour Relations Board of British Columbia (26 November 1996) Vancouver Registry A962016 (B.C.S.C) Edwards, J.

This judicial review application involved a series of decisions arising from a variance application by the Union to include dependent contractor log haulers in an existing certification at the Vavenby division of the Employer (see BCLRB Nos. B237/95, B64/96, B129/96, B188/96, B275/96, B306/96, B348/96). The Employer alleged a number of errors had been made by the Board in its consideration of the factors which had led to the Board's finding that the log haulers were dependent contractors employed by the Employer' and granting a variance of the Union's certification.

The Court determined that the question of whether log haulers were dependent contractors and whether they should be included in the bargaining unit was within the jurisdiction of the Board and, accordingly, the question before the Court was whether the Board had exceeded its jUrisdiction by acting in a patently unreasonable


manner. The Court dismissed the Employer's allegations that a series of procedural errors had precluded the Employer from effectively cross-examining witnesses and resulted in a denial of natural justice and found that there was no reviewable error in the Board's treatment of various considerations and facts which had been considered by the Board in its determinations. The Court further held that the Board's inclusion of certain earnings in the calculation of income; the consideration of external regulations such as WCB regulations in determining who was the employer of the dependent contractors and the determination that a specific named individual be included in the bargaining unit were not patently unreasonable. The Court concluded that individually and cumulatively the decisions of the Board were not patently unreasonable and the application was dismissed.

7. The Governor and Company of Adventurers of England Trading into Hudson's Bay, doing business as The Bay, also known as Hudson's Bay Company v. British Columbia Labour Relations Board and TIle United Steelworkers of America, Local Union 898 (19 December, 1996) Vancouver Registry C962861 (B.C.S.C) Henderson, J.

This judicial review application involved a challenge by the Employer to the imposition of a first collective agreement by the Board, acting as an interest arbitrator, pursuant to Section 55 of the Code. The decisions under review by the Court, BCLRB No. B309/95 (upheld on reconsideration at B62/96) had imposed a first collective agreement which, without alteration, embodied recommenda

. tions made by a Board mediator pursuant to Section 55 (1).

On judicial review the Employer argued that it was entitled under Section 55 of the Code to an arbitration and the Board, by adopting the approach it did, had failed to conduct an arbitration. The Employer submitted to the Court that the Board so fettered its discretion that it conducted nothing more that a review of the mediator's decision and,

in effect, the arbitration was conducted by the mediator and reviewed by the Board.

After reviewing the concepts of arbitration, collective bargaining, interest arbitration, the purposes of the Code and the expertise of the Board, the Court concluded that the question of what· degree an interest arbitrator may allow himself or herself to be influenced by the recommendations of a mediator is a question the Board is uniquely qualified to answer because it falls within the core of the Board's expertise, and the interrelationship between mediation and arbitration under Section 55 and the respective roles of a mediator and an interest arbitrator are matters which the Legislature intended should be decided by the Board. Consequently, the Board's decision could only be set aside if it was found to be patently unreasonable.

The Court held that the Board's policy of . interest arbitrator's showing deference to mediator's recommendations, while acknowledging that the recommendations can be departed from if they are inconsistent with principles found in the Code or with the policy enunciated in Yarrow Lodge if they are founded upon a mistake of fact or if new circumstances have had a material impact on one of the parties, was not unreasonable. In the Court's view, this policy advanced the objects of the legislation and was in keeping with the informality surrounding the interest .arbitration process. The Court further noted that the rule that a decision-making authority may not fetter its discretion by the adoption of an inflexible policy cannot, in this context mean that the interest arbitrator must disregard the mediator's recommendations or view them as just another piece of evidence. As long as each party is given an opportunity to present its evidence and arguments and the interest arbitrator keeps an open mind.to the possibility that the mediator may have erred, there has been a fair hearing and the arbitrator has exercised the jurisdiction conferred by Section 55. As a result, the judicial review petition was dismissed.

[The time limit for filing an appeal from the decision of the Supreme Court had not yet expired by the end of 1996.]

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Applications for Judicial Review which were heard by the Court in J 996 and decisions are pending.

1. Health Employers Association of British Columbia v. British Columbia Nurses' Union, Hospital Employees Union, Health Sciences Association of British Columbia, International Union of Operati1lg Engineers, Local 882, British Columbia Government and Service Employees' Union and British Columbia Labour Relations Board (Application for Judicial Review of BCLRB Nos. B123/96 and B136/96).

2. Willy Payne v. The Labour Relations Board of British Columbia, British Columbia Government & Service Employees Union a1ld Her Majesty' the Queen in Right of the Province of British Columbia (Application for Judicial Review of BCLRB Nos. B21/94 and B92/94).

Applications for Judicial Review or Appeals filed in 1995 and 1996 and not yet heard by the Court

1. United Food and Commercial Workers Local 1518 v. KMart Canada Ltd. and Labour Relations Boa,rd of British Columbia (Appeal to the Court of Appeal of British Columbia from the Supreme Court of British Columbia from the judgment of the Honourable Madam Justice Huddart pronounced the 8th of November, 1995 (Vancouver Registry A942840).

2. Professional Employees' Association v. The Government of the Province of British Columbia and B.C. Government and Service Employees' Union and Labour Relations Board (Application for Judicial Review of BCLRB Nos. B412/94 and B487/94).

3. British Columbia. Nurses' Union v. The Labour Relations Board of British Columbia and British Columbia Women's Hospital and Health Centre Society (Appeal to the Court of Appeal of

British Columbia from the Supreme Court of British Columbia from the judgment of the Honourable Mr. Justice Hall pronounced the 16th of November 1995 (Vancouver Registry A952822).

4. Pacific Racing Association v. Office and Professional Employees International U1Iion, Local 378 and Rod Germaine, Arbitrator (Application for Judicial Review of a decision of Arbitrator Germaine dated April 29, 1996).

5. Roger Callow v. The British Columbia Labour Relations Board and West Vancouver Teachers' Association and The Board of School 'Il'ustees No. 45 (West Vancouver) and The Attorney General of British Columbia (Application for Judicial Review of BCLRB Nos. B181/96 and B213/96).

6. Rebcon Ironworks Ltd .. v. The Internati01lal Association of Bridge, Structural and Ornamental Iron Workers, Local 97 and The International Union of Operating Engineers, Local 115 and The Labour Relations Board (Application for Judicial Review of BCLRB Nos. B125/96 and B246/96).

7. Royal City Manor Ltd., Royal City Manor Limited Partnership v. British Columbia Nurses' Union and Hospital Employees' Union (Application for Judicial Review of several arbitration awards and various decisions of the Board including BCLRB Nos. B27/94 and B186/96).

