Visit uncharted.ca!
  • authored by Labatt Buster
  • published Tue, Apr 6, 2004

Terminated while Disabled: Labatt's Dirty Little Secret

Hey everybody,
My name is Nick Hughes and I am a 30 year member of the Brewery Workers' Union, Local 300.
I recently happened to stumble upon this forum and decided to take the opportunity to alert the labour community to what I consider to be egregious conduct on the part of my former employer Labatt Breweries (B.C.) and my Union's former Business Agent Rick Sutherland as well as the Union's former legal representatives Victory Square Law Office.
In 1995 I fell victim to Labatt's mid-nineties ‘downsizing' initiative and had my claim for Weekly Indemnity and Long Term Disability wage loss benefits cancelled as a precursor to my termination by Labatt.
But prior to this Mr. Sutherland and the Union allowed another Labatt worker named Michael Nunas to be terminated by the same Employer, notwithstanding we both were disabled and unable to work and had proof of same.
Such a termination is a breach of the B.C. Human Rights Act, and as such is illegal.
Neither of us was ever provided a forum in which to demonstrate and prove our respective disabilities.
Thus I can attest to what I've found to be an unprincipled and ineffectual union that for too long has been corrupted by an unscrupulous Business Agent.
In my case, I was subject to a substantive preliminary arbitration process that was allowed to drag on for nearly eight years with absolutely no relief for me, the grievor.
In the case of Nunas (who incidentally was senior to me) the Union simply washed their hands of him after filing (then later withdrawing) his grievance for unjust termination.
Ironically, it was an arbitration award (absolutely favourable to me and upheld on numerous appeals) that caused the labour relations process to come to a faltering halt.
Because the evidence suggests that neither Labatt nor the Union wished to be burdened by Arbitrator Colin Taylor Q.C.'s December 9, 1999 majority panel decision, and sought to achieve a settlement that actually undermined and moreover, nullified Mr. Taylor's decision.
That settlement has apparently been reached -surreptitiously and without any proper written notification to me -by the Union and Labatt and the matters have been quietly concluded and dispensed with.
As a result I have had to recently file separate Section 12(1) complaints to the Labour Relations Board on mine and Mr. Nunas's behalf regards our Union's abandonment of our respective interests.
We allege fraudulent conduct on the part of the Union and its former legal representatives Victory Square Law Office.
Furthermore, we have provided the LRB with substantial evidence regards same.
Notable is the fact that the Union's representative (in my case) is the current president of the Canadian Association of Labour Lawyers (CALL).
The adjudication of these matters is now pending an initial review by the Board.
Inasmuch as these complaints have been filed with the Board and as such are considered to be in the public domain, my bringing forth these complaints for public perusal is a fairly routine matter for me. After all we've been through at the hands of Labatt and Mr. Sutherland, Mr. Nunas and I have little interest in keeping these matters hush-hush.
On the contrary, we believe the entire labour community should be made aware of Labatt's and the Brewery Workers' Union's respective illegal and immoral actions regards the mistreatment afforded Mr. Nunas and me.
I am convinced only the cold glare of the public spotlight will prompt the parties to take seriously their obligations to Mr. Nunas and me.
Our respective applications to the LRB are available for everyone's perusal and review. Anyone wishing to read them may do so by scrolling down to sleK's reply posted below (04-06-2004 -04:22 P.M.). Look for "The Applications:" and hit the links Nick Hughes and Michael Nunas.
As well the Board's most recent decision in the arbitration of my grievances is available at the following link: LRB decision B10/2002.
It is unfortunate that such action by Mr. Nunas and me has become absolutely necessary. For we have long maintained that the real culprit in these matters is Labatt.
However, given the Union's inaction and its virtual condoning of Labatt's mistreatment of us, it follows that our complaints to the Labour Relations Board must be seen as inevitable.
As I wrote in my recent Section 12 (1) application: '...there can be no room for ‘fence-sitting' in a matter as serious as an Employer's fraudulent denial of disability benefits to a disabled employee, in particular when that denial results in the disabled employee's subsequent termination by the Employer.'
By that I mean the Union either acts to defend its most weakest and vulnerable members or it turns a blind eye and condones such abominable treatment.
Clearly in the case of Michael Nunas and me, the Brewery Workers' Union has opted for the latter.
Personally, I can't think of anything more diametrically opposed to basic trade union principles. Can you?
My name is Nick Hughes and I am the Labatt Buster.

  • posted by sleK
  • Tue, Apr 6, 2004 2:24am

quote:


Our respective applications to the LRB are available for everyone's perusal and review. Anyone wishing to read them may do so by contacting me through this forum with a request to view the material. I will send you the material in PDF file form.


To save you and any interested individuals the trouble, if you send them to me, I'll put them online and post links here in the forum.

Email addy is in my profile.

  • posted by blasdell
  • Tue, Apr 6, 2004 5:57am

welcome LB, look forward to reading your complaint.

  • posted by CUPE_Reformer
  • Tue, Apr 6, 2004 6:18am

posted by Labatt Buster

quote:


Such a termination is a breach of the B.C. Human Rights Act, and as such is illegal.

In my case, I was subject to a substantive preliminary arbitration process that was allowed to drag on for nearly eight years with absolutely no relief for me, the grievor.

We allege fraudulent conduct on the part of the Union and its former legal representatives Victory Square Law Office.

I am convinced only the cold glare of the public spotlight will prompt the parties to take seriously their obligations to Mr. Nunas and me.


Labatt Buster:

Is it too late to make a human rights complaint?

Can you make a complaint against the union's former lawyers?

Concerned about the conduct of a Lawyer

http://www.lawsociety.bc.ca/you&lawyer/frame_you_concerned.html

Can you appeal to anyone in the B.C. Government and Service Employees' Union?

  • posted by concerned citizen
  • Tue, Apr 6, 2004 9:19am

[QUOTE]posted by Nick Hughes:
[QB]As a result I have had to recently file separate Section 12(1) complaints to the Labour Relations Board on mine and Mr. Nunas's behalf regards our Union's abandonment of our respective interests.[QUOTE]
Hope you have not placed too much hope in the Labour Relations Board. It's default mode is to dismiss section 12 complaints. Without an intimate knowledge of how the LRB operates you stand no chance. You have to protect your rights so that you can achieve your goal on judicial review.

  • posted by sleK
  • Tue, Apr 6, 2004 4:22pm

*bump*

The applications:

Nick Hughes
Michael Nunas

  • posted by Labatt Buster
  • Tue, Apr 6, 2004 4:26pm

Regards the Union's lawyer's misconduct I notified the LRB that a complaint to the Law Society may be forthcoming depending on the outcome of my Section 12 complaint -only fair to give the LRB first crack at dealing with this gentleman, who ironically is the president of the Canadian Association of Labour Lawyers.
I am rethinking that course of action and may go ahead and file the complaint, anyway.
As to your suggestion I contact the BCGEU (long affiliated with the Brewery Workers' Union) I recently submitted a confidential e-mail to their "Whistleblower's Web Site" essentially providing them with the information detailed in my posted message, above.
Haven't heard anything back from them.
As for a Human Rights complaint I have brought that up within the context of my Section 12 complaint to the LRB.
Should the LRB fail to consider the Human Rights aspect of my complaint then I suppose a complaint to the HRT may yet be forthcoming.

