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November 9, 2006 |
Issue No. 76 |
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— CONTENT— |
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ACCESS TO JOB APPLICANTS' PERSONAL INFORMATION MUST BE AUTHORIZED BY COLLECTIVE AGREEMENT LANGUAGE, LABOUR BOARD AFFIRMS The British Columbia Labour Relations Board has affirmed an arbitrator's award which held that the British Columbia Freedom of Information and Protection of Privacy Act (FOIPPA) shielded job applicants' personal information from disclosure to the union in staffing grievances, notwithstanding a collective agreement term requiring the employer to "make available to the union on request and within thirty (30) working days, information required by the union." The Board agreed with the arbitrator that, in the absence of a collective agreement term specifically entitling the union to access to job-related information in advance of grievance proceedings, the arbitrator did not have jurisdiction to order such disclosure. In addition, the Board ruled that the union could not show that "the employer's refusal to provide the information interfered with the administration of the union." Details below. ARBITRATOR AWARDS EMPLOYEES DAMAGES FOR DRUG TESTING THAT VIOLATED RIGHTS An Alberta arbitrator has awarded damages of $10,000 to a female employee who was traumatized when she was unreasonably forced by her employer to undergo mandatory post-accident drug and alcohol testing under humiliating and squalid conditions. A male employee who was likewise subjected to drug and alcohol testing without reasonable justification after another relatively minor accident, but under less trying circumstances and with fewer adverse personal consequences, was awarded $500 in damages in the same grievance arbitration. Details below. |
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— DETAILED REPORTS — |
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ACCESS TO JOB APPLICANTS' PERSONAL INFORMATION MUST BE AUTHORIZED BY COLLECTIVE AGREEMENT LANGUAGE, LABOUR BOARD AFFIRMS Under Article 5.04 (entitled "Technical Information") of the University of British Columbia's collective agreement with the Canadian Union of Public Employees, Local 116, which represents some 1,800 UBC support and technical staff, the University is required to "make available to the union on request and within thirty (30) working days, information required by the union such as job descriptions, positions in the bargaining unit, job classifications, wage rates, an explanation of the methods used in job evaluation, and financial and actuarial information pertaining to pension and welfare plans." In a number of job selection grievances, the union asked the University for copies of job applicants' résumés, job applications, and related documentation. The University refused to disclose the requested documents, taking the position that the B.C. Freedom of Information and Protection of Privacy Act (FOIPPA) prohibited it from doing so unless it was ordered by an arbitrator, or the union obtained the signed consent of each job applicant. The union filed a policy grievance, seeking a declaration that in the future the University was required upon request to provide the union with all applicants' résumés, applications, interview notes, rankings and other related documents during the grievance process. In a May 27, 2005 award (see Lancaster's Human Rights & Workplace Privacy E-Bulletin, Issue No. 48), Arbitrator David McPhillips denied the grievance, ruling that in the absence of a collective agreement term entitling the union to pre-hearing disclosure of applicants' information in job selection grievances, he was without jurisdiction to make the requested order. Although FOIPPA s.33.1(1)(d) permits disclosure of an employee's personal information "in accordance with a provision of ... [an] agreement that ... authorizes or requires its disclosure," McPhillips ruled that "there is no basis under the terms of this collective agreement for an arbitration board to interpret a specific section in such a way that the declaration sought by the union could be anchored in that provision." In McPhillips' view, allowing the grievance on the basis of the collective agreement "would require this board to amend or modify the agreement and, in effect, embark on a process of interest arbitration," which would be "improper as it is outside the jurisdiction of a rights arbitration board to do so." McPhillips further ruled that the B.C. Labour Relations Code did not authorize or require disclosure of the requested information for the purposes of FOIPPA s.33.1(1)(c), which provides that a public body may disclose personal information "in accordance with an enactment of British Columbia or Canada that authorizes or requires its disclosure," declaring: "[T]here is no general right of discovery explicitly or implicitly contained in the Labour Relations Code prior to a hearing, let alone during the grievance process or before a grievance is even filed." Moreover, FOIPPA s.3(2), which provides that FOIPPA "does not limit the information available by law to a party to a proceeding," does not apply to the "grievance