8. Communications Energy and Paperworkers Union of Canada v. The British Columbia Labour Relations Board, The British Columbia and Yukon. Council of Film Unions, IATSE Local 891, IATSE Local 669, The Union of Brit ish Columbia Performers, Teamsters Local 115, Directors Guild of Canada British Columbia District COIIIICil, British Columbia Producers Branch (CFPTA) and Various American Producers and OtJiers (Application for Judicial Review of BCLRB Nos. B448/95 and B337/96).

VII. Statistical Tables


VII. Statistical Tables Description Page

Explanatory Notes to Thbles ............•....... ·.········ .. ··············· ....................................................................................... . 80

Table 1 ApplicationS.ilnd Complaints Filed ilnd Disposed of in 1995-1996 ...... .. 82-86

Table 1A Certification Applications Grilnted in 1996 Analyzed by lndustry .......................... ............ 87

Table 18 CertifkationAPplications Filed ilnd Granted in 1996 Analyzed by Union ....... 88, 89

Table 2 Certification Applications Decided in 1996 ......................................................................................................... 89

Table 2A Certificatiqn Applications Gl'anted in 1996 by the Size of the Bargaining Unit ............ 90

Table 2B Certif~c~tiOhApplications Gl'anted Between 1987 and 1996 by the Size of the Bargrurung. Umt ...... :............................................................................................................................................................... ...................... 90

Table 3 Applications To Cancel Certifications Disposed of in 1995-1996 ....................................................... . 91

Table 4 RepresentanonAPplications Resulting in a Vote in 1996 ........................... .. 92

Table 5 Appeals·Dispqseci·pf:in 1996 .......................................................................................................... .. , . - . - . i' . -_

93

Table 6 "Success".Rate'ofAppeals .............................................. . 94

. Table 7 Applications Fwsuant to Part 5 of the Labour Relations Code (Strikes, Lockouts, Picketing, etc.) Disposed· of in"1996 ....................................................... .............................................. ............................................................... 95

Table 8 1996 Applications and Complaints Analyzed by Applicant ......... .................... ............................................ 96

Table 9 Analysis {)f:tyIediaqop Officer Appointments ....... . ........................................................................................... 97

Table 10 Tnne Requir~<;I to .Process Certain Decisions in 1996 ................................................ .. 98

Table 11 Officer As$igmri~Ms:in 1996 ............................................................................................................... . 98

Table 12 Requests for Certification Pursuant to Section 14 (4) (I) of the Labour Relations Code (PreviouslySectionS (4) (e) of the Labour Code and the Industrial Relations Act) ....................... 99

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Explanatory Notes to Tables The following tables provide an analysis of

the applications filed and disposed of in 1996. In some cases, statistics from1995 and other years are provided for comparative purposes.

A number of changes have been made over the past few years in the statistical base used in some of the categories in Table 1. The changes have been summarized as follows for the convenience of users.

Complaints of Unfair Labour Practices Prior to 1989, complaints under Sections 2

or 3 (now Sections 5 or 6) of the legislation were

not broken down by sub-section. From 1989 on, complaints under each particular sub-section have been counted as one complaint.

In 1996, the Board has decided to revert to the pre-1989 method of counting these complaints. The change affects the statistics pUblished as Sections 2, 3 and 4 of the Industrial Reldtions Act and Sections 5, 6, 7 arid 9 of the Laboilr Relations Code. The following table displays the statistics as they were published and as they would have been under the pre-1989 method of counting (rev).

OR COMPLAINTS Type of

Applicati9fl Year Filed Disp"",d I Pr<K",d,d "Vith<j"wnl of I' Granted DismIssed Other

Other Unfair Labour Practice Complaints (ss. 5, 6, 7 and 9 of the Labour Relations Code or ss. 2, 3 and 4 of the Industrial Relations Act)

NP - Not Published.

123

25

467 9

118 o

177

83

o 61 o

'-~"-,-,,,------,-,-. ------- -------,-- --

LABOUR RELATIONS BOARD - 1996 ANNUAL REPORT . 81

For an Interpretation of the Legislation as it Applies to the Collective Bargaining Relationship

Prior to 1989, an application regarding the inclusion or exclusion of employees from a bargaining unit was counted as one application for each in question. If the application was withdrawn, it was counted as one applicatiol'\ regardless of the number of employees involved. From 1989 on, an application regarding the inclusion or exclusion of employees has been counted as one application.

. For an Order or Opinion Pertaining to Applications Pursuant to Part 5 (Strikes, Lockouts, Picketing, etc.)

Prior to 1988, each application under Part 5 was counted as one application, regardless of the sections cited. One application could cover for example, a strike or a picket or a combination of both. From 1988 on, each section and sub-section of Part 5 has been counted as a separate application.

To File an Order in the Supreme Court

Applications to file orders in the Supreme Court were counted as applications for the first time in 1989. These applications had been processed by the Board/Council since 1974 but had not been registered or counted prior to 1989.

Stay Applications

These applications have been added to applications filed and disposed of in Table 1 for the first time in 1993. They are included in the Miscellaneous category. In previous years, these applications were not counted.

General Notes For 1996, a new table, Table 12, has been

added to the annual report. This table lists the requests for automatic certification as a result of an alleged unfair labour practice violation from 1977 to 1996.

For the convenience of users, the following is a brief description of some of the disposition codes used in Table 1.

• Applications and complaints granted include those where an order is issued, whether a regular order or a consent order. If an application is partially granted, it is included in this category.

• Applicatiqns and complaints dismissed include those where no violation is deemed to have occurred, where the application does not conform to statutory or regulatory time limits or where it is determined no further action is warranted.

• Applications and complaints not proceeded with include only those where the applicant has not supplied the Board with sufficient information to process the application. The application is returned but the applicant is free to reapply.

• Complaints that do not require a decision · from the Board are designated settled even

in those cases where the applicant submits a withdrawal.

It is important to note when using these statistics that the work content embodied in individual applications varies widely, both among different categories of applications and among applications in the same category. The work content of the administrative, investigative and decision-making functions can vary widely as well, from category to category and from application to application.

82 LABOUR RELATIONS BoARD - 1996 ANNuAL REroRf

TABLE 1 . Applications and Complaints Filed and Disposed of in 1995-1996

Type of Application

Complaints of Unfair Labour Practices

Complaints Regarding Intemal Union Affairs (s. 10)

Complaints Regarding Dllty to Bargain itl Good Faith (s. 11)

Complaints J,?egarding Dllty of Fair Representation (s. 12)

Other Unfair Labollr Practice Complaints (ss. 5, 6, 7 and 9)3

Religious Exemption (s. 17)

Certification Applications (ss. 18, 19 and 28) .