  • posted by CUPE_Reformer
  • Tue, Apr 6, 2004 9:45pm

posted by Labatt Buster

quote:


As to your suggestion I contact the BCGEU (long affiliated with the Brewery Workers' Union) I recently submitted a confidential e-mail to their "Whistleblower's Web Site" essentially providing them with the information detailed in my posted message, above.
Haven't heard anything back from them.


Labatt Buster:

Jackie Miller, the President of the BC Ferry and Marine Workers' Union has posted in the MfD forum. Perhaps she could help push your whistleblower complaint. She is also concerned about human rights.

http://www.ufcw.net/cgi/ultimatebb.cgi?ubb=get_profile;u=00000484

http://www.bcgeu.ca/index.php4?id=394

  • posted by siggy
  • Tue, Apr 6, 2004 10:01pm

quote:


Should the LRB fail to consider the Human Rights aspect of my complaint then I suppose a complaint to the HRT may yet be forthcoming.


I spoke with the HR coalition today. They suggested it was a good idea to go ahead and file any complaint regardless other processes.

If the complaint is accepted by the tribunal and if that complaint is currently subject to another process, the HR Tribunal may/will most likely just defer the complaint until the current process is complete.

  • posted by CUPE_Reformer
  • Wed, Apr 7, 2004 12:13pm

Jette Steward another worker terminated while disabled.

Former plant worker sues union chief, company

http://www.execulink.com/~justice3/national.htm

  • posted by gbuddy
  • Wed, Apr 7, 2004 9:55pm

LB,

I have downloaded your S.12 application and quickly read through it. You are certainly to be commended for your determination and the thoroughness of your submission. However, as "concerned citizen" commented above, few if any DFR applications are adjudicated impartially by the Board. The 13 Vice Chairs at the Board are key members of the labour relations community, and labour law firms like Victory Square are where many of those same VC's were previously employed (bios for most of them are online at the BC Board Resourcing and Development Office - http://www.fin.gov.bc.ca/abc/boardpages/lrb.html).

Although the Board claims to have "granted" a handful of DFR applications over the years, one needs to look at the substance of those decisions and find out the ultimate outcome for the applicant in order to fully appreciate the agenda.

One unavoidable conclusion is that the Board's mandate includes ensuring that no union officials or staff, nor any employers ever face any accountability for their conduct.

Having said that, I feel the time for some miracles may be at hand. To improve your prospects, you should assume that you will face all the same tactics at the Board that you experienced with the union and employer (surprise!) and you must be prepared to pursue the matter to judicial review. The process for a J.R. petition and hearing is actually much more straightforward than anything you have or will experience at the hands of the "labour relations community".

I suggest you keep us apprised of your progress with the Board, and those of us who have a little more experience with the DFR and JR processes will assist you in any way we can. If you have any specific questions I will be glad to discuss them with you through this thread or by private email.

  • posted by Labatt Buster
  • Sat, Apr 24, 2004 8:36pm

Here's an update of recent developments regards my Section 12 (DFR) complaint:
On April 13, 2004 I received a package from the Brewery Workers' Union, Local 300, the contents of which included numerous transcripts of private and confidential e-mails between the Union, its legal representative as well as Labatt's lawyer.
I'm not sure really what I am to make of this unsolicited material as no accompanying covering letter is provided.

quote:


In my case, I was subject to a substantive preliminary arbitration process that was allowed to drag on for nearly eight years with absolutely no relief for me, the grievor.
Ironically, it was an arbitration award (absolutely favourable to me and upheld on numerous appeals) that caused the labour relations process to come to a faltering halt.
Because the evidence suggests that neither Labatt nor the Union wished to be burdened by Arbitrator Colin Taylor Q.C.'s December 9, 1999 majority panel decision, and sought to achieve a settlement that actually undermined and moreover, nullified Mr. Taylor's decision.
That settlement has apparently been reached -surreptitiously and without any proper written notification to me -by the Union and Labatt and the matters have been quietly concluded and dispensed with.


There is a reference to this (alleged) settlement that indicates the Union may have settled my grievances as well as Labatt's application for Judicial Review of LRB decision B10/2002.
Apparently, my disputes were "settled as a piece of a larger settlement between the parties that involved an unrelated grievance."
That indicates to me that my winning grievances were used by the Union to prop up and facilitate a settlement for someone else's undisclosed and "unrelated grievance" with absolutely no relief for me.
It becomes increasingly clear why the Union has been so reluctant in notifying me of its decision to abandon me in the manner it did.
Regards the complaint currently before the LRB -well I am informed the matter was handed for review to Vice-Chair Alison Macheskie who unfortunately had to step down due to a professional conflict of interest.
I have as yet been unable to determine who the Board has selected in Ms. Macheskie's place.
This phase of the LRB's processing of my complaint (originally filed December 9, 2003) is now approaching the three month mark.
Stay tuned...

  • posted by gbuddy
  • Sat, Apr 24, 2004 10:48pm

quote:


posted by Labatt Buster:

Regards the complaint currently before the LRB -well I am informed the matter was handed for review to Vice-Chair Alison Macheskie who unfortunately had to step down due to a professional conflict of interest.
I have as yet been unable to determine who the Board has selected in Ms. Macheskie's place.
This phase of the LRB's processing of my complaint (originally filed December 9, 2003) is now approaching the three month mark.
Stay tuned...


The Board works in mysterious ways. Off hand, I can't recall any previous case where a VC accepted the assignment then subsequently withdrew because of concerns over a potential conflict of interest.

Ms. Matacheskie is the most recently appointed VC at the Board (Dec. 1, 2003). Her bio is online at the Board Resourcing and Development Office (http://www.fin.gov.bc.ca/oop/brdo/boardView.asp?boardNum=5811):

"Allison Matacheskie holds a Bachelor of Arts from Carlton University in Ottawa and a Bachelor of Laws from the University of Ottawa. Ms. Matacheskie relocated to Vancouver and commenced her articles with the law firm of Stevenson, Norman who primarily specialized in labour law. She then began to practice criminal law as crown counsel before returning to the practice of labour law with Victory Square Law Office. In 2002, Ms. Matacheskie returned to criminal law with the Ministry of Attorney General as a special assignment prosecutor. She is a member of the Law Society of BC and the Canadian Bar Association."

If the potential conflict is due to her connection to Victory Square, then this would make an interesting precedent for DFR cases given how frequently that law firm represents various unions at the Board.

In any case, the Board should have re-assigned the case immediately and should tell you who now has the case.

  • posted by blasdell
  • Sun, Apr 25, 2004 6:42am

quote:


posted by Labatt Buster:
Here's an update of recent developments regards my Section 12 (DFR) complaint:
On April 13, 2004 I received a package from the Brewery Workers' Union, Local 300, the contents of which included numerous transcripts of private and confidential e-mails between the Union, its legal representative as well as Labatt's lawyer.
I'm not sure really what I am to make of this unsolicited material as no accompanying covering letter is provided.

quote:


In my case, I was subject to a substantive preliminary arbitration process that was allowed to drag on for nearly eight years with absolutely no relief for me, the grievor.
Ironically, it was an arbitration award (absolutely favourable to me and upheld on numerous appeals) that caused the labour relations process to come to a faltering halt.
Because the evidence suggests that neither Labatt nor the Union wished to be burdened by Arbitrator Colin Taylor Q.C.'s December 9, 1999 majority panel decision, and sought to achieve a settlement that actually undermined and moreover, nullified Mr. Taylor's decision.
That settlement has apparently been reached -surreptitiously and without any proper written notification to me -by the Union and Labatt and the matters have been quietly concluded and dispensed with.