process," McPhillips held, stating: "[U]ntil a 'proceeding' has commenced, which presupposes the appointment of an arbitration board, there is no right of the union to the documents established under section 3(2) of FOIPPA." Finally, McPhillips rejected the union's argument that it required access to the requested documents in order to discharge its duty of fair representation. Distinguishing UFCW, Local 1518 v. Hudson's Bay, [2004] B.C.L.R.B.D. No. 227 (QL) (BCLRB) (see Lancaster's Collective Bargaining Reporter, July/August, 2004) and CAW-Canada, Local 114 v. P. Sun's Enterprises (Vancouver) Ltd., [2003] B.C.L.R.B.D. No. 301 (QL) (BCLRB) (see Lancaster's Collective Bargaining Reporter, November/December, 2003), in which the B.C. Labour Relations Board ruled that privacy legislation does not affect the employer's obligation to provide the union with employees' names, addresses, phone numbers and other personal information during negotiations, McPhillips ruled that "the information sought in those cases was very benign ... not the type of highly personal information contained in job applications, résumés and interviews which is the subject of the present application." In the result, McPhillips dismissed the grievance, ruling that neither the collective agreement nor the Labour Relations Code gave him jurisdiction to "issue the blanket order requested by the union." The Arguments: The union applied to the British Columbia Labour Relations Board for review of McPhillips' decision under s.99 of the B.C. Labour Relations Code, which allows parties to appeal to the Board from an arbitration award on the ground that it is "inconsistent with the principles expressed or implied in this Code or another Act dealing with labour relations." The union argued that the arbitrator's award was inconsistent with Code principles in that it failed to recognize that the union required access to the requested documents during the grievance process in order to discharge its duties under s.12 of the Code, which provides: "A trade union ... must not act in a manner that is arbitrary, discriminatory or in bad faith ...in representing any of the employees in an appropriate bargaining unit." The union further suggested that, pursuant to the Board's decisions in Hudson's Bay and P.Sun's Enterprises, the university's refusal to provide the union with the requested information in this case constituted an unfair labour practice. The Decision: British Columbia Labour Relations Board Vice-Chair Catherine McCreary dismissed the union's application, affirming the arbitrator's ruling that, "in the absence of a dispute arising under the collective agreement, the arbitrator does not have jurisdiction to order disclosure of the information sought by the union by virtue of Code provisions." Noting that s.89 of the B.C. Labour Relations Code provides arbitrators with "the authority necessary to provide a final and conclusive settlement of a dispute arising under a collective agreement," McCreary ruled: "In this case, no violation of the collective agreement has been alleged. Thus, there is no dispute arising under a collective agreement over which an arbitrator can exercise jurisdiction." McCreary further affirmed the arbitrator's ruling that the job posting provisions of the collective agreement did not give the union a right to the requested documents, stating: "The arbitrator held that granting the union this right allows [it] to achieve by a grievance what [it] could have bargained into the collective agreement, but did not." In any event, McCreary ruled, the Board itself would not necessarily give the union the access that it was seeking. Distinguishing Hudson's Bay and P.Sun's Enterprises, McCreary wrote: "In this case, the union did not show the arbitrator that the employer's refusal to provide the information interfered with the administration of the union. There is no doubt that the union would be able to do a better job more efficiently if it had earlier access to the information sought. However, as noted by the arbitrator, it is not without access to the information. It must file a grievance and appoint an arbitrator first. This contrasts to the Board cases where no other method was available for the union to obtain the necessary information." Dismissing the application, McCreary concluded: " I agree with the arbitrator's concern that to accede to the union's request would require him to modify the collective agreement. That modification should come about as a result of negotiation and cannot be imposed by an arbitrator." Comment: Distinguishing these two cases, McCreary wrote: "While both Chilliwack School Board and Coast Mountain lead to the conclusion that the FOIPPA is not a bar to the disclosure of information between an employer and a union where the union is carrying out its duties as bargaining agent, a distinguishing factor in this case is the lack of foundation in the collective agreement for the disclosure of the information sought. In the collective agreements in the cases under consideration by the Court of Appeal, the employer had agreed that the union was entitled to the information sought. The arbitrator noted the complete absence of such a provision in this agreement and suggested that it be the subject of collective bargaining." In sum, a collective agreement term that may be interpreted as entitling the union to job applicants' information may be seen as a prerequisite to the determination of whether privacy legislation allows such disclosure. Case Name: Canadian Union of Public Employees, Local 116 v. University of British Columbia |