Certification Variances (ss. 28and 142)

Certification Cancellations" (ss. 33 and 142)

Year Filed

NUMBER OF APPLICATIONS OR COMPLAINTS

Dispos,d I "m<e<!d,d IVlithdl<awn I of I' Settled Granted Dis~issed Other

Hearing Held

1 20 of the 51 dismissed complaints, filed under the woollr Relations Code, were be<:ause no prima facie case was found. The remaining complaint was filed under the Industrial Relatiolls Act.

~ 15 of the 44 dismissed complaints, filed under the Lllboltr Re1atio1lS Code, were dismissed because no prima jacfe case was found. The remaining complaint was filed under the Industrial Relations Act.

a In 1996, the Board changed the method of cO'unting complaints under Section 5 and 6 of the Labour Relations Code. (See Explanatory Notes for details.) Statistics for 1995 have been revised to reflect the new method of counting. .

4 21,299 employees were induded in the 607 certification applications filed in 1995. 1hree of these applications were filed jointly by more than one union. . .

5 16..603 employees were induded in the 624 certification applications filed in 1996. One of these applications was filed jointly by more than one union.

6 10,563 employees were included in the 393 certifications granted in 1995. 14 of the certifications granted, involving 1,184 employees, were processed under the 'raid' provisions of the legislation. .

7 8,144 employees were included in the 430 certifications granted in 1996. Nine of the certifications granted, involving 687 employees, were processed under the 'raid' provisions of the legislation.

The estimate of employees per application is derlved from the estimate on the union applications. Variances do occur between the time of application and the time of disposal of the application. In the case of applications filed" the estimate could include some multiple cQunting where more than one union applied to cover the same group of employees.

8 See Table 3

LABOUR RELATIONS BOARD - 1996 ANNUAL REpORT

TABLE 1 Applications and Complaints Filed and Disposed of in 1995-1996 - Continued

lYpe of Application

Cancellation of a Voltmtary Recognition (s.34)

Declaration of Successor Status

Successor Employer (s. 35)

Successor Union (s. 37)

Conunon Employer (s. 38)

Accreditation Applications (s. 43)

Accreditation Variances (ss. 43 and 142)

Accreditation Cancellations (s. 142)

Ycar Filed

1996 85

1996 3

o;sposed I Pm"",dod '''lilhdl"w,'1 of ,. Granted Dismissed Other

70 1 0 53 14 2 0

3 0 0 0 3 0 0

83

Hearing Held

26

0

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TABLE l' Applications and Complaints Filed and Disposed of in 1995-1996 - Continued

Type of Application

Alleged Fa\lure to Execute or Comply With a Collective Agreement

First Collective Agr,eement (s. 55)

Part 5 Applications (Strikes, Lockouts, Picketing, etc.)

Replacement Workers (s. 68)

Essential Service Designations (s. 72)

Last Offer Vote (s. 78)

Review of Arbitration Award (s. 99)

Interim Order (s. 133)

File an Order in Supreme Court (s. 135)

Year Filed

1996 35

Other

o o

o

20 1

37 o 19 o o o

Hearing Held

o

1

7

o 1 Por four cases, the application was withdrawn prior to settlement. Por two casesJ the union was decertified. For two cases, a binding

collective agreement was imposed. 2 For two cases" the application was withdrawn prior to settlement. For two cases, a binding collective a'greement was imposed. For three

cases, the parties were allowed to exercise their right to strike or lockout. s In 24 cases, the employees voted to reject the offer. In eight cases, the employees yoted to accept the offer. In two cases, the parties reached a

settlement before the vote was held. In one case, the ballots were not counted as a result of an appeal decision. 4 In 25 cases, the employees voted to reject the offer. In nine cases, the employees voted to accept the offer. In three cases, the parlies reached a

settlement before the vote was held.

LABOUR RELATIONS BoARD - 1996 ANNuAL REpORT


NUMBER.OF OR COMPLAINTS Type of

Application Year Filed Settled Granted Dismissed Other

Interpretation of the Legislation as it Applies to the Collective

Relationship

Reconsideration of a Decision (s, 141)

85

Hearing Held

o 20

Declaratory Opinion (Excluding Declaratory Opinions Pertaining to Part 5 of the Legislation) o 0

Appointment of an Officer to Resolve a Dispute Where a . Collective Agreement is in Effect (5. 96 (1). of the Indllstrial Relations

Appointment of an ArbitratorS .

1996 0 0 '0 o o o 1 R~ling Mac!e. 2 For 71 of:the~93"applications dismissed, leave to apply was denied. 3 For 50 oUhe,n,applications dismissed, leave to apply was denied. See Table 5. 4 Respons!b1my,'fgf',t,hese applications was transferred to the Collective Agreement,ArbItration Bureau art July 15, 1994. 5 At the e,nd pf)994, the Board ceased processing these applications from the B.c. Government and Service Employees' Union. 6 Request Ack!i0~~,~dged.

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86 LABOUR RELATIONS BoARD - 1996 ANNuAL REpORT


Type of Application

Miscellaneous

TOTALS

1 Includes 13 stay applications. 2 Includes 20 stay applications.

Year Filed

NUMBER OF APPLICATIONS OR COMPLAINTS

lA'posed I P"""ded '''Iithd,caw,"1 of t' Settled Granted Other Hearing Held

3 Includes 15 stay applications, 10 dismissed and 5 withdrawn. 4 Includes 16 stay applications, 15 dismissed and 1 withdrawn. 5 Totals for 1995 have been revised to reflect the change in the melhod of counting Sections 5 and 6 complaints. (See the Explanatory

Notes. 6 1,193 applicatlons disposed of in 1995 were heard some time during the process, In 1995, the -Board held 820 hearings (induding 621

expeditM hearh\g$ to deal with certification and decertification applications), some of which dealt with multiple applications and, for some of wfilch, the applications had not been disposed of by the end of 1995.

7 1,173 applications >disposed of in 1996 were heard some time during the process. In 1996, the Board held 877 hearings (including 700 expedited hearings to deal with certifh;:ation and decertification applications), some of which dealt with multiple applications and for some of which, the applications had not been disposed of by the end of 1996,

NOTE: The sections quoted are from the Lnhollr Relations Code unless otherwise indicated. The column 'Disposed of' includes some applications which were filed under the Iud/islrial Relations Act. .