 

There is a reference to this (alleged) settlement that indicates the Union may have settled my grievances as well as Labatt's application for Judicial Review of LRB decision B10/2002.
Apparently, my disputes were "settled as a piece of a larger settlement between the parties that involved an unrelated grievance."
That indicates to me that my winning grievances were used by the Union to prop up and facilitate a settlement for someone else's undisclosed and "unrelated grievance" with absolutely no relief for me.
It becomes increasingly clear why the Union has been so reluctant in notifying me of its decision to abandon me in the manner it did.
Regards the complaint currently before the LRB -well I am informed the matter was handed for review to Vice-Chair Alison Macheskie who unfortunately had to step down due to a professional conflict of interest.
I have as yet been unable to determine who the Board has selected in Ms. Macheskie's place.
This phase of the LRB's processing of my complaint (originally filed December 9, 2003) is now approaching the three month mark.
Stay tuned...


Hey Labbatt, my advice is to cross reference all documents to the pleadings. Furthermore try not to let any new arguments in (ie. change their story now). The time for adding new arguments should end if you respond to the pleadings. If you decide to respond to the pleadings make sure you state that you deny every single argument unless you specifically agree to it.

Did you recieve documents from the Company?

Look for discrepencies, even small ones. When you have found a small crack between their stories.... expoit it.

These two bedfellows can be made uncomfortable.

  • posted by Labatt Buster
  • Sun, Apr 25, 2004 1:18pm

bb,
Thanks for the tip. All advise is definitely welcomed.

quote:


Hey Labbatt, my advice is to cross reference all documents to the pleadings. Furthermore try not to let any new arguments in (ie. change their story now). The time for adding new arguments should end if you respond to the pleadings. If you decide to respond to the pleadings make sure you state that you deny every single argument unless you specifically agree to it.
Did you recieve documents from the Company?


I have received nothing from the Employer. And it should be noted that the documents received from the Union are not the Union's mandatory response to my complaint.
At this point I'm still waiting for the LRB to determine if a breach of Section 12 may have occurred. As already noted, that determination process has been underway for more than 12 weeks and counting.
Thus neither party has yet been 'invited' by the Board to respond to the allegations contained in my complaint. I guess this is what you mean by "pleadings"?
I'm still waiting...and waiting...and I continue to wait.
This scenario has been playing out for more than nine years! Think about that.
Why should it take so long to determine if a guy is disabled under the provisions of his collective agreement?
The simple reason is that the dispute that evolved from the Employer's denial of my disability benefits (and my subsequent termination while still injured and disabled) became one that had little to do with whether or not I was disabled.
As noted in my Section 12 complaint to the LRB:
"(The Union's lawyer, David) Blair readily acknowledges the parties' concerns in his August 9, 2000 letter to the Board in which he wrote at paragraph 2: 'the preliminary issues...have become more an argument about future arbitrations than Mr. Hughes' claim.'
Perhaps it's cruelly fitting then that the Union apparently settled my disputes with Labatt "as a piece of a larger settlement between the parties that involved an unrelated grievance."

quote:


That indicates to me that my winning grievances were used by the Union to prop up and facilitate a settlement for someone else's undisclosed and "unrelated grievance" with absolutely no relief for me.


Well, thanks for nothing, guys.
I've always said you can count on the Brewery Workers' Union to get its members the bare minimum.
Unfortunately that bare minimum is often zilch.
Stay tuned 'cause I'm just getting started.

  • posted by Labatt Buster
  • Thu, Apr 29, 2004 2:25pm

quote:


Labatt Buster:
Is it too late to make a human rights complaint?
Can you make a complaint against the union's former lawyers?


I would caution anyone against filing a complaint to the Human Rights Tribunal while they have a DFR complaint pending before the LRB.
Unless I am mistaken, the LRB could easily defer a DFR complaint pending the Human Rights Tribunal's decision -a decision that may impact adversely on the LRB's subsequent decision.
A complaint to the Law Society about a Union's lawyer(s) should not have the same weight or effect as a complaint to a government agency such as the HRT.
Am I right on this? Any thoughts out there?
Tell me 'cause I'm about to drop a complaint to the Law Society on my Union's former legal rep.

  • posted by gbuddy
  • Thu, Apr 29, 2004 5:20pm

quote:


posted by Labatt Buster:
Unless I am mistaken, the LRB could easily defer a DFR complaint pending the Human Rights Tribunal's decision -a decision that may impact adversely on the LRB's subsequent decision.
A complaint to the Law Society about a Union's lawyer(s) should not have the same weight or effect as a complaint to a government agency such as the HRT.
Am I right on this? Any thoughts out there?
Tell me 'cause I'm about to drop a complaint to the Law Society on my Union's former legal rep.


I've had no personal experience with the Human Rights Tribunal, but what you suggest sounds likely. I seem to recall other cases where simultaneous actions before more than one tribunal or even before a tribunal and the courts had some negative consequences for the complainant. Not surprising when one realizes the entire "administrative justice" regime appears to be engineered to deny justice to ordinary citizens. It is a factor we all need to keep in mind. I guess this is one example of where professional (and competent) legal counsel would be useful.

As for the Law Society, I've done exactly what you propose and filed a complaint against my (former) union's legal representative. I recommend doing it, however based on the response I got, I would be amazed if they acknowledged any merit to your complaint. My conclusion was that the Law Society's complaints process is largely for appearances only. (And by the way, I reached the same conclusion about the provincial Ombudsman's office.)

To summarize what I received from the Law Society, their position is that a lawyer employed by a union (including one on staff) has no obligation to a union member whatsoever. Their "client" is the union, end of story. They also asserted that my recourse lay with the Labour Board through the DFR complaint they knew was already underway. Nevertheless others to whom I have spoken are of the opinion, which I now share, that it is worth filing complaints against both individuals and agencies wherever an appropriate process exists. At a minimum they go on the record. Though no one will ever acknowledge wrongdoing to us, it is at least possible that an accumulation of complaints will discourage such further behaviour.

  • posted by blasdell
  • Thu, Apr 29, 2004 6:53pm

Labbatt, when you filed your section 12 complaint did yopu copy Labbatts? Do they have status as an intervener?

If and when they become an "interested party", that is the time for a documentation demand.

Surly there is someone at the Board, in Ontario we have a registrar, that schedules hearings. Can they be contacted regularily to speed up the process? A letter to the minister outlining the issues might help to.

  • posted by Labatt Buster
  • Thu, Apr 29, 2004 9:08pm

bb:

quote:


Labbatt, when you filed your section 12 complaint did yopu copy Labbatts? Do they have status as an intervener?
If and when they become an "interested party", that is the time for a documentation demand.


Labatt was provided a copy by the LRB in its notification to them of the complaint. As the Employer they automatically have status as an interested party.

bb:

quote:


Surly there is someone at the Board, in Ontario we have a registrar, that schedules hearings. Can they be contacted regularily to speed up the process? A letter to the minister outlining the issues might help to.


At this point in the initial process I'm a little reluctant to go over the LRB's head to the Minister of Labour -I don't want to go needlessly upsetting anyone -I mean the ball's in the LRB's court and I await their play with obvious anticipation (and admittedly, some apprehension), but patience has been one of my watchwords and I am in for the long haul.

