Appeal of Arbitration Award – BC Labour Relations Code

 

RICK HOOGSTINS -and- PATR1CK BYERS -and- WESTROC INC., (the “Employer”) -and- TEAMSTERS, LOCAL UNION NO. 213, (the “Union”)

Sharon Kearney, Vice-Chair

Judgment: October 29, 2002

Docket: B339/2002

Counsel: Patrick Byers, for himself Ib S. Petersen, for Rick Hoogstins Donald Bobert, for the Union David Clark and Amy Gough Farnworth, for the Employer

DECISION OF THE BOARD

  1. NATURE OF APPLICATION
  2. Rick Hoogstins and Patrick Byers apply under Section 99 of the Code for reconsideration of an award by Arbitrator James E. Dorsey, Q.C. dated October 25, 2001 (Ministry No. A210/01) (corrected version issued December 24, 2001). The Union and the Employer oppose the application on the grounds that the award is a “consent award” and as such is not reviewable under Section 99.

 

  1. BACKGROUND
  2. The Employer operates a wallboard manufacturing plant (the “plant”). The Union is certified to represent approximately 53 employees at the plant. From 1987 until 2000, the Employer also operated a finishing products warehouse (the “warehouse”). The Union was certified to represent the two employees in the warehouse-Hoogstins and Byers. When the warehouse closed in 2000, Hoogstins and Byers were transferred to the plant.
  3. After their transfer, an issue arose as to whether Hoogstins’ and Byers’ seniority dates should be their original dates of hire into the warehouse or their transfer dates into the plant. The Employer and the Union agreed to have Arbitrator Dorsey arbitrate this issue.
  4. The arbitration hearing was to commence on May 25, 2001 but was adjourned by consent of ail the parties, including Hoogstins and Byers who were represented by legal counsel. Subsequently Arbitrator Dorsey set September 14, 2001 for a pre-hearing conference call with the parties. In the course of this conference call, the Union advised that it had decided to accept a July 4, 2001 settlement offer by the Employer in respect of this matter and the Union and the Employer asked Arbitrator Dorsey to incorporate the proposed terms of settlement into a consent award. Counsel for Hoogstins and Byers objected to the issuance of a Consent Award.
  5. Arbitrator Dorsey invited and received written submissions from all the parties on whether he should issue a consent award. Based on these submissions, Arbitrator Dorsey issued a six-page award entitled “Union and Employer Consent Award”. In it Arbitrator Dorsey sets out the terms of the settlement agreement as follows:
  6. Seniority for the purposes of job posting, lay-off and recall shall be recognized as follows:
  7. a) for Pat Byers from October 23, 2000 and
  8. b) for Rick Hoogstins from October 23, 2000.
  9. Seniority in regard to all other matters in the collective agreement, including but not limited to vacation entitlement and vacation selection, sub-benefits, insured benefits and credited pensionable time within the Westroc hourly pension plan shall be recognized as follows:
  10. a) for Pat Byers from March 27, 1987 and
  11. b) for Rick Hoogstins from July 15, 1993.
  12. Westroc will pay a one-time severance payment in regard to the closure of the finishing products warehouse in Delta:
  13. a) to Mr. Byers in an amount equal to fifteen (15) weeks wages, calculated at forty (40) hours per week at Class 9 of the Board Plant Collective Agreement, subject to applicable federal and provincial deductions and
  14. b) to Rick Hoogstins in an amount equal to nine (9) weeks wages, calculated at forty (40) hours per week at Class 1 of the Board Plant Collective Agreement, subject to applicable federal and provincial deductions.

This is a final and complete resolution of the two grievances of January 18 and 19, 2001 (No. 463-1542 and 820-3939). The union undertakes not to file any further grievances concerning the placement of either Mr. Byers or Mr. Hoogstins on the seniority list under the collective agreement at the wallboard plant. (Award, pp. 5-6)

  1. Prior to setting out these settlement terms, the Arbitrator provided some background information as well as a discussion regarding the Union’s conduct in settling this matter and the applicability of the Employment Standards Act to the settlement agreement.

 

III. ISSUES AND ANALYSIS

  1. Whether Arbitrator Dorsey’s award is truly a “consent award”
  2. In David James Henry, BCLRB No. B432/2001 (Leave for Reconsideration of BCLRB No. B293/2001), the Board confirmed that a consent award is not subject to review under Section 99 of the Code as such an award merely records a settlement agreement reached by the parties. Thus it is not a “decision” of an arbitrator.
  3. Although Hoogstins and Byers may be unhappy with the settlement, there is no dispute that the settlement terms as set out in paragraph 5 above represents the complete resolution of their grievances as agreed to between the Union and the Employer. Legally the Union had carriage of their grievances and could agree to settle them subject to its Section 12 duty of fair representation under the Code.
  4. I am satisfied that the portion of Arbitrator Dorsey’s award which embodies the Union’s and Employer’s settlement agreement is clearly a “consent award” as it is nothing more than a record of the settlement reached between the parties with respect to the grievances concerning Hoogstins’ and Byers’ seniority. Accordingly, I find 1 have no jurisdiction to review this portion of Arbitrator Dorsey’s award under Section 99.