LABOUR RELATIONS BoARD - 1995 ANNuAL REpORT 87

TABLE lA Certification Applications Granted in 1996

Analyzed by Industry

Number of Type of Industry Certifications

Granted

Agricultural and Related Services ...................................................................................... " .... . 3

Fishing and Trapping ........ " ................ " ....... " ...... " .. "" ............... " .... " .... " .. " ........ " ............ .. 2

Logging and Forestry " ...... " .... " ......................... " .. " .... " .. " .... " .. " ...... """" ...... " .... """"""'"."".,,,,.,, 33

Mining (including Milling), Quarrying and Oil Wells " .......... "",, ........................ .. 2

Manufacturing ............ """""" .. ,, .. .. ....... , ................................ , ................................... ,." .................... . 54

Construction .......... """ .. " ............... :,, ..... " .... " ...... " ...... " ...... "" .......... " .... " .. """ ...... "" ...... " .. "" .. "",, ...... ,, .. 86

Transportation and Storage ...... "" .... " ...... " ....... "" .... "" .... " ......... " .. " .. " ........ "" ......... " .. " ........ " ..... 29

Communications and other Utilities " ...... "" ...... " .... " ............ " ....... "" . .'.. .. " ...... " .... "" .. "" .... . 2

Wholesale Trade "" .... " ......... " .................... " ..... " ...... " ........ " ........ " ...... " .... " ........ " ......... " ............ " ... "" .. . 7

Retail Trade "" .. " .... " ...... "" .......... " ............ " .......... " .................... " ........ " ...... "" ...... """ .... " .. """ ...... ".",,.,, .. 25

Finance and Insurance " .... "" .......... "" ............ " ........ " ........ " .. " .... "" .... " .. " ....... "" .......... "",, ........... ,," 10

Busitless Services ...... ", ................. :" ........................................................................ " ...... : ... , ................. , ..... . 6

Govel'I\ll,'\ent Services .... " ...... " .......... " ........................ " ............ " ...... " ..... " ...... " .... " ...... "" ................ ".". 2

Educational ServiCes " ...... " ...... " ...... "" ...... """ .................. ,, ......... " ........... "" ........ " .. """,, ................ ,," 3

Health. and Social Services .. "" .............................. " ...... .' ......................... " .... " ............ " .. """"",, .... . 97

Accommodation, Food and Beverage Services " ........ ,," ........ """""" ........................ ,, 23

Other Services .. ,,, .... ,,""",, .... ,, .. ,,,, .. ,,,, .... ,, ...... ,, .... ,,,, ........ ,,,, ........ ,, .. ,, .... ,,,, .... " .... "",, ................................ ,," 46

TOTAL .... "" .. " .... " .. " .... " ........... " .. " ....... " ...... "" ........ "" ...... . 430 -

Number of Employees

198

70

419

39

1,374

872

717

48

144

619

168

16

60

103

1,404

620

1,273

8,144

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88 LABOUR RELATIONS BOARD - 1996 ANNUAL REpORT

TABLE 1B Certification Applications Filed and Granted in 1995

Analyzed by Union

UNION NAME (Names have been abbreviated. Where possible, Ute commonly used, shortened form appears.)

Boilennakers .. ........................ ........................................ .. ..................................... .. Building Trades Council ......................................................................................................... . C.L.A.C. .. .......................... . ........................................ , .................................... . Carpenters .......................... .......................................... .. ..................................... . Cement Workers ........... . ...................................................................................... . ElectriCal Workers ....... , ........................................................................................................ . Elevator Constructors .............. ............................................. .. .................... . General Workers ............... .. ..................................................................... . Glazier & Glass Workers ....................................................................................................... . Heat & Frost Workers ..... ..................................... ........................... .. .................. . Independent Employees ........................................................................................................... . Iron .Workers ...................... .. .................................................................................. . Labourers .......................... .. .................................................................. .. Machinists & Aerospace Workers ................................................................................ . Operating Engineers ......................................................................... . Painters ....... .. ........................................................................................ .. Plasterers .............................................................................................................................................. .. Plumbers .......................................................................................................................... .. Sheet Metal Workers ............................................................................ .. ...................... ..

C.E.P ......................................................................................................................................................... . I.W.A. ............................................................................................................... . ........................... ,. P.P.W.C ......................................................................................................................................... .

Longshoremen .............................................................................................................................. .. Marine Workers .................................................................. , .............................................................. .. Merchant Service .......................................................................................................................... .. Nanairno Shipyard Workers .............................................................................................. .. Owner-Operator Workers ......................................................................................................... . Shipyard Workers ...................................................................................................................... .. Teamsters ........................................................................ , ................................................. .. Transit Union (ICTU) .... .. ................................................................................ . United Transportation (UTU) ....................................................................................... .

ACTRA.................................................................................................... .. ....................... .. Film Craftspeople ......................................................................................................................... .. Theatrical Stage Employees et al ..................................................................................... ..

Service Employees ....................................................................................................................... . Service Workers ..................... .. .......................................................................................... .. Teachers Federation Employees ................................... .. .................. ..

Hotel Employees ........................................................................................................ .

Health Science Association ........................................................................................... . Hospital Employees Union .......................................................................... .. ................. . Nurses .......................................................................................................................................................... .

Number of Certification

Applications Filed

0 1

31 23 1

27 3

17 3 4 1

14 7 1

27 4 0 8 3

14 89 3

5 0 4 1 5 4

26 5 2

8 3

13

4 5 3

13

13 14 27


Applications Granted

1 0

25 16 1

19 2 7 1 3 1

14 4 1

20 4 1 4 1

9 64 1

0 3 2 1 1 0

19 4 1

5 1 9

5 1 3

11

12 13 17

(continued)

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LABOUR RELATIONS BOARD - 1996 ANNUAL REpORT

TABLE 1B Certification Applications Filed and Granted in 1995

Analyzed by Union - Continued

UNION NAME (Names have been abbreviated. Where possible, the commorily used, shortened form appears.)

Graphic Workers ..................... ,........... .. ................................................................................. . Telecomml111ication Workers ........... . ....................................... : ......................... ,-, Transportation Communications Union ...................................................................... ..

CAW ........................................................................................................................................... . Canadian Iron, Steel and Industrial Workers ..... .. ............... .. Steelworkers ............................................ .. ................................................................. .

Brewery Workers .c ........................................................................................................................... .

Fishennen ................................................................................................................................................ .. Food & Commercial'Workers ........................................................................................ . Retail, Wholesale Workers ...................... .. ........................................................................ ..

