Arbitration Decisions

NCR Pension Decision (decision found at blue link)

The NCR Pension decision was an important for many reasons.  NCR changed their Defined Benefit Pension Plan in 2001 to Defined Contribution, the changeover at that time was optional.  In 2012 NCR tried to move all members to the Defined Contribution Plan.  In the 2001 Plan, there was language on the contracts that read "one-time opportunity", and "One-time choice", the Union argued this was a promise and NCR could not make changes to the Defined Benefits Plan, and the Employer is estopped from doing so.  They also argued, the pension plan is a part of the collective agreement; therefore, the Employer is unable to make any changes without negotiating them.

The Employer argued, the pension plan was not in the scope of the collective agreement.  Alternatively the Union should have tried to negotiate the changes during bargaining in 2012; therefore, the Union is estopped from grieving the change.  

In 2001, the employees were told the pension plan would, "remain in effect as long as you are actively employed by NCR", this is a commitment and a promise to the employees.  It's reasonable to assume no changes would be made.  There was other language that stated NCR could, "amend, modify or terminate the Pension Plan, in whole or in part, at any time".  Because, this language was not in the body of the policy you could assume this language meant the employer could make changes to article 17.02 of the plan.

In the end the Arbitrator ruled in favour of the Union, she accepted the large promise NCR had made in the language and accepted that the Pension Plan could be grieved by the Union, and the employer was estopped from making any changes.  

NCR filed many appeals all the way up to the BC Court of Appeal.  All of those Appeals were denied and the decision stands.  


Trader Corporation Contractor's Decision (decision found at blue link)

The Law on Contractor's can be complicated, especially in a Union Environment.  In this grievance, the Union argued the employer was "Contracting-In".  The employer was using a Recruiting Firm to hire contractors to do the work of bargaining unit employees.  At some point the ratio of Union members to contractors was 11:44.  The Union's argument was simple, the employer is illegally using contractors and these contractors are indeed employees and, therefore; bargaining unit members.  The Union sought inclusion into the bargaining unit, and back payment of Union dues.

The Employer argued that the Union is estopped from grieving the use of contractors and that an agreement made in 2010 between the Union and the Employer, about the existing contractors allowed them to have full-stop ability to use contractors.  They also relied on Past Practice, claiming they've used contractors in the IT Dept since 2003 in the same way, and the Union was "sleeping on their rights".

 During negotiations of the 2010 agreement, the Union first heard of the use of contractors and the number of them being used.  The Union representative refused to bargain declaring these individuals were indeed employees, and he needed to know whose behalf he was bargaining.  The employer refused to give the Union the names of the employees and told the Union Representative that refusal to bargain was, bargaining in bad faith.

After many days of discussion they Union and the Employer entered into an agreement that the existing contractors would be transitioned into employees and ones who did not wish to would have their contracts terminated after sufficient knowledge transfer.  

In 2012 the Union entered into Collective Bargaining, it was then the same Representative of the Union was told by his Shop Steward the Employer was again using Contractors.  The Union Representative thought the Shop Steward must be mistaken and these are indeed "Temporary Employees", they were just acting on the language that was negotiated in 2006 to allow Temporary Employees to work in IT Department on special projects for 12 months.   

Once the Union Representative found out that these individuals were indeed contractors he filed a grievance.  

 The Arbitrator found the employer was breaking the law in their use of contractors and Trader Corp was "Contracting-in".  He also agreed the Employer did need to payback dues to the Union.   Because, the Union was actively bargaining at the point the Contractor issue was live, the Employers estoppel argument was denied.  Different understanding of an agreement does not trump clear language, the collective agreement reads "the Union will not contract out work normally performrd by an employee if it results in a lay off".  Due to that language and the fact that these individual are not contractors the past practice argument from the employer was not accepted.   

An interesting point, even if a Collective Agreement is silent on the use of "Contractor's" it still doesn't allow an Employer to Contract-In. Contracting in is naturally corrosive to Bargaining Unit and over time erodes the Rights of the Members.

Wrongful Termination - Fortis Gas (decision found at blue link)

Being a member of a Union typically means you can’t be dismissed without just and reasonable cause.  Seems like a simple enough term, but it isn’t – there are my factors to be considered for “cause”.  Did the employer use progressive discipline?  Under Wm. Scott the arbitrator asks 3 question which were used to determine this case.

1)      Has the employee given just and reasonable cause for some form of discipline by the employer?

2)      If so, was the discharge an excessive response in all circumstanced of the case?

3)      Finally, if the discharge is considered excessive, what alternative measure should be substituted as just and equitable? 

What the Wm. Scott test lays out is that an employer cannot arbitrarily terminate an employee.  It’s important to note, in discipline and termination grievances the burden of proof is on the employer.


In the Fortis Gas wrongful dismissal, the Union’s position was just that.  Fortis did not have cause to terminate TD, clean and simple.  They had ample evidence to refute the termination. 


The Employer stated in their letter of termination “with your denial when confronted, (you) irreparably breached the trust between the Company and yourself”.  Trust and dishonesty was the reason for termination.


Throughout the arbitration, Fortis made many claims that TD stole their property.  The Union produced evidence to show the materials were purchased by TD and, in fact not stolen.  What makes this case interesting is the testimony of the witnesses.  Their testimony was the polar opposite of one another.  The arbitrator had to find on what fits the preponderance of probabilities.  (what's events are most likely to have occured)


The arbitrator agreed with the Union's arguement and reinstated TD and made him whole.  


A.D.T. Security Services Canada Coverage Decision (decision found at blue link)


In this arbitration hearing, the union felt that the three employees working out of the interior should be considered members because they received their direction directly from management located out of the Burnaby Branch office and were performing the same tasks as employees working in the Lower Mainland. The employer felt that the geographical location for Burnaby employees does not extend to the interior and the geographical location of the interior employees does not extend into the Lower Mainland.


In this case, Branch 79 and Branch 80, both located out of Burnaby, covered all employees excluding administrative and sales staff under Article 101 (a) and (b). The employees out of Branch 80 cover commercial customers while employees working out of Branch 79 cover residential.  Two of the installers/service technicians in this case covered commercial customers while the third did the majority of residential work but did cover some commercial customers.


The question becomes does the location of where you actually get your direction from decide whether the employee is covered under the collective bargaining agreement or does your area of work coverage demine that.

The arbitrator (John Kinzie) took time to consider previous decisions and cases brought forth by both the employer and the union and came to a decision.


The arbitrator decided that the employer had not established a branch in the interior and that customers from the interior were being serviced from its Burnaby office. The employer was also managing its interior employees through the same managers as the lower mainland employees. The interior employees obtained their parts from the Burnaby office just as the lower mainland employees do. Training sessions and time sheet submissions were handled through the Burnaby office. The only difference found was the geographical are they cover and perform their work. During the proceedings it was also discovered that lower mainland employees traveled to the interior to cover and assist the three interior employees from time to time.


He concluded by stating that the two interior employees that did the majority of commercial work should be under the Branch 80 collective agreement for commercial installers and service technicians while the third was not because, the majority of his work was residential. He did note that the residential interior technician would more be suited for coverage under Branch 79.


So this case shows that your geographical location should not exclude your from representation if determined that work performed does not differ from work under the collective bargaining agreement,  direction originates from the branch office that is under the collective bargaining agreement, and training among other things originates from an office covered under a collective bargaining agreement.