  • posted by concerned citizen
  • Thu, Apr 29, 2004 11:30pm

_quote____________________________________________________________________
At this point in the initial process I'm a little reluctant to go over the LRB's head to the Minister of Labour -I don't want to go needlessly upsetting anyone.
_____________________________________________________________________

It is a known fact that he will not interfer with the Labour Relations Board and will inform you that the Board will adjudicate your complaint fairly. As for patience, we are not talking months but years.

  • posted by Labatt Buster
  • Fri, Apr 30, 2004 11:44am

A new development...
This morning brought a letter from the LRB confirming that mine and Michael Nunas' complaints "disclose a case that a contravention of Section 12 of the code may have occurred" and that "the Union and the Employer are now invited to make written submissions".
Curiously, page two of this letter is headed with Nunas' Case No. and mine is not listed.
And in the list of Interested Parties, whereas Nunas and I are both listed, the Employer named is his recent employer, B.D.L. and not Labatt -which is the Employer in my case.
The "Union and the Employer are now invited to make written submissions in response to the complaints". which must be received by May 10.
The letter also "offers the services of Board officers who are experienced at mediating all types of disputes" and encourages the interested parties to "resolve their own disputes".
I'm a little concerned the Board has gone and consolidated mine and Nunas' complaints, albeit without actually notifying us of same.
For in the case of Nunas, his complaint concerns -on the surface of things -his termination last year by B.D.L.
The Union has subsequently advanced that case and is currently awaiting an arbitration award regards same.
His could be dismissed on that basis, alone.
If my complaint was shot down on the basis of being consolidated with his dismissed complaint -well is that possible?
Perhaps we should enter their mediation game - sort of demonstrate a little reasonableness and a willingness to participate in resolving matters?
Sure would appreciate some input from the forum on all of this...

  • posted by blasdell
  • Fri, Apr 30, 2004 12:50pm

If you decide to play the mediation game, go into with knowing all the rules. It is a ploy designed to avoid a hearing and get you to quit.

I avoided the mediation, you enter a room and must state your case against a room full of people who do not want to go to a hearing. It is intimidating and USELESS unless you are willing to settle.

What I did was write to the concillation officer and say "in order to conserve resources, unless the other parties are willing to change their positions" etc. please schedule a hearing. No problem, the date was set

  • posted by concerned citizen
  • Fri, Apr 30, 2004 4:09pm

____________________________________________________________________
Perhaps we should enter their mediation game - sort of demonstrate a little reasonableness and a willingness to participate in resolving matters?
Sure would appreciate some input from the forum on all of this
____________________________________________________________________
The Board's mediation process is a set up. The opposing parties already know the strength of your case. However, you are unaware of their case, as they have not filed replies. Moreover, because of the nature of mediation there never is a record of the proceedings. Nothing that is said can supposedly be held against the parties. However, as is usual with the Board that law is a one-way street favouring the other parties. I suggest that if you do go to mediation refuse to discuss your application or its merits. If you are going to negotiate limit your discussions to a proper remedy.

  • posted by gbuddy
  • Fri, Apr 30, 2004 6:31pm

quote:


posted by concerned citizen:
I suggest that if you do go to mediation refuse to discuss your application or its merits. If you are going to negotiate limit your discussions to a proper remedy.


Sounds like excellent advice. Anyway, the good news is you've cleared the first hurdle. This letter you received should also have stated that you will have an opportunity for a "final reply" after receipt of the union's and employer's responses.

Actually I don't think you need to worry about the prospect of mediation right now. The very limited reference sounds like standard wording for the Board's correspondence at this stage. I would not assume it means very much. You want to deal first with the initial exchanges now required. The Board apparently reserves for itself the right to compel parties to attend mediation, however I'm not sure if it ever does that and if so, in what circumstances. I would think that is more likely in non-DFR cases when the unions and management are just butting heads and what's really required is not so much adjudication as horse-trading.

I would suggest that you not rule out attending a mediation meeting if one is proposed, however you should not propose one yourself nor respond with any enthusiasm. If such a proposal is made, then take some time to decide what potential benefit it might have and make sure you are as prepared as possible for the experience. I would certainly not go alone. I'd make sure someone was with me to verify what takes place.

Your immediate challenge will be dealing with the union's response. I suspect a significant portion, if not the majority, of Section 12 cases are lost at this stage (since very few ever make it to an actual hearing). The union's counsel will know how the game is played and that this is their best opportunity to defeat your complaint. If they can provide the Board with "facts" and legal arguments from which the Vice Chair can rationalize a dismissal of your case, then you will be given no further opportunity for any submissions beyond you final reply. That reply therefore will likely be crucial. So when you have the other parties' responses in hand seek as much experienced help as you can.

The other thing that would appear to make sense is to write back to the Vice Chair immediately (and copy the other parties) seeking some clarification of the other concerns you've mentioned, particularly the question of consolidating two separate (though related) complaints.

  • posted by Labatt Buster
  • Mon, May 10, 2004 3:54pm

And the Submissions Start to Fly...
Here's the latest on the Hughes and Nunas DFR Complaints.
In my last post (above) I expressed our concerns regards a possible consolidation by the Labour Relations Board of our respective Complaints.
We have since written the LRB for confirmation of our Complaints' status and are awaiting reply.
The Employer's counsel has meanwhile asked for a time extension to make its reply to our Complaints and we are raising an objection to same.

And now for the Good News...
The embattled Brewery Workers' Union currently experiencing labour strife with a strike underway at Labatt's/Molson's BDL distribution plant in New Westminster, has won in arbitration a decision to overturn Nunas' termination last year by BDL while he was disabled with a WCB claim.
The arbitrator's award was also a win for a second employee who was also terminated by BDL while she was on maternity leave from her job.
Ironically, the win however, poses a bit of a conundrum for the Union.
It would appear the Union finds itself of being in the unenviable position of having successfully won in arbitration for Nunas regards his recent termination by BDL, while simultaneously having to defend against Nunas' current Section 12 Complaint in which he accuses the Union of abandoning its grievance of Nunas' earlier termination by Labatt -a case with stunning similarities to the latter BDL termination.
In both cases at issue was the termination of a disabled employee.
And in the BDL case recently won, one determining factor was the collective agreement language that stipulated that:

"Seniority shall not be considered broken by reason of: ...(c) Sickness or injury".

Importantly, this same, identical language is found in the Labatt collective agreement, and is in fact standard in all the Union's collective agreements.
I'm sure all will agree that Nunas' prospects have indeed brightened with this startling, new development.
That such a win should occur just as the LRB has determined his Complaint regards his earlier termination by Labatt discloses a prima facie case aginst the Union...well, that does sound like a bit of a cunundrum doesn't it?
I mean, having to defend its abandonment regards Nunas' earlier termination while virtually and simultaneously successfully overturning a second termination of Nunas that is virtually identical to the original termination...the mind fairly boggles at the prospect.
Perhaps someone here at MfD can comment on the significance of such a scenario?
Anyway, that's all for now...hope you all enjoy your imported beer.

