BRITISH COLUMBIA LABOUR RELATIONS BOARD
BCLRB NO. B28/2019
OVERWAITEA FOOD GROUP LP
(the “Employer”)
V
UNITED FOOD AND COMMERCIAL WORKERS INTERNATIONAL UNION, LOCAL 1518
(the “Union”)
DECISION OF THE BOARD
NATURE OF APPLICATION
1 The Union applies under Section 99 of the Labour Relations Code (the “Code”) for review of an arbitration award dated September 5, 2018, Ministry No. A-070/18 (the “Award”) issued by Arbitrator Mark J. Brown (the “Arbitrator”). The Award dismissed the Union’s reclassification grievance dated April 13, 2018 (the “Grievance”) for unreasonable delay pursuant to Section 89(f) of the Code.
2 The Award addressed only the Employer’s preliminary objection to the Grievance under Section 89(f) of the Code: that the Union’s unreasonable delay in bringing the Grievance operated to the Employer’s prejudice and detriment (the “Preliminary Objection”).
3 The Union says that it was denied a fair hearing because the Arbitrator made a palpable and overriding error of fact that likely had a determinative effect on the Award.
4 I have read and considered all of the parties’ submissions and find that I am able to decide the application on the basis of those submissions.
AWARD
5 Certain background facts relevant to the Grievance and the Preliminary Objection place the Award in context. I set out below only the Arbitrator’s undisputed findings of fact and the parties’ undisputed assertions of fact relevant to my decision.
6 Letter of Understanding #4 in the parties’ 2008 to 2013 collective agreement (“LOU #4”) provided that employees at the top of the Grid B pay scale with 4,000 or more hours worked could be reclassified as Grid A employees.
7 The Grievance asserts that the grievor should have been reclassified from a Grid B employee to a Grid A employee under LOU #4 as of January 2012.
8 The movement of Grid B employees to Grid A was terminated by the parties’ subsequent 2013 to 2023 collective agreement which was ratified on March 23, 2013.
9 The Union raised the issue of the grievor’s reclassification under LOU #4 with the Employer in January 2017.
10 The Union served notice to re-open the parties’ 2013 to 2023 collective agreement on October 25, 2017.
11 The Union again raised the issue of the grievor’s reclassification under LOU #4 with the Employer in January 2018.
12 The Grievance was filed on April 13, 2018.
13 The parties reached a tentative collective agreement on or about May 28, 2018 which was ratified on June 8, 2018 and took effect as of June 10, 2018.
14 The Arbitrator heard the Preliminary Objection on August 31, 2018.
15 During the hearing of the Preliminary Objection the Employer asserted that the Grievance should be dismissed as untimely given that it had suffered prejudice and detriment as a result of the Union’s delay in bringing the Grievance. The Employer’s allegations of prejudice and detriment included, but were not limited to, the lost opportunity to address the subject matter of the Grievance during collective bargaining in 2013.
16 The Arbitrator stated the test under Section 89(f) as follows: “[t]he Employer must demonstrate that there has been unreasonable delay and that the delay operated to the prejudice of the Employer”: Award, para. 31.
17 The Arbitrator found that the Union’s six year delay in bringing the Grievance was unreasonable and without reasonable explanation: Award, paras. 33 and 34.
18 The Arbitrator found that the ratification of the 2018 collective agreement occurred in “March of 2018”, prior to the filing of the Grievance in “April 2018”: Award, paras. 39 and 40.
19 The Arbitrator dismissed the Grievance under Section 89(f) of the Code on the basis that the Employer “lost the opportunity to address this issue [the Grievance] in collective bargaining” because the Grievance was not filed by the Union “until April 2018, shortly after the [2018] Collective Agreement was ratified”: Award, paras. 40-42.
POSITIONS OF THE PARTIES
20 The Union says that the Award ought to be set aside because it is based on an error of fact that the parties’ 2018 collective agreement was ratified in March 2018 when, in fact, it was ratified in June 2018.
21 The Union also says that once it sets aside the Award the Board should, consistent with Section 2(e) of the Code, decide the Preliminary Objection rather than remit the matter to another arbitration panel or the Arbitrator.
22 The Employer acknowledges that the collective agreement was ratified in June 2018 and not in March 2018 as found by the Arbitrator.
23 The Employer says, however, that the Arbitrator’s error of fact did not likely have a determinative effect on the Award because the Employer had asserted during the hearing of the Preliminary Objection that the Union’s delay caused it prejudice other than the prejudice found by the Arbitrator. For example, the Employer asserted that the lost opportunity to bargain over the subject matter of the Grievance in 2013 was one of the other ways in which the Employer was prejudiced by the Union’s delay. Based on the foregoing the Employer says that the Arbitrator “would have likely found” other prejudice to the Employer and it is, therefore, “unlikely” that the Arbitrator’s error of fact had a determinative effect on the Award.
24 Alternatively, the Employer says that if the Award is set aside the Preliminary Objection should, consistent with Board policy, be remitted to the Arbitrator.
25 In reply the Union says that once the Arbitrator’s error of fact is corrected there is no basis upon which to conclude that the Employer suffered prejudice or detriment. It says that because of the Arbitrator’s error of fact the Award cannot stand and reiterates its position that the Board ought to substitute its own decision. Alternatively, it says the only other available remedy is the remittal of the matter to a new arbitrator.
ANALYSIS AND DECISION
26 Section 99(1) of the Code states:
99 (1) On application by a party affected by the decision or award of an arbitration board, the board may set aside the award, remit the matters referred to it back to the arbitration board, stay the proceedings before the arbitration board or substitute the decision or award of the board for the decision or award of the arbitration board, on the ground that
(a) a party to the arbitration 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 this Code or another Act dealing with labour relations.