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ARBITRATOR AWARDS EMPLOYEES DAMAGES FOR DRUG TESTING THAT VIOLATED RIGHTS The Facts: On January 31, 2003, while working as a back-up lab technician on the night shift at a strand board mill operated by Weyerhaeuser Company Ltd. in Edson, Alberta, Phyllis Roberto had an accident which resulted in her face and upper body being sprayed with a resin used in the manufacturing process. She was not seriously injured, but her eyes were temporarily affected, and she was told by a manager that the company wanted her to take a drug test in accordance with its new policy that required such testing after workplace incidents. When she asked what would happen if she refused, she was told that if she submitted to the test she would be suspended with pay until the results came back, while if she refused she would be suspended without pay until the company decided what to do. Two managers soon arrived in a company van, escorted her to it, and put her in the back seat. The vehicle had child-proof locks that clicked shut so that she could not get out. She was then driven to a seedy local motel that rented rooms by the hour, where the desk clerk directed her and her two escorts to a room that smelled of stale beer and urine. In the room was an elderly man who was shaking badly. He was, in fact, a former RCMP officer who was to administer the tests and whose tremors were due to a medical condition, but on entering the room the already upset Roberto found the whole environment to be "more like you were there to make a drug deal than to go for an official test." The local union president met them there, and the elderly man administered a breathalyzer test to Roberto at a small table, while the other three men sat on the bed. He then gave her a cup, and told her to go into the strikingly unclean bathroom and fill it with urine, a task she had to carry out while the four men in the room could hear every sound. When she came back into the room and gave the container to the tester, he had to split the contents into two vials but had difficulty doing so because of his shaking. The test results received after several days were negative, but Roberto was so traumatized by the experience that she began suffering nightmares and anxiety at the thought of going to work. Eventually she went off work for a prolonged period and received medical care, but was denied short-term disability benefits. Later in the winter of 2003, a shipping department employee, Len Brown, was similarly ordered to undergo drug testing following an accident at work which caused vehicle damage. Brown was given no choice by the employer but to take a drug test, administered by the same tester but at a less inappropriate motel. The results were also completely negative, and Brown was not as traumatized as Roberto, but he was upset and angered by the whole experience, and especially by the fact that his teenaged children learned that their father had been tested for drugs, because he had to explain to them why he was dropped off at home by management employees in the middle of a work day, and why he was then at home and off work pending the test results. Roberto and Brown filed grievances seeking destruction of the tests and all records pertaining to the matter; compensation for humiliation and loss of dignity, and in Roberto's case for lost wages and benefits; and a declaration that the collective agreement had been breached and an order amending the drug testing policy as appropriate. The Arguments: In asserting its right to act as it did, the employer relied on a new company policy which stated: "Post Accident/Incident testing for alcohol or controlled substance use will be done with the unit manager's approval in cases where one or more of the following occur: a fatality or significant bodily injury; significant damage to Company property or equipment; possible exposure to legal action or liability; significant environmental damage; a near miss that in management's opinion may have resulted in any of the above." For purposes of administering this policy, managers were issued a Quick Guide that provided them with "3 questions to ask yourself for post accident testing: (a) Is there a connection between the employee's employment and the accident? (b) Is it necessary to investigate whether the actions or omissions of the employee contributed to or caused the accident? (c) Will the test assist in the investigation, at a minimum by negating impairment as a possible cause or contributing factor?" The policy also stipulated that an employee who refused to take the drug test would be suspended without pay and required the employee to submit to an assessment by a "Substance Abuse Professional" and to sign a "Commencement of/Return to Duty Agreement" — undertaking to meet with a Substance Abuse Professional (SAP) "as directed by the Company and to adhere to any conditions of treatment determined by the SAP;" agreeing to immediate termination of employment if the employee engaged in "Prohibited Conduct" within two years, failed to meet with the SAP as directed or to comply with the treatment program determined by the SAP, or refused to submit to further drug testing; and authorizing the company to obtain information from the SAP as to the employee's compliance with treatment. The union argued that the policy was unreasonable in purporting to justify post-incident testing without containing limitations designed to ensure that making a request for a test was reasonable in the circumstances. It submitted that the demand for a test as a line of inquiry in each of the present two cases was unreasonable, in the absence of sufficiently serious incidents, and of an adequate investigation. As well, the union submitted that the manner in which the demands for testing were made and in which the tests were carried out was also unreasonable and amounted to a serious affront to the personal dignity and privacy rights of the two employees. This breach of rights, the union asserted, justified an award of damages because of the harm done by the employer's actions. The Decision: In an August 10, 2006 decision, Arbitrator Andrew Sims allowed the employees' grievances, finding that the company's drug policy and the way it was administered were unreasonable and a violation of employee rights, harshly criticizing the way in which Roberto in particular had been treated, and granting all the remedies sought, including monetary compensation. After a detailed review of arbitral jurisprudence, Arbitrator Sims found that the Weyerhaeuser policy was unreasonable in its failure to set an appropriate threshold for the gravity of incidents that would require a drug test. He ruled that "it is not appropriate to override privacy interests in all cases, no matter how small the incident or how remote the employee's involvement or the chance that impairment may have played a role. Without thresholds, post-incident testing amounts to little more then an ever present threat of testing, which, while not quite as intrusive as random testing, suffers from many of the same objections." Moreover, in Sims' view, the policy was deficient and unreasonable in failing to require a reasonable effort to establish whether the circumstances of an incident gave any reason to suspect that drugs or alcohol might be involved and hence that testing would be appropriate. He held that "the policy, to be reasonable ..., must mandate a real investigation and a real exercise of judgment by the responsible manager. It must be written in such a way as to make it clear to the responsible person that they are balancing rights and not simply checking off a list.... [T]he policy should also say directly that, unless circumstances make it impossible, the investigation that precedes the decision ... should include obtaining the individual's account of the event." Sims also found the conditions imposed by the policy on employees who refused post-incident drug tests to be "unacceptable invasions of an employee's rights where their refusal to test is based not on hiding their own drug use but on the employer's own unreasonable conduct." He determined that "[w]here what the employer purports to do involves an invasion of fundamental privacy rights, the exception to the work (or obey) now grieve later rule should apply." While finding that the way the testing policy was applied in the present case was severely flawed in general, Sims was particularly scathing with regard to the treatment accorded to Roberto, observing for instance that "the hotel chosen for Ms Roberto's test was totally inappropriate…. Perhaps it is old fashioned but some people still do draw conclusions from seeing a woman taken by men into certain classes of hotel without baggage in the middle of the day. It is entirely understandable that Ms. Roberto was, as she says, apprehensive and even horrified by what she was being subjected to." Finding that Brown was "subjected to testing in circumstances that were not appropriately justified under the policy, and that were carried out in a way that in several respects [was] unreasonable," but that his damages were limited, Arbitrator Sims awarded him damages of $500 "for the personal indignities and mental suffering to which he was unjustifiably exposed." Sims found the damages suffered by Roberto "far more profound," holding that "the company was bound and determined to have Ms. Roberto tested and their determination to exercise what they perceived as their authority seems to have numbed any sensitivity to her dignity and her right to liberty." Accepting that "this incident was the primary cause of her anxiety and stress following the event and the reason why she was unable to work for an extended period of time," Sims awarded her damages of $10,000 for indignities and mental suffering, in addition to ordering that she be made whole for all income that she lost from being off work. Case Name: Communications, Energy and Paperworkers Union, Local 447 v. Weyerhaeuser Co. |
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