  • posted by Labatt Buster
  • Tue, Jun 15, 2004 3:39am

More News from the Trenches...
There's been some recent and interesting developments in the Hughes and Nunas DFR Complaints, and I wanted to bring the Members of this forum up to date.
As noted in my most recent post above, the Union's lawyer applied for and was successful in acquiring an extension for the Union's response to June 7/04.
I, on the other hand, was initially expected to file our final reply to the Union's 47 page response by June 17th -a feat that would be likely impossible to accomplish given the size of the Union's response which is accompanied by TWO large binders of relevant documents which must be carefully reviewed.
I was later advised (via a telephone conversation with the LRB's case administrator) that a letter is coming which extends my deadline for response to June 30th.
This material certainly makes for interesting reading -in particular the numerous references to telephone conversations and meetings I am alleged to have had with the Union's former Business Agent that never actually transpired.
I was prepared for the 'spin' that the Union would likely place on its version of various events related to its conduct in the administration of our failed grievances -in fact, I expected as much -but I truly was suprised to see so much outright fabrication by the Union in its attempt to paint itself as a benevolent and reliable protector of the rights of its members.
Man, to read this stuff you'd have to come to the absolutely preposterous conclusion that no wrong was ever committed by Labatt nor the Union in the termination of two bona fide injured and disabled workers. I mean the Union literally comes off as heroic. Unbelievable!

Timeliness is Next to Godliness...
Faced with a mountain of damaging evidence, it appears the Union is attempting to persuade the LRB that our respective Complaints have not been filed in a timely manner -and this may well be the case for Mike Nunas.
However, in my circumstances, there was a continuum of related activity beginning when my disability benefits were cut off in January 1995 resulting in my subsequent termination in July 1995, and culminating with the Union's surreptitious settlement of my grievances with Labatt in January 2003, effectively abandoning me and without proper notice of its intention to do so.
Hence, the Union's need to make its false assertions (as noted above) that it had met with me to inform me of the Union's decision to abandon my cause and that I had not availed myself of the Union's internal appeal procedures regarding this abandonment.
Poppycock, I say!

And There's More...
The Union's attached documentation includes the parties' Minutes of Settlement of my two grievances -a document the Union had previously elected not to show me despite my repeated requests to do so.
As I feared, this agreement effectively re-writes the language in the Labatt collective agreement relevant to employees with disabilities and denies them their right to grieve a denial of weekly indemnity and long-term disability benefits.
The Union and Labatt have agreed to literally nullify Arbitrator Colin Taylor's second preliminary award in my case, notwithstanding it was deemed to be in my favour by the Union's current Business Agent.
So much for the concept of binding arbitration -hell, if you don't like the arbitrator's ruling, why you simply agree with the Employer to ignore and not be bound by it in all future proceedings. Just like that.
This will undoubtedly have incalculable and devastating results for many disabled members of my union, not only at Labatt's but at Molson's and throughout the brewing and winery and distilling industry. All these members are adversely affected by this abrogation of the Union's obligation and duty to protect and represent them.
The undeniable reality of the matter is that arbitrator Taylor's second award and its findings have been upheld by numerous appeals and effectively stand as labour law.
Unfortunately, and as a result of the Union's agreement to never refer to it in future proceedings, the only workers precluded from ever benefitting by Mr. Taylor's wisdom are the members of Local 300 of the Brewery Workers' Union -and they're the one's who actually paid for it with their hard-earned union dues. Such cruel irony.

And Just When You Think You've Seen it All...
One other item to note in all this has been an application by (Nunas' current Employer) BDL seeking to be designated an Interested Party to Mike's Complaint -as opposed to their current and rightful designation as his Employer.
We have objected to this change in status and are awaiting a ruling by the Board.
Interestingly, the law firm that represents BDL also happens to be Labatt's legal representation -well, it does cut down on the number of copies of my submissions I'm required to mail everytime.
Well, that's all for now. I have my work cut out for me in preparing our reply to the Union's response. There is much to do.
As always, any input, ideas, thoughts and comments from the Members of this forum regarding any of the above are greatly appreciated. Your continued support of Mike Nunas and me in our attempt to right some wrongs provides us with the inspiration needed to prevail in these matters.
Until the next installment...

  • posted by Duffbeer
  • Tue, Jun 15, 2004 4:06pm

Thanks for the update!

quote:


Interestingly, the law firm that represents BDL also happens to be Labatt's legal representation -well, it does cut down on the number of copies of my submissions I'm required to mail everytime.


You probably already knew that Labatt, along with Molson, ownBDL .

quote:


BDL is a private joint venture company owned by Labatt Breweries of Canada and Molson Breweries for the wholesale distribution of beer and the collection of returnable, refillable and recyclable beer containers within the four Western Canadian Provinces, as well as Northwest Territories and the Yukon.


  • posted by Sophie
  • Tue, Jun 15, 2004 5:01pm

Just popping in to offer my support and let you know that I am following your postings diligently and forwarding them to others who are are interested.

  • posted by Labatt Buster
  • Tue, Jun 15, 2004 10:44pm

posted by Sophie:

quote:


Just popping in to offer my support and let you know that I am following your postings diligently and forwarding them to others who are are interested.


Thanks for your support and interest, Sophie. It's greatly appreciated.
I wonder if you'd seen my other threads in this forum, most notably "Molson's Suckerpunch: The Dick Findlay Story"?
Now there's a story that needs to be told. And he's a guy who could use some support.
But the sad reality is that my Union has in the past turned its back on numerous disabled members of our Local.
And the blame for that, in my view, must be laid squarely at the feet of the Union's former Business Agent (and currently the Union's Secretary Treasurer) who during his 17 continuous years of administering the Local's affairs consistently allowed Labatt's and Molson's to mistreat these workers.
It was just a matter of time before he tried to pull this stuff on the wrong guy -i.e. someone who would take him to task for his transgressions -it just happened to be me, that's all.
An interesting footnote to all this is Rick Sutherland and I happened to start work in the brewing industry on the same day, back in 1974 -although, (I'm told) under remarkably different circumstances.
Nonetheless, I'm senior to him by one name -and always will be.
Thus, during his entire membership in our union Mr. Sutherland has always been a junior member to me.
Perhaps it was inevitable that I would one day become his nemesis. Does anyone out there believe in destiny?
Like they say, what goes around, comes around.
And believe me, Mr. Sutherland's chickens are now coming home to roost.

  • posted by yankeebythewater
  • Tue, Jun 15, 2004 11:38pm

quote:


posted by Labatt Buster:
Does anyone out there believe in destiny?
Like they say, what goes around, comes around.


Destiny - I believe. I have lived by 'what goes around, comes around'.

Thanks LB for the updates - Keep The Faith and Keep The Proof in the MFD Forum not the Pudding!

  • posted by Labatt Buster
  • Sat, Jul 24, 2004 1:01pm

And We're Baaaaaaaaack...
For all those of you who've been hanging on with baited breath for the next installment in the Hughes and Nunas DFR Complaints, wait no more; here's an update.

"Our story so far..."
When we last left our heroes, they were faced with the daunting matter of replying to the Union's 47 page Response to their two, respective DFR Complaints which had been consolidated by the LRB.
After being granted an initial time-extension for filing the Reply, it became apparent that a further extension was going to likely be required, due in part to the enormous amount of inaccuracies, factual errors and inconsistencies in the Union's Response, etc. etc. etc.
And incredulously, the Union raised an objection to our request for additional time for filing our Reply!!
What makes this seemingly churlishness on the part of the Union particularly irksome is that, although I sought to determine the nature of the Union's objection -I mean, they ought to at least have provided a reason, why -I have been unable to ascertain on what basis the Union's objection was even raised.
Even more disturbing was, in granting the Union's objection to our request for more time, the Vice-Chair ruled it was not necessary to provide us with a letter confirming the Union's successful objection to our request.
This then apparently eliminates the need for anything like a, hmm..I don't know..well, like a 'paper trail'?!?
I'm further advised that an appeal of the Vice-Chair's decision must be made directly to the Chairman of the LRB, and that course of action will be forthcoming, I can assure you all.

