The Grievor’s urine tested positive for cannabis metabolites following an incident. The Employer required him to attend an examination with an employer-selected physician, submit to a year of random drug tests, and suspended him for 10 days. The Arbitrator held that none of the Employer’s actions were justified and ordered that the Grievor be made whole, including by awarding $15,000 in privacy damages.
Vancouver Shipyards Co. Ltd. v CMAW, Local 506 Marine and Shipbuilders, 2022 CanLII 51909 (BC LA)
The Union grieved the Employer’s decision to order the Grievor to undergo post-incident drug and alcohol testing.
The arbitrator held that the drug and alcohol testing was not justified in the circumstances and was a violation of the Grievor’s privacy and bodily integrity rights.
The incident, in which the Grievor accidentally caused a large aerial work platform to contact another machine at low speed, did not rise to the level of a “significant event" as defined in the Employer’s policy and the jurisprudence. There was no significant damage and there were no injuries. The Employer’s speculations that someone could have been injured or there could have been significant damage to property of the Company were very remote possibilities and worst-case scenarios. During the investigation, there was nothing in the Grievor’s responses that would have rationally led to the conclusion that impairment played any role in the incident.
The arbitrator held that testing cannot be used when the only justification is ruling out the possibility of impairment. The Grievor was awarded $1000 in damages.
Pacific Honda v. International Association of Machinists and Aerospace Workers, Local Lodge 1857
The Union grieved the Employer’s failure to recognize National Day for Truth and Reconciliation as a designated statutory holiday under the Collective Agreement.
Arbitrator Saunders agreed with the Union’s argument that National Day for Truth and Reconciliation is a statutory holiday under the collective agreement, and ordered the Employer to recognize it as such, and to compensate the employees for the losses occasioned to date. The Arbitrator applied well-known collective agreement interpretation principles to conclude that the phrase “forced by legislation to close its operation” cannot be read in its literal sense. Therefore, the phrase must be a description of the legislative context in which businesses either close, or pay wages at a premium, given the legislative context in which the collective agreement exists.
Finning (Canada) v International Association of Machinists and Aerospace Workers Vancouver Lodge 692 (COVID-19 Vaccination Disclosure Policy), 2022 CanLII 25773 (BC LA)
After the Employer implemented a COVID-19 Vaccination Disclosure Policy requiring that employees either disclose that they had been fully vaccinated against COVID-19 or show proof of a negative Rapid Antigen Test, the Union grieved the aspects of the Policy which required employees to pay for their own rapid tests and conduct the tests on their own time.
Arbitrator Southern upheld the Union’s grievance with respect to the cost of the tests. She found that the Employer should bear the cost of rapid tests for multiple reasons, including that rapid tests were analogous to a required “safety item” under the Collective Agreement for which the Employer had agreed to pay. However, the Arbitrator found that the time required to take a rapid test was not a significant enough demand on an employee’s personal time to warrant compensation.
Accordingly, the Arbitrator declared the aspect of the policy requiring employees cover the cost of rapid testing to be invalid and ordered the Employer to compensate the employees affected by making them whole with respect to those expenses.
Earl's Industries -and- Marine Workers and Boilermakers Industrial Union, Local No. 1 (National Truth and Reconciliation Day Grievance)
The Union grieved the Employer’s failure to recognize National Truth and Reconciliation Day, observed on September 30, as an additional statutory holiday pursuant to the Collective Agreement.
The Arbitrator agreed with the Union’s argument that National Truth and Reconciliation Day satisfied the language in the Collective Agreement in that it was “generally celebrated in the area.” The evidence established that the holiday enjoyed wide acceptance and celebration within a geographical area relevant to the Employer. As a result, the Arbitrator held that employees who worked on National Truth and Reconciliation Day were entitled to the same conditions as the statutory holidays listed in the Collective Agreement, including eight hours holiday pay at straight time plus double time for work on that day.
CMAW, Local 506 Marine and Shipbuilders v. Vancouver Shipyards Co. Ltd (“P.Q.” Grievance), 2021 CanLII 138047
The Union grieved the imposition of a 10-day suspension for refusing a drug and alcohol test and the requirement to attend an IME.
The arbitrator held that in the circumstances, including the Employer’s automatic imposition of a 10-day suspension in every case of a positive test or refusal to test, a 6-day suspension was appropriate. On the IME issue, the Arbitrator emphasized that such exams are “extremely invasive” and before initiating one, an employer must inquire into less intrusive methods of obtaining information, and must only seek information that is reasonably necessary, which it had not done here. The Grievor was awarded $5000 in privacy damages.
Telus and Telecommunications Workers Union United Steelworkers, Local 1944 (unreported)
On the merits portion of this case, we successfully argued that the Employer had created a new job and underpaid the employees doing the work in that job. This decision addresses the remedy.
The employer wanted to deduct certain incentive payments from the calculation of the extra wages that they were owed on the theory that “if we had known we had to pay that much in wages, we never would have paid them all this incentive money, we would have paid them far less in our incentive program".
The arbitrator agreed with us that the Employer’s position was speculative and that they could not deduct these monies.
The result was a difference of over $400,000, with the final tally being $740,000.
This was the largest monetary award that the Union had ever achieved for its members. They describe this victory on their website at this link: https://usw1944.ca/articles/concierge-arbitration-win?fbclid=IwAR2BudEvCvhliPFqKulOE-6iEBEimXwBlWBAPGfar7Q1LCmvQqXCGQEoe4A
Providence Health Care (St. Paul’s Hospital) v. Health Sciences Association of British Columbia (unreported)
Lindsay A. Waddell and Natasha L. Edgar successfully represented the Union in this grievance. The Employer had denied the grievor’s request for Special Leave, after she travelled to visit her imminently palliative father on a day that she was booked on Union Leave. In denying her request for Special Leave, the Employer failed to comply with the mandatory language of the Special Leave provision in the Collective Agreement. The Arbitrator agreed that the mandatory language of the Special Leave provision would require specific language prohibiting its application, that the Employer had failed to comply with the requirements of the Special Leave provisions of the Collective Agreement and granted the grievance.
Vancouver Drydock Company Ltd. and Marine Workers & Boilermakers Industrial Union, Local 1 (GC Grievance), 2021 CanLII 150912
In this decision, the Union successfully argued that automatic exclusion of employees on methadone from a safety-sensitive workplace is discriminatory. The Employer refused to allow the Grievor to work because he was undergoing methadone maintenance therapy for opioid addiction. Richard L Edgar and Janna Crown represented the Union and argued that an individualized assessment of the Grievor’s abilities was required. The arbitrator agreed with the Union and struck down the Employer’s blanket rule of not allowing employees to work while undergoing methadone maintenance therapy. Expert evidence adduced at the hearing established that at least some individuals are able to work in safety-sensitive environments while undergoing methadone maintenance therapy, and there was evidence that the Grievor had safely worked for another employer in a similar safety-sensitive environment while undergoing methadone maintenance therapy.
Providence Health Care (St. Paul's Hospital) and Health Sciences Association, unreported
Lindsay A. Waddell and Natasha L. Edgar successfully represented the Union in this grievance. The Employer had prevented the grievor from changing her vacation leave to union leave in order to attend a union training course. In denying the leave, the Employer had failed to follow the union leave requirements in the Collective Agreement. The Arbitrator agreed with the Union that union leave is an important right that had been bargained for, the Employer had not properly complied with the union leave provisions of the Collective Agreement, and granted the grievance.
Read the decision here.