C.U.P.E. ........................................... ................... .. ........................................................................ .. O.P.E.U'; O.T.B.U. .................. .

B.C.G.B.U . ...................................................................... .

CUPW ............................................................................................................................................... ..

Single Employer Independent Union ........................................................................ ..

. TOTAL ...................... c ................................................................................................... .. . .


Applications File.d

4 3 2

28 1

19

2 2

17 11

12 8

73

2

5

624' =

89


Applications Granted

3 2 1

18 1 9

1 1

14 7

11 7

54

1

1

430' -

1 Adding _the individmil nwnbers in the column produces a larger number because some applications Were filed jointly by more than one union.

NOTE: Some of the certifications granted in 1996 resulted from applications filed in 1995 and some of the applications filed in 1996 had not y~t been decided at the end of 1996.

TABLE 2 Certification Applications Decided in 1996

..

, . Applications Granted

..

Unorganized employees ................................................................................... . 421 Organized employees ................................................................................. . ·9

TOTAL ....................................................................................... .. 430 --

Number of Employees Granted

7,457 687

Uno~ganized employees ................ .. ......................... . Organized employees ....................................................... .

TOTAL ..................................................................... .. 8,144

.'

Dismissed

39 8

47

Dismissed

1,105 1,149

2,254

Total

460 17

477

Total

8,562 1,836

10,398

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I, 90 LABOUR RELATIONS BOARD - 1996 ANNUAL REpORT

TABLE 2A

i: 1 Certification Applications Granted in 1996 by the Size of the Bargaining Unit

. [ Number of Employees Number of Percentage of Cumulative

Cer.tifications Certifications Percentage

jill 217 50.4% 50.4% 95 22.1% 72.5% 51 11.8% 84.3%

1 to 10 ............................................................................................. . llto20 .............................................................................................. . 21to30 ....................................................................................... .

iiill ".,

. 1

21 4.9% 89.2% 8 1.9% 91.1%

11 2.6% 93.7% 8. 1.9% 95.6% 3 0.7% 96.3%

31 to 40 ........................................................................................ . 41to50 .......................................... . 51 to 60. . .......................................................................... . 61 to 70 ........ . .................................................................................... . 71to80 ......................................................................................................... . 81 to 90 ......................................................... " .............................................. . 4 0.9% 97.2% 91 to 100 .................. . .............................................................................. . 6 1.4% 98.6% 101 to 200 .................................................................................... . 5 1.2% 99.8%n Over 200 ........................... : ............................................................. . 1 0.2% 100.0%

TOTAL ................................................................. . 430 =

TABLE 2B Certification Applications Granted Between 1987 and 1996 by the Size of the Bargaining Unit

Number and Percentage of Certifications

Year lto 20 2110'50 Over 50 Total Employees . Employees Employees

1987 ............................. .......... .,,, ..... 127 69.0% 38 20.7% 19 10.3% 184 1988 .................. ............... " .............. 198 57.4% 51 14.8% 96 27.8% 3451

1989 ................................................... 181 68.8% 51 19.4% 31 11.8% 263 1990 .................................................. 181 72.4% 47 18.8% 22 8.8% 250

i I 1991 .. , ......................... , ...................... 173 70.9% 47 19.3% 24 9.8% 244 , 1992. ................................. 130 66.0% 47 23.9% 20 10.1% 197

[ , 1993 ........... ................................... , .. 353 69.4% 102 20.0% 54 10.6% 509 1994 ....... .......... " ............................. 292 66.9% 86 19.7% 59 13.4% 437 1995 ............ ............. , ... , .. 253 64.4% 100 25.4% 40 10.2% 393 1996 .... .................... , ........................ 312 72.5% 80 18.6% 38 8.9% 430

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1 In 1988, 75 certifications covered bargaining units consisting of teachers in the various British Columbia school districts.

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TABLE 3 Applications to Cancel Certifications Disposed of in 1995-1996


1995 1996

Filed by Employee(s) -Granted ............ " ......................................................................................................................... . 69 84 Dismissed ................................................................................................................... . 18 16 Not Proceeded With ......... ............................................................ . ....................... . 13 19 Withdrawn ............. :...................................... . ............................................................... . 14 5

TOTAL ............................................................................................................................... . 114 124 - -Filed by Employer -

Granted ....................................................................................................................................... . 9 9 Dismissed ................... :... . ............................................................................................. . 2 1 Not Proceeded With .......................................................................................................... . 0 1 Withdrawn ................................................................................................................................. . 1 0

TOTA,L ............................................................................................................................. . 12 11 = -

. Filed by Union -Granted ........................................................................................................................................... . 7 14 Dismissed ...................................................................................................................................... . 1 2 Withdrawn ........................... :. . ......................................................................................... . 2 0

TOTAL ................................................................................................................................. . 10 16 -Summary-

Granted ............................................ . ................................................... . 85 107 Dismissed ...................................................................................................................................... . 21 19 Not Proceeded With .: ........................................................................................................ . 13 20 Withdrawn ............... , ...................................................................................... . 17 5

TOTAL .. : ............................................................................................................ . 136 151 - -


TABLE 4 Representation Applications Resulting in a Vote in 1996

Number of Number of

Total Number of Type of Application Successful Percentage Applications Applications Successful Eligible Voters

I i ~ d Certification - a vote for or against ,I one union or between hvo unions ,

applying for the same unit , ... "." .. 52" 27 52% 1,512

Certification - a vote between an applicant and an incumbent union". 12 9 75% 1,318

Expansion of a bargaining unit .. "",, .. 2 2 100% 53

Decertification ."". ..... " ....... "." ..... , 91 83 91% 1,601

Cancellation of a voluntarily. recog-nized collective agreement ...... """" .. " .. ,, 3 3 100% 8

Successor employer declaration """"" .. " .. 1 1 100% 18

As a result of consolidation of certifica-tions ........... " ..................................... " ............................ 1 1 100% 1,253

Arising out of unfair labour practice complaints " .. """"",, ... ............................. 2 0 0% 352

TOTAL """ .. """ .. : .. "." .. "" .. """""" .. "."." 164 126 77% 6,115 - = -- =

1 13 applications resulted in 6 votes because two or more unions were applying. separately, for the same unit.

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LABOUR RELATIONS BoARD - 1995 ANNUAL REpORT

TABLE 5 Appeals Disposed of in 1996

Type of Application being Reconsidered

Unfair labour practice adjudication excluding duty of fair representation ....................................... .