27 Section 99(1) is not a full-fledged avenue of appeal: Simon Fraser University, BCLRB No. 16/76, [1976] 2 Canadian LRBR 54, p. 60.
28 The Board will not interfere with an arbitration panel’s findings of fact absent a “palpable and overriding error”: PCL Constructors Pacific Inc., BCLRB No. B327/99 (Leave for Reconsideration of BCLRB No. B208/98), para. 21.
29 The Board’s test for a palpable and overriding arbitral error of fact is whether the error likely had a determinative effect on the impugned award: KONE Inc., BCLRB No. B74/2012, para. 42.
30 The Employer says the Arbitrator’s error of fact did not likely have a determinative effect on the Award because the Arbitrator “would have likely found” the other prejudice caused by the Union’s delay as asserted by the Employer during the hearing of the Preliminary Objection.
31 The Employer’s position effectively invites the Board to make or assume findings of fact and decide this application based on what the Employer says the Arbitrator “would have likely found”, but did not.
32 I am not persuaded that the Board should decide this application based on the Employer’s assertion of what the Arbitrator would have likely found for two alternative reasons.
33 First, the Employer’s position would have the Board make or assume findings of fact that the Arbitrator did not make contrary to the Board’s general policy of non-interference with an arbitration panel’s findings of fact.
34 Second, the Employer’s assertion of what the Arbitrator “would have likely found” is mere speculation. It is trite that the Board will not decide applications based on speculation, bare assertions, or bald allegations: Kamloops Forest Products Ltd., BCLRB No. B379/2000, paras. 29-31; Sodexho MS Canada Limited, BCLRB No. B187/2004, para. 14 (Leave for reconsideration denied, BCLRB No. B323/2004); and Best Facilities Services Ltd., BCLRB No. B133/2013 paras. 14-17. Section 99 review applications are no exception and should not be decided on mere speculation.
35 The Arbitrator accurately stated the test under Section 89(f) of the Code: “[t]he Employer must demonstrate that there has been unreasonable delay and that the delay has operated to its prejudice and detriment”: Award, para. 31.
36 The Arbitrator found that the Union’s delay in bringing the Grievance was unreasonable and caused prejudice and detriment to the Employer because it prevented the Employer from addressing the Grievance during collective bargaining in 2018. That fundamental finding was contingent upon the Arbitrator’s error of fact that the parties’ 2018 collective bargaining concluded with the ratification of the collective agreement “in March of 2018” or approximately one month prior to the Union’s filing of the Grievance on April 13, 2018. In fact, the ratification of the collective agreement occurred on June 8, 2018, approximately eight weeks after the Union filed the Grievance on April 13, 2018.
37 An error of fact on which an arbitration award is contingent, as here, is an error of fact that likely had a determinative effect on the outcome. Accordingly, I find that the Arbitrator’s error of fact concerning the ratification date of the parties’ 2018 collective agreement was a palpable and overriding error that denied the Union a fair hearing.
38 For the above reasons the Award is set aside.
39 The Union says that the Board should substitute its own decision for the Award to expedite the resolution of this matter consistent with Section 2(e) of the Code.
40 Under Section 99 of the Code the Board has the discretion to substitute its own decision for an arbitration award. The Board’s general policy is, however, to remit the matter to its original arbitration panel. The policy is in furtherance of the development of arbitral case law through arbitration: City of Port Moody, BCLRB No. B119/98 (“Port Moody“), paras. 59 and 60.
41 The remittal of a matter to its original arbitration panel is contingent upon whether or not it is reasonable to assume that the original arbitration panel is able to fairly revisit the matter and do justice between the parties: Health Sciences Association of British Columbia, BCLRB No. B409/97, para. 45. This approach requires the Board to consider whether or not the original arbitration panel’s ability to do justice between the parties on remittal has been compromised by the panel’s initial exercise of its arbitral powers. For example, the Board did not remit a matter to its original arbitration panel where that panel’s findings of credibility were material to its original decision: Port Moody, para. 60.
42 In this matter the Arbitrator’s sole error of fact is unrelated to any finding of credibility by him. Further, and more generally, there is no evidence before me to suggest that the Arbitrator’s ability to fairly revisit the matter and do justice between the parties on remittal has been compromised by his initial exercise of his arbitral powers. Accordingly, I find that it is reasonable to assume that the Arbitrator can fairly revisit the matter and do justice between the parties on remittal and that the Preliminary Objection should, therefore, be remitted to the Arbitrator.
43 The remittal of a matter to its original arbitration panel revives the panel’s original powers subject to any direction given by the Board: Fording Coal Limited, BCLRB No. B165/2000 (Leave for Reconsideration of BCLRB No. B366/99) (“Fording Coal“), para. 25. Accordingly, the original arbitration panel must consider the remitted matter “afresh” or “at first instance” subject to the Board’s direction: Fording Coal, para. 22 and Health Employers Association of British Columbia on behalf of Vancouver Coastal Health Authority (Olive Devaud Residence), BCLRB No. B96/2016, para. 33. This means that the original arbitration panel may arrive at the same or a different decision from that set aside by the Board as long as it remains within the terms of its revived jurisdiction: Fording Coal, para. 25.
44 In this matter any Board direction on remittal should address the Arbitrator’s error of fact that ratification occurred in March 2018 when it in fact occurred on June 8, 2018. I therefore find it appropriate to direct the Arbitrator to consider the Preliminary Objection afresh on the basis that the parties’ 2018 collective agreement was ratified on June 8, 2018.
CONCLUSION
45 For all of the above reasons the Award is set aside and the Preliminary Objection is remitted to the Arbitrator with a direction that he consider it afresh on the basis that the parties’ collective agreement was ratified on June 8, 2018.