 

  1. Whether there are grounds to review any other portion of Arbitrator Dorsey’s award
  2. As noted earlier, Arbitrator Dorsey included in his award a discussion concerning the Union’s conduct in settling the grievances as it did. Hoogstins and Byers argue that this discussion went beyond simply incorporating the terms of settlement and should be subject to review. The impugned portion of the award reads as follows:

The union has the carriage of the grievances and can agree to settle, even if Messrs. Byers and Hoogstins or other bargaining unit employees disagree with the assessment of competing interests and risks the union made before agreeing to settle or are unhappy with the terms the union has negotiated. The union has had to make the difficult choice between competing interests among bargaining unit employees. It might create a conflict with some of the employees it represents by choosing to support one interest over the other. By negotiating this settlement, it accepts the risk that no bargaining unit employee might be happy and that it might create conflict with several employees. The union has made a difficult choice and, at the same time, negotiated protections for Messrs. Byers and Hoogstins.

The union has not acted in an arbitrary, discriminatory or bad faith manner in choosing to settle rather than proceed through arbitration with its risks and knowledge of an arbitration board’s inability to alter the terms of a collective agreement. Settlement is the most desirable resolution of disputes in the grievance arbitration process and it is an arbitration board’s duty to encourage, foster and sponsor settlements between unions and employers. There are situations where an agreed settlement should not be sanctioned by an arbitration board. This is not one of them and, despite the protestations of Messrs. Byers and Hoogstins, there is no reason for this consent award not to be issued. (Award, p. 4)

  1. Hoogstins and Byers submit that Arbitrator Dorsey ought not to have found that “[t]he Union has not acted in an arbitrary, discriminatory or bad faith manner in choosing to settle rather than proceed through arbitration” as this is the duty of fair representation test under Section 12 of the Code.
  2. The question of whether the Union breached its duty of fair representation in settling the grievances concerning Hoogstins’ and Byers’ seniority is a matter which must be pursued under Section 12 of the Code and not Section 99. Hoogstins and Byers have already filed a Section 12 complaint in respect of this matter. On my reading of the award, I find that Arbitrator Dorsey was not assuming the jurisdiction to answer a Section 12 complaint. Whether the Union acted arbitrary, discriminatory or in bad faith is a decision for the Board to make.
  3. Hoogstins and Byers also argue that Arbitrator Dorsey’s discussion as to whether the settlement agreement complies with the Employment Standards Act goes beyond simply incorporating the terms of settlement and, moreover, that the conclusion he reached is wrong. In their submissions to Arbitrator Dorsey, counsel for Hoogstins and Byers had argued that a consent award could not be issued unless the Arbitrator was satisfied that the settlement proposal “meets or exceeds” the requirements under the Employment Standards Act. Arbitrator Dorsey responded to this argument as follows in the award:

Mr, Petersen submitted, on behalf of Messrs. Byers and Hoogstins, that their termination entitlement under the collective agreement is less than their entitlement under the Employment Standards Act. There was no interruption in their employment. The employer transferred them. This was “reasonable alternative employment” under the Employment Standards Act (s. 65(1)(f)). When confronted with this, Mr. Petersen’s submission shifted to the following:

The severance payment offered by the Employer is a buy-out of a severance obligation that never crystallized because there was no termination. When, and if, they are terminated at some future date they will not be entitled to the severance payment they are entitled to under the Act, and the settlement, therefore, does not meet the requirements of the Act.

When, and if, the employer terminates the employment of Mr. Byers or Mr. Hoogstins, each of them will have the benefit of the terms of the collective agreement like all other employees in the bargaining unit. The Employment Standards Act does not preclude a union from settling a seniority grievance concerning existing and ongoing rights under an existing collective agreement when there is no termination of employment. (Award, p. 5)

  1. As with the Section 12 issue, I find that Arbitrator Dorsey was not assuming the jurisdiction to determine whether or not the settlement agreement complied with the Employment Standards Act, but rather was merely responding to an argument put to him. If the settlement terms do not in fact apply with the Employment Standards Act, the appropriate forum to address such concerns is the Employment Standards Branch.
  2. Finally, Hoogstins and Byers argue that Arbitrator Dorsey denied them a fair hearing when he, over the objections of their counsel, acceded to the Union’s and Employer’s request and issued the consent award. I am satisfied however that Arbitrator Dorsey complied with the principles of natural justice by allowing counsel for Hoogstins and Byers to make submissions and by considering those submissions prior to issuing the consent award.

 

  1. CONCLUSION
  2. The Section 99 application filed by Hoogstins and Byers is dismissed.