Duty of fair representation adjudication .......... . Certification ................................................................................ . Appeal of certification decision ................................. . Variance of certification ....................... . Cancellation of certification ........................................... . Variance of accreditation ................................................ . Declaration of employer successor status ......... . Declaration of union successor status ................. . Ruling re: cornmon employers ..................................... . Ruling le: first contract mediation. ........................... . Ruling pertaining to alleged illegal strikes,

lockouts, picketing, etc. ......................... . .................. . Ruling re: replacement workers ................................ . Ruling r~: essential service designations ............ . Review of arbitration award .......................................... . Ruling re: interpretation of the legislation as it

applies to the collective bargaining rela-tionship ......................... , ......................................................... .

Ruling re: council of trade unions ............................ . Ruling re: stay of decision ........................... . Ruling re: commencement of bargaining ........... . Ruling re: association of bargaining agents ..... . Ruling re: procedure ................................................... .

TOTAL ............. ., ...................... ., .. .,., .... .

Appellant

Employer(~j' ......... ,.......................... Union(s) .... : . ., .. ., .. ., ................. ., ....... .,., .............................. ., ............. .,. Employee(s) ., .. ., ....... ."., ...................... ., ..... ., .............. .,., ... .,., ........ .

TOTAL ............. ., .......... ., ................... .,.,.

Leave Denied

6 15

4 1 3 1 o 2 1 o 2

o 1 1 6

2 o 1\ 1 1 2

50

Leave Denied

16 12 22

50

Dismissed

4 2 4 o 2 o o o o 2 o

1 o o 1

2 3 o o o 1

22

Dismissed

9 10 3

22 -

Granted

.1 1 o o 1 1 1 o o 1 o

o o o 1

o o o o o 1

8

Granted

5 1 2

8 -

Withdrawn

1 o 1 o o 1 o o o o o

1 o o o

1 1 o o o 1

7

Withdrawn

0 6 1

7 -

Total

12 18 9 1 6 3 1 2 1 3 2

2 1 1 8

5 4 1 1 1 5

87

Total

30 29 28

87

93


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TABLE 6 "Success" Rate of Appeals

1992 1993 1994 1995 1996

Total Applications Disposed of ...................... 94 152 143 131 87

Number of Applications Withdrawn ....... 7 19 24 16 7

Number of Applications Processed to a Final Decision ............................................................ 87 133 119 115 80

Number of Applications Resulting in a Revision of the Original Decision ......... 17 15 13 22 8

"Success" Rate of Appeals ................................. 20% 11% 11% 19% 10%

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LABQUR RELATIONS BOARD - 1996 ANNUAL REpORT

TABLE 7 Applications Pursuant to Part 5

of the Labour Relations Code (Strikes, Lockouts, Picketing, etc.) Disposed of in 1996

Type of Application

A. Dispute settled 1. re alleged illegallockouL ..................................................... . 2. re alleged illegal strike or a challenged strike

vote .... , .......... "., ...................... , ........................................................... "., ... . 3. r~ picketing (employer complaint) ............................. . 4. re picketing (trade union application for a

declaratory opinion) .................................................. . 5. re continuation of benefits ........................ : ......... . 6. re activity affecting business, etc .................................. .

Sub-Total ........ , ......................................................... .

B. Dispute disposed of by an adjudication that: (a) a violation had'occurred or would occur or that

'a specific activity should be restricted, or (b) that certam proposed picketing be allowed 1. realleged illegal strike or a challenged strike

vote,; ......................................................................................................... . 2. te picketing (employer complaint) .............................. . 3. re picketing (trade union application for a

declaratory opinion)............ . ................. .

Sub-Total................... ........................ . .................... .

C. Dispute diSposed of: (a) by an adjudication that no violation had

occurred or would occur or that a specific activity sJ}ould not be restricted, or

(b) .by a'refusal to rule on the proceedings 1 .. rea1(eged illegallockouL .................. .. 2. iealleged illegal strike or a challenged strike

vote, .. , ....................................................................................................... .. 3.re pjcketing (employer complaint) .............. . 4,. re activity affecting business, etc ................. ..

S"bc Total .................................................................. .

TOTAL ..................................... : ....... . .:

.' .. '


6

40 22

2 1 3

74

9 12

2

23

5

1 1 2

9

106

Ata Formal ~earing

4

7 6

1 o 2

20

7 10

2

19

5

1 1 1

8

47 -

Ina Formal .Decision

o

o o

o o o o

5 1

o 6

3

1 1 1

6

12 -

95

N~lEi .'!1le ~pp.l~qt,,~Jol1$ inThble 7 include those filed to avert threatened strikes/lockouts and/or picketing (through a declaratory opinion, a jurisdiction'!:} d~-"lsl(?I1i ",,:tc;) as well ,as those protesting some [ann C?f actual job action. .


TABLE 8 1996 Applications and Complaints Analyzed by Applicant

Complaints of Unfair Labour Practices Complaints Regarding Internal Union Affairs Complaints Regarding Duty to Bargain in

Good Faitlt .............................................................................. . Complaints Regarding Duty of Fair Represen-

tation ......................................................................................... . Otlter Unfair Labour Practice Complaints ........ .

Religious Exemption ............................................................... . Certification Applications........ . ............................. . Certification Variances .......................................................... .

. Certification Cancellations ................................................. . Cancellation of a Voluntary Recognition ............ . Permission to Alter Conditions of Employ-

ment .................................................................................................. . Alleged Unlawful Alteration of Employment

Terms and Conditions ................................................... . Declaration of Successor Status

Successor Employer ............................................................ . Successor Union ............................................................ .

Common Employer ............................................................... . Accreditation Applications ............................................. . Accreditation Variances ...................................................... . Accreditation Cancellations ............................................ . Alleged Failure to Execute or Comply with

Collective Agreement... .................................................. . First Collective Agreement ............................................. . Part 5 Applications (Strikes, Lockouts, Picket-

ing, etc.) .................................................................................... . Replacement Workers ........................................................ . Essential Service Designations ...................................... . Las t Offer Vote ........... : ................................................................ . Review of Arbitration Award ........................................ . Interim Order ............................................................................... . File Order in Supreme Court ......................................... . Interpretation of the Legislation as it Applies

to the Collective Bargaining Relationship .... . Reconsideration of a Decision .................................... . Declaratory Opinion (Excluding Declatory

Opinions Pertaining to Part 5 of the Legisla-tion) ............................................................................................... .

Miscellaneous. .................................................................... .

TOTAL! ...................................................................... .