148 Pages Later....
But the good news is, that after some unbelievably long, marathon, writing sessions, and with my printer on the fritz, I was nonetheless able to complete the Reply -perhaps not the version I would have liked to have submitted, but it'll do in a pinch.
Then, with the help of my good friend Charlie and his amazing Hewlett Packard printer, I was able to print the 148 page document (4 times -ya gotta make copies) and meet the LRB's July 22/04 deadline.
siggy has posted the document below in PDF file format, should anyone require some quality bed-time reading. Scroll down a couple of panels to his link, below.
As always, the thoughts, comments, advice and support of the Members for Democracy are genuinely appreciated. By all means, let's hear your voice.

"...and now, let us pray..."
So now once again, we wait for a decision; one whose effect could hold enormous consequences for the parties, and rightly should.
But in the meantime, on behalf of Mike and me, we'd like to thank a couple of the Members from this forum whose input has been truly invaluable to me in the preparation of our Reply. They are:
concerned citizen and gbuddy. Thanks, guys.

"Stay tuned...."
Well, that's where this episode must come to an end -whew, it's one cliffhanger after another!
But stay tuned for the further adventures of the Labatt Buster and his trusty sidekick, 'Wee' Mikey...it's all comin' at you, real soon! Hiyo Silver, awaaaaaaaaaaaay!

  • posted by siggy
  • Sat, Jul 24, 2004 8:38pm

Nica' read LB and working on the PDF, got it.

This is kind of sync. Right now I am familiar (involved up to my ears) with something along the same lines. While it is not mine to tell, yet, I think I can outline what has happened so far.

It involves a worker who was injured on the job and then consequently the treatment received from the employer and of course who knew, the union.

Because of the ongoing nature of the injury and the ongoing crap from the employer, the worker decided to take matters into hand.

Although the union pleaded for this worker to use the labour process and file a grievance through the union, this worker refused. Nah unh he said, you are the big bad wolf and you can't come in!

Oh yes, there was lots of huffing and puffing, (still is) and when both parties learned that the worker went over all the heads and filed a complaint with Human resources Canada. Well you have to know there was wolf fur on evra'thing.

You see this worker knew that this was not the only time this had happened or the only worker this was happening to and that there was something terribly wrong in the land of make themwork.

So this worker, being a conscious individual, decided that maybe someone could make a difference and set out to do just that.

The workers friends gathered together and then the friends gathered supporting information together and built the strongest house they could out of just paper.

So far the big bad wolf has not been able to blow the house down, despite numerous tries.

It even looks like the wolves will be taken to task for acting like wolves and eating people alive. The end.

  • posted by siggy
  • Tue, Jul 27, 2004 10:26pm

quote:


148 Pages Later....
But the good news is, that after some unbelievably long, marathon, writing sessions, and with my printer on the fritz, I was nonetheless able to complete the Reply -perhaps not the version I would have liked to have submitted, but it'll do in a pinch.
Then, with the help of my good friend Charlie and his amazing Hewlett Packard printer, I was able to print the 148 page document (4 times -ya gotta make copies) and meet the LRB's July 22/04 deadline.
I will be submitting it to siggy in PDF file format for posting on this thread, should anyone require some quality bed-time reading.
As always, the thoughts, comments, advice and support of the Members for Democracy are genuinely appreciated. By all means, let's hear your voice.


here it is folks...

  • posted by sheila
  • Thu, Sep 2, 2004 2:38am

Labatt buster - the law says that arbitrator's
decision is final subject to the judicial review of
the arbitrator's decision. I don't get the impression
that your employer or union filed for judicial review of the arbitrator's decision. Therefore, the arbitrator's decision is final and binding on the parties (employer and union).

In your reply to the union's response note to the Board section 48 (1); 48 (18) (19) of the Ontario Labour Relations Act. I would suggest that you asked the Board in writing whether if has the jurisdiction (authority) to enforce the arbitrator's decision on the parties. Please see below.

48. (1) Every collective agreement shall provide
for the final and binding settlement by
arbitration, without stoppage of work, of
all differences between the parties, arising
from the interpretation, application,
administration or alleged violation of the
agreement, including any question as to
whether a matter is arbitrable. R.S.O. 1990,
c. L.2, s. 45 (1) revised

(18) The decision of an arbitrator or of an
arbitration board is binding

(a) upon the parties

(b) in the case of a collective agreement
between a trade union and an
employers' organizatiuon, upon the
employers covered by the agreement
who are affected by the decision;

(c) in the case of a collective agreement
between a council of trade unions and
an employers' organization, upon the
members or affiliates of the council and
the employers covered by the
agreement, as the case may, who are
affected by the decision; and

(d) upon the employees covered by the
agreement who are affected by the
decision,

and the parties, employers, trade union and
employees shall do or abstain from doing
anything required of them by the decision.

THIS MAY BE IMPORTANT TO YOU.

(19) Where a party, employer, trade union
or employee has failed to comply with
any part of the terms of the decision or
arbitration board, any party, employer,
trade union or employee affected by
the decision may file in the Ontario
Court (General Divisional) a copy of the
decision, exclusive of the reasons
therefor, in the prescribed form, where-
upon the decision shall be entered in
the same way as a judgment or order
of that court and is enforceable as
such.

Labatt Buster the reason I am suggesting that you
ask (in writing) whether the Board has jurisdiction
is because you don't want to waste anymore time
in the wrong jurisdiction if the Board does have the
authority under the LRA to enforce the arbitrator's
decision on your employer and the union. It doesn't
appear based on section 48 (19) of the Act that the Board does, but to be certain asked the Board.

You don't want to do a truck load of work
only to have the Board dismiss your application in
the end because your issue of enforcement of the
arbitrator's decision is in the wrong jurisdiction.

Link: Ontario Labour Relations Act, 1995

http://www.e-laws.gov.on.ca/DBLaws/Statutes/English/95l01_e.htm#BK53

  • posted by sheila
  • Fri, Sep 3, 2004 4:06pm

Labatt's Buster, I've made the mistake of presuming
everyone is in Ontario and therefore in respect of
DFR complaints I have been providing OLRA which of course may not be the correct statute, if you do not preside in Ontario and certainly if you're a federal employee (CLC). If you do not live in Ontario you should be able to find similar provisions
under the related statute in your province.

I've read only a page and a half of the DFR complaint and already have concerns.

Insurance benefits and disability benefits offered
through the employer's group benefit insurance plan
are the same thing. (weekly indemnity or long term
disability benefits). All bargaining unit employees
under a collective agreement can apply for non-
occupational benefits throught their employer's
group insurance plan as per the collective agreement. What that means is that an employee
who is off work for non work-related injury/illness can apply for non-occupational benefits (weekly indemnity benefits or long term disability) but eligibility to qualify for weekly indemnity benefits
or long term disability benefits is determined by the
insurance company, in this case (Manulife).