Filed by Employer(s)

o

10

.0 19 o o

58 21 o

7

o

28 o 1 o

22 3

2 10

83 o o

40 35 13 15

21 28

12 47

475

Filed by Union(s)

o

37

o 432

o 624 211 15 o

o

85

70 87 39 o o o

20 25

20 14 o o

25 14 17

45 38

7 72

1,897

Filed by Employee(s)

12

o

202 20 14 o o

122 6

o

o

1 o o o o o

o o

2 o o o

11 2 3

3 32

o 6

436

Other

o

o

o o o o 1 o o

o

o

o o o o o o

o o

o o

350 o o o o

o o

1 7

359

Total1

12

46

202 469

14 624 265 158

6

7

85

99 87 40 o

22 3

22 35

104 14

350 40 71 29 35

69 98

19 131

3,156

1 Totals by applicant do not equate with total applications because" certain applications were filed jointly, by more than one type of party. .


TABLE 9 Analysis of Mediation Officer Appoinhm!nts

Activity Appointments continued from previous year................. .................................................................................... 65

Appointments made - January I-December 31,1996 (Section 74) ....................................... :...... 233

Appointments made - January I-December 31,1996 (Section 55) ............................................ 35

TOTAL ., ............................................................................................................................................................................. . 333

Breakdown of Appointments Made During 1996

On application ·of employers ................................................................................... , ...................................... , .................. . 115

On application of trade unions......................................................... ................................................................................. 151

Joint applications................................................................................................................................................................................ 2·

At 'the discretion of the Minister........................................................................................................................................ 0

TOTAL...................................................................................................................................................................................... 268

Total number of employees involved ............................................................................................................................... . 52,065

Disposition of Appointments Mediated settlement.. .................................................................................................................................................................. . 274

Mediator reported out, dispute still not settled .................................................................................................. 5

Appointments continuing: ... , ....................... , ...... , ...................................... " ...... , ........ ,............................................................. 51

Appointments rescinded ............. : .......................................................................................................................................... .. o Other (plant closure, decertification, elc,).................................................................................................................. 3

TOTAL...................................................................................................................................................................................... 333

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TABLE 10 Time Required to Process Certain Decisions in 1996

Type of Application

Unfair Labour Practice Complaints Under S. 6 (3) (a) (i) of the Labour Relations Code Where a Dismissed Employee is Involved ...

Complaints Regarding Duty of Fair Representation .................................... .

Certification ........................................................................................................ : ................................. .

Cancellation of Certification Under Section 33 (2) of the Labour Relations Code .............................................................................................................................. .

Declaration of Successor Employer .............................................................................. ..

Common Employer ...................................................................................................................... .

Review of Arbitration Award ............................................................................................ .

Reconsideration of Decision ................................................................................................. .

Number of Decisions1

90

64

611

105

105

41

67

87

1 Excludes applications not proceeded with because applicant did not file sufficient iruonnation.

TABLE 11 Officer Assignments in 1996

Part 51

Settled/Withdrawn ........................................................ 34 Resolved Issues/Assisted at Hearing .......... . 0 Narrowed Issues/Assisted at Hearing ....... 5 To Adjudication (no informal}.............................. 2 Report of Investigation .............................................. 0 Other ........................................................................................... 7

TOTAL ........................................................... .

1 Includes strikes, lockouts, picketing. etc. 2 Excluding duty of fair representation.

48

TYPE OF APPLICATION

Unfair Certification Labour and Expanded Practice2 Bargaining Unit

91 0 0 190

51 105 5 8 0 1

10 10

157 314 - -

Average Number of

Days

74

259

22

25

228

173

210

182

Other

49 0

27 7 6 3

92 -

Median Number of

Days

51

185.5

8

12

57

96

165

93

Total

174 190 188

22 7

30

611

LABOUR RELATIONS BOARD - 1996 ANNuAL REpORT

TABLE 12 Requests for Certification Pursuant to Section 14(4)(f) of the Labour Relations Code

(Previously Section 8(4)(e) of the Labour Code and the Industrial Relations Act)

Year Requested Granted

1977 ...................................................................... . 25 1 1978 ......................................................................................... . 17 1 1979 ............. : ............................................................ : ................ . 25 1 1980 ......................................................................................... . 22 0 1981 ........................................................................................... . 34 2 1982 ........................................................................................... . 15 2 1983 ........................................................................................... . 18 0 1984 ........................................................................................... . 21 3 1985 ........................................................................................... . 16 2 1986 ........................................................................................... . 18 2 1987 ............................................................................... , ......... . 17 0 1988 ........................................................................................... . 10 0 1989· ........................................................................................ .. 10 0 1990 .......................................................................................... . 18 3 1991 .......................................................................................... .. 20 1 1992 ......................................................................................... . 32 6 1993 ......................................................................................... . 31 2 1994 ........................................................................................ .. 31 2 1995 ...................................................................................... .. 35 0 1996 .......................................................................................... . 41 1

TOTAL ......................................................... .. 456 29 - -

Note: Figures for 1977 to 1992 are from the Board's Annual Reports. Figures for 1993 to 1995 were not included in the Annual Reports for these years.

These requests are included under Ollter Ull/air Labour Practice Complaints (not under Applications for Certification). .

99

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100 LABOUR RELATIONS BoARD - 1996 ANNuAL REpORT

APPENDIX OF LEGISLATIVE REFERENCE TABLES

TABLE A Statutory History of the Labour Relations Code

Statute'

. Labour Code Amendment Act, 1982, S.B.C. 1982, c. 59 .................. .

Regulations Act, S.B.C. 1983, c. 10

Labour Code Amendment Act, 1984, KS.B.C. 1984, c. 24 ............. .

Commercial Arbitration Act, S.B.C. 1986, c. 3 ............ , ........................................ ..

Industrial Relations Reform Act, 1987, S.B.C. 1987, c. 24 ................. ..

Miscellaneous Statutes Amendment Act (No.5), 1987, S.B.C. 1987, c. 60

Dale and Manner of Coming Into Force

August 4, 1982 Proclamation

October 26, 1983 Regulation

June 8, 1984 Regulation

August 27, 1984 Regulation

July 4, 1986 Regulation

July 27, 1987 Regulation

December 17, 1987 Royal Assent

Budget Measures Implemelltation Retroactive to Act, 1989, S.B.C. 1989, c. 1.......... April 1, 1988

Labour Relations Code, S.B.C. January 18, 1993 1992, c. 84 ................. ,.................................. Regulation

May 1, 1993 Regulation

Sections in Force

21,25 and Schedules 2 and 16 amend 21 (2), 29 (1) (a), (b), 29 (2), 35 (c), 42 (2), 59 (2), 60 (c), 61 (2), 73 (1) (a),75, 81 (5) (a), (6), 142 (1), 154

1-19 except 13

13

47 repeals 99 (4)

The whole Act except S. 2 (e) and that part of S. 60 iliat enacts S. 137.97 to S.137.99

9 amends 26 (2)

5 amends 123.1

Act except S. 53, 54, 83, 86, 104, 105

Industrial Relations Act, KS.B.C. 1979, c. 212, except S. 74-78, 95, 96 Repealed

S. 53, 54.

Industrial Relations Act, KS.B.C. 1979, c. 212, S. 74-78 Repealed

n.c. Gazette References

Reg. 354/82, PI. II, V. 25, p. 564

Reg. 393/83, PI. II, V. 26, p. 607

Reg. 167/84, Pt. II, V. 27, p. 221.