The employer cannot under a collective agreement
interfere with an employee's right to apply for
non-occupational benefits under its insurance plan,
just as an employer is obligated not to interfere with
an employee's statutory right to file for occupational
benefits (comp.)

If I read the complaint correctly, the release was suppose to be confidential? Obviously it is not
anymore since the union submitted the release
as evidence in the proceeding which by the way is a
public proceeding. Who provided the union with a
copy of the release? Since the union has a copy and was able to submit it as evidence obviously
there has been a breach of the settlement agreement. I don't get the impression that it was the applicant, so it must have been the employer
via the insurance company.

Since I don't have a copy of the settlement agreement I wondering if there is anything in the agreement that indicates what effect if any, on the
terms and conditions of the settlement if there
is a breach of confidentiality?

-employment related statutes and human rights
code are implicit in every collective agreement.
Therefore, if the union and employer in their minutes
of settlement "re-write the language'' of the Labatt
collective agreement to exclude employees with
disabilities from applying for non-occupational
benefits under the employer's insurance plan, the
agreement is nullity (of no force and effect) It violates the human rights code which probibits discrimination on the bases of handicap. This is also
may be referred to as contracting out.

Futhermore, the underlying reason for the termination would be due to handicap contrary
to the human rights code. I would think that the
union breached its duty of fair representation in
negotiating a settlement with the employer that
effectively took the applicants out from the protection of the BC Human Rights Code, which allowed the employer to terminate their employment
due to disability (handicap). We'll have to see what
the Labour Board has to say.

The only problem I see is with the remedy requested, which is I believe that the applicant
wants the union to pursue the employer in regards
to his disability benefits. His lawyer on his behalf entered a settlement agreement with the very insurance company that is to provide the disability benefits. I am afraid to ask what the terms and conditions of the settlement agreement was with the insurance company. I presume that the settlement agreement resolves the issue of the
disability benefits that the insurance company cut
off.

TWO AGREEMENTS:

1. Collective Agreement - agreement between the
employer and union - employer agrees to provide
insurance for non-occupational benefits - to comply
with its agreement to provide insurance benefits
for non-occupational injury/illnees - enters separate
agreement with insurance company

2. Insurance Agreement - agreement between
employer and insurance company - insurance company agrees to pay weekly indemnity benefits
(sick and accident) and long term disability to those
employees who it determines are eligible. -

-employee's doctor completes sick and accident
form- employee returns completed application to employer who then forwards to insurance company - insurance company request employees
medical - reviews medical and determines whether
employee qualifies for weekly indemnity benefits.

What complicates these types of complaints is the
fact that they may be part labour and part civil.
The settlement between the applicant and the
insurance company is not a labour issue.

I think alot is said in the first two pages of the
complaint so I am not going to bother to read the
entire complaint. There is alot of info. in the posting as well. That's my comments for now.



BC Human Rights Code: See s. 13(1), s.14. s.21(1)
s.22 (1)

http://www.qp.gov.bc.ca/statreg/stat/H/96210_01.htm#section13

BC Labour Code; Enforcement section 102 (1) (2)

http://www.qp.gov.bc.ca/statreg/stat/l/96244_01.htm#part8_division3

Reconsideration section 141

http://www.lrb.bc.ca/code/part9.htm#section%20141

  • posted by Labatt Buster
  • Wed, Oct 20, 2004 4:29am

Still Waiting On The LRB...
Sheila, I'm sorry for not replying to you on this thread, but I've been sorta avoiding thinking about all this stuff lately, and only just came across your post.

posted by Sheila:

quote:


Insurance benefits and disability benefits offered through the employer's group benefit insurance plan are the same thing. (weekly indemnity or long term disability benefits).


Are they? I would suggest that insurance benefits are the exclusive domain of an insurance policy, whereas disability benefits are the agreed-to conditions and stipulations of a collective agreement.
These are two, disparate contracts, the former existing between the Employer and an insurance company (in this case, Manulife), the latter between the Employer and the Union.
Should it be found that the insurance policy fails to provide the benefits stipulated in the collective agreement, if there exists any discrepancy, it is without question that the Employer is then liable for those benefits and the Union may go to arbitration to acquire them.
In my case, an arbitrator found discrepancies between the disability tests in the insurance policy and those of the collective agreement in the period covering the first 104 weeks of disability. Had the arbitration been allowed to continue to its logical conclusion, the arbitrator would have also undoubtedly found the existence of a further discrepancy between the policy language and that of the collective agreement for the period of disability beyond 104 weeks, making the Employer liable for the entire claim.
This would have been precedent-setting in terms of my Union's representation of its disabled members, and thus the Union sought to avoid that situation at all costs. "If we do it for you, then we'll have to do it for everyone," was the way the Business Agent explained the situation to me.

more from Sheila:

quote:


All bargaining unit employees under a collective agreement can apply for non-occupational benefits throught their employer's group insurance plan as per the collective agreement. What that means is that an employee who is off work for non work-related injury/ illness can apply for non-occupational benefits (weekly indemnity benefits or long term disability) but eligibility to qualify for weekly indemnity benefits or long term disability benefits is determined by the insurance company, in this case (Manulife).


Sorry, but in my case the arbitrator found as a fact that under the terms of the Labatt collective agreement, eligibility for disability benefits during the first 104 weeks of disability (which included both weekly indemnity and long-term disability benefits) was to be determined by the Employer, and had in fact been "wrongly delegated" to the insurer.
This is simply a case of Labatt "hiding behind the skirts" of its insurance carrier in order to avoid liability for the benefits it had agreed to in the collective agreement.
I would add that this wrongful delegation of eligibility determination had been going on for the better part of 30 years or more. I can't tell you how many disabled Labatt employees' claims had been allowed to be wrongly denied by Labatt's insurance carrier(s) during that time.
What I do know is that long after the issuance of the arbitration award the Union continued to allow Manulife to make decisions on eligibility, never informing its disabled members of the arbitrator's finding in my case, nor it's effect concerning their right to an arbitration for their denied disability benefits.
Thus, the Union effectively allowed Manulife to continue its bullying of these sick and injured workers even though it possessed an arbitration award that indicated this practice was in contravention of the collective agreement.
In the end, the Union and Labatt entered into an agreement whereby the Union would be precluded from ever relying on the arbitration award referred to above (nor to its findings).
So much for the concept of "binding" arbitration; I mean it simply doesn't exist so long as the parties are allowed to agree not to be bound by an arbitrator's decisions and findings, as in this case.
Furthermore, the parties' final settlement of my grievances provides that all future disputes regarding disability benefits would cease to be grievable -effectively transferring the matter of pursuing one's disability benefits (and of course, the costs of that action) from the Union (and the labour relations forum where it rightly belonged) to the employee (and the courts).
I say this agreement constitutes a virtual rewriting of the collective agreement as it pertains to disabled Labatt employees, and has an obvious and perjorative effect on other members of the Brewery Workers' Union whose collective agreements (e.g. Molson's) contain identical language to that of Labatt's.
I say this is nothing less than a knife in the back to the Union's neediest and most vulnerable members: i.e. its injured and disabled.
Is it any wonder that the Union failed to provide me with any notification of this settlement with Labatt?
Still more to come...

  • posted by sheila
  • Wed, Oct 20, 2004 10:55pm

(I have edited this post)

Quote: Posted June 15, 2004
"The Union's attached documentation includes the
parties' Minutes of Settlement of my two grievances- a dcument the Union had previously
elected not to show me despite my repeated requests to do so.
As feared, this agreement effectively re-writes the
language in the Labatt collective agreement relevant to employees with disabilities and denies them their right to grieve a denial of weekly
indemnity and long-term disability benefits."

When you say denial of weekly indemnity and
long-term disability benefits, are you saying that
the employer is not allowing employees with non-
work-related disabilities to apply for benefits under
its insurance plan as per the the collective agreement? In other words, the denial of benefits
is actually the employer refusing to allow the
employee to apply for the benefits therefore resulting in a denial of benefits by the employer not
the insurance company. Would that be correct?

Was it you that was fired while on disability benefits? If yes, have you considered filing a human
rights complaint against both the union and the employer for discrimination on the grounds of disability?

It seems these days where employees have disabilites, particularly long-term disabilites,
whether the disability is work-related or not,
I am beginning to see more and more employers
employing termination as a method of cost
reduction with the unions assistance.

Of interests from Lancaster House:

"Annually, [duty of fair representation complaints] represent close
to 50% of unfair labour practice complaints," Vice-Chair Michele
Pineau of the Canada Industrial Relations Board stated in a decision
issued October 12, 2004. The demands placed on the resources of trade
unions, labour boards and the labour relations system are enormous.

To find out how to minimize these complaints and, if they do occur,
how to resolve them in the most expeditious and least costly way,
attend Lancaster's half-day workshop, Meeting your Duty of Fair Representation,
with Ontario Labour Relations Board Alternate Chair, Mary Ellen Cummings,
and UFCW Counsel Georgina Watts on Friday, November 26, 2004. For
more information or to register:
http://www.lancasterhouse.com/conferences/Toronto/lac/lac04t-dfr.asp

_______________________________________

  • posted by Labatt Buster
  • Thu, Oct 21, 2004 1:49am

posted by Sheila

quote:


When you say denial of weekly indemnity and long-term disability benefits, are you saying that the employer is not allowing employees with non-work-related disabilities to apply for benefits under its insurance plan as per the the collective agreement? In other words, the denial of benefits is actually the employer refusing to allow the employee to apply for the benefits therefore resulting in a denial of benefits by the employer not the insurance company. Would that be correct?


No, I'm saying any dispute regarding the denial of W.I. or LTD benefits is no longer grievable -i.e. no longer subject to the grievance/arbitration process.
Certainly one can apply for the benefits -but if your claim is denied at some point by the insurance carrier, the denial is no longer subject to the standard grievance procedure -i.e. the labour relations forum. The only remedy the claimant now has is in filing a lawsuit against the insurance carrier.
The Union and the Employer have effectively extricated themselves from having to deal with a denial of the benefits provided in their collective agreement by agreeing that eligibility determination for those benefits is to be made by the carrier, and that all future disputes regarding disability benefits are now between the employee and the insurance carrier.
This is a complete reversal of the arbitrator's findings in my case.

more Sheila

quote:


Was it you that was fired while on disability benefits? If yes, have you considered filing a human rights complaint against both the union and the employer for discrimination on the grounds of disability?
It seems these days where employees have disabilites, particularly long-term disabilites, whether the disability is work-related or not, I am beginning to see more and more employers employing termination as a method of cost
reduction.


I was actually terminated after my disability benefits had been discontinued by Manulife Financial -however, the arbitrator determined that Manulife had no authority to make such a decision as to my eligibility for disability benefits, that Labatt had "wrongly delegated" that task to its insurance carrier.
No, I have not filed such a complaint with the B.C. Human Rights Tribunal, but have raised the issue of discrimination on the grounds of disability within the context of my Section 12 complaint to the LRB.
I first made enquiries of the Human Rights people way back in 1997 -as the arbitration got under way. I was told at that time that it was unlikely such a complaint would be given any consideration as my termination had occurred more than a year previous in 1995.
Nonetheless, the Human Rights Code is incorporated into the B.C. Labour Code and thus is applicable to my situation.
Also, I recall reading an LRB decision in which a Section 12 complainant had simultaneously made a complaint to the HRT and the LRB used that as an excuse to put off making a decision regards the matter -the old business of seeking a remedy in two forums was cited.
I would discourage anyone from fighting in two forums at the same time -consider the detrimental effect a loss before the HRT might have on a Section 12 complaint.
However, should my Section 12 complaint be dismissed by the LRB, then a complaint to the HRT would be a logical course of action.
You're right about the "cost reduction" angle, Sheila -I, like my friend Mike Nunas, were simply victims of Labatt's mid-nineties downsizing initiative. A couple of flies in the ointment, if you like.
But the Union's concerns were somewhat different.
You see, if the Union was to put forth an arguement that my termination was discriminatory, then they face the very real likelihood that an arbitrator might find the Union shares in the blame for agreeing (in the collective agreement) to a provision that was discriminatory to a disabled worker and would furthermore, likely be a contravention of Section 12.
And of course, blame translates into liability -something the Union seeks to avoid at all costs.
The foregoing is not simply my opinion -on the contrary, it is taken from the legal opinion provided to my Union by its former legal representatives, and confirmed for me by a well-known Winnipeg labour lawyer, Norm Cuddy.
It's the proverbial Catch-22, and all unionized workers in this country ought to be made aware of its existence.
Forewarned is forarmed!!

  • posted by sheila
  • Thu, Oct 21, 2004 12:20pm

Labatts Buster- could you please post a copy of the arbitrator's decision. Thanx.

I noted that you indicated in your post that you
were terminated in 1995. That was nine years ago.
What year did you file your DFR complaint against the union?

  • posted by Labatt Buster
  • Thu, Oct 21, 2004 12:48pm

posted by Sheila:

quote:


Labatts Buster- could you please post a copy of the arbitrator's decision.


Sorry, but I haven't got a scanner. For your reference though, it was issued December 9, 1999 by Arbitrator Colin Taylor Q.C. - Labatt v Brewery Workers' Union, Local 300.
If you can get to a decent law library I'm sure you could obtain a copy.

  • posted by sheila
  • Thu, Oct 21, 2004 2:54pm

Labatts Buster - you were terminated in 1995 -
the arbitration decision was rendered Dec. 9, 1999,
and your duty of fair representation complaint was
filed when?

I am not really familiar with the location of Labatt's
or your union. Where is the Labatt's factory located
that you worked at?

One More Thing:

Anyone that pays house insurance, car insurance, life insurance etc. knows that it is the insurer that determines whether the person's claim qualifies under the insurance policy. I would think that this would be no different with your former employer's group insurance plan.

  • posted by Labatt Buster
  • Fri, Oct 22, 2004 12:14am

My DFR was filed December 9, 2003.
I worked at Labatt's New Westminster, B.C. plant. Perhaps you heard on the news that Labatt announced last month that it will close this plant April 21, 2005.
This particular plant has functioned as a brewery for more than 100 years -Labatt took it over from Lucky Lager back in 1958.
Interbrew (a Belgian-based multinational brewer) bought Labatt lock, stock and barrel (no pun intended) in 1995 and earlier this year merged with Brazilian-based AmBev (owners of Pepsi).
This deal provides for Interbrew to control its European concerns, while AmBev now is in charge of operations in North as well as South America.

quote:


Anyone that pays house insurance, car insurance, life insurance etc. knows that it is the insurer that determines whether the person's claim qualifies under the insurance policy. I would think that this would be no different with your former employer's group insurance