Reg. 274/84, Pt. II, V. 27, p. 358

Reg. 148/86

Reg. 246/87

Reg. 6/93

Reg. 6/93

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LABOUR RELATIONS BoARD - 1996 ANNuAL REPORT

TABLE A Statutory History of the Labour Relations Code - Continued

Statute

Labour Relations Code, s.B.e. 1992, c. 84 ................................................... .

Labour Relations Code, S.B.C. 1982, c. 84

Miscellaneous Statutes Amendment Act (No.2) 1995, S.B.C. 1995, c. 12

Employment Standards Act, S.B.C. 1995, c. 38

Human Rights Amendment Act, 1995, S.B.C. 1995, c. 42

.. Not in force as of January 8, 1996.

Date and Manner of Coming Into Force

July 15, 1994

July 15, 1994

June 8, 1995 Royal Assent

November 1, 1995 Regulation Not yet in force' Regulation

Sections in Force

S. 83, 86, 87, 104, 105

Industrial Relations Act, RS.B.C. 1979, c. 212, S. 95, 96 Repealed

S. 105 (10) Transitional 10 Amends S. 105 (10)

132 Amends S.54 (3) 8 amends S. 31 (b)

B.C. Gazette References

Reg. 247/94

Reg. 248/94

Reg. 396/95

101


TABLE B Statutes Referencing the Labour Relations Code

Statute

Assessment Authority Act, RS.B.C. 1979, c. 22............................ .. .................... .

British Columbia Transit Act, RS.B.C. 1979, c. 421... ...................................................... ..

College and Institute Act, RS.B.C. 1979, c. 53 ..................................... , ................................ .

Correction Act, RS.B.C. 1979, c. 70...................................................... .. ........................ .

Employment Stardards Act, 105 S.B.C. 1995, c. 38 ........................................................... ..

Fern) Corporation Act, RS.B.C. 1979, c.128 .......................................................................... ..

Freedom of Information alld Protection. of Privacy Act, S.B.C. 1992, c. 61 .... .

Health Authorities Act, S.B.C. 1993, c .. 47

Health Sector Labour Regulations Regulation, July 28, 1995,

B.C. Reg. 329/95, am. August 3; 1995, B.C. Reg. 335/95

Human Rights Act, S.B.C. 1984, c. 22 ..................................................................................... .

Hydro and Power Authority Act, RS.B.C. 1979, c. 188 ................................................ ..

Hydro and Power Authority Privatization Act, S.B.C. 1988, c. 39 ...................... ..

Industrial Relations Act (except RS.B.C. 1979, c. 212) ................................................ ..

Institute of Tec/molop) Act, RS.B.C. 1979, c. 199 ............................................................... .

Job Protection Act, S.B.C. 1991, c. 4 ................................................................................................ .

Labour Relations Code, S.B.c. 1992, c. 82 .................................................................................. .

Members' Conflict of Interest Act, S.B.C. 1990, c. 54 ...................................................... ..

Metro Transit Operating Company Act, RS.B.C. 1979, c. 257 ................................ ..

Mines Act, S.B.C. 1989, c. 56 ......................... : ...................................................................................... .

Municipal Act, RS.B.C. 1979, c. 290 ............................................................................................. ..

Pemion Benefits Standards Act, S.B.C. 1991, c. 15 .............................................. ..

Police Act, S.B.C. 1988, c. 53 .................................................................................................... ..

Public Service Labour Relations Act; 19, RS.B.C. 1979, c. 346 ......... : ........ .

Residential Tenanct) Act, S.B.C. 1984, c. 15 ................................................ , ............................. .

School Act, 20, S.B.C. 1989, c. 61 ................................................................................................... ..

System Act, R.S.B.C. 1979, c. 399 ............................................................................ : ........................ .

Wage (Public Constmction) Act, RS.B.C. 1979, c. 426 ............................. : .................... .

Workers Compensation Act, RS.B.C. 1979, c. 437 .............................................................. .

Vancouver Charter, S.B.C. 1953, c. 55 ............................................................................................ .

Sections

21

6,6.1,6.3

1,30, 32, 42

16.1

1, 2, 7, 15

23

Schedule 2

31

52

24

(Repealed certain sections)

7

5 Refer Table A

10

6 1 254

7 26,35,51

1, 2, 17, 18, 20, 26

40

Contents, 1, 28, 29, 34, 133

17

9 72, 74, 86, 93

175A

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LABOUR RELATIONS BoARD - 1996 ANNUAL REpORT 103

TABLE C Rules and Regulations Under the Labour Relations Code

Effective Date Regulation/Rule

January 14, 1993 ........... .. Labour Relations Regulation' ...................... .

January 18, 1993 ........................ . Labour Relations Board Rules2 ................. .

February 25, 1993 ........................ . Labour Relations Regulation (minor amendments} .......................... ..

August 2, 1994 ............................... . Labour Relations Board Rules3 .................. .

Reference

Reg. 7/.93; O.c. 28/93

Ministerial Order MN 4; O.c. and Ministerial Order Reslplle, Vol. 20, No.1

Reg. 59/93 O.c. 209/93

Ministerial Order M208; O.c. and Ministerial Order Resume, 1994, Vol. 21, No. 26

1 Reg. 7 /93 ,established the Regulations passed pursuant to Section 159 of the Labour Relations Code and repealed Reg. 147/87 (the former Industrial Relations (Voting) Regulation).' .

2. Ministeri~I,Or4er,M4 made the Labour Relations Board Rules and repealed the fonner Industrial Relations (Practice and Procedure) Regulati~nlwhiCh had been referred to as the Industrial Relations Council Rules. .

3 Miruste~iah;)l:der M200 approves the Labour Relations Board Rules, 1994, and repeals "any previous Labour Relations Board Rules".

Queen's Printer for British Columbia© Victoria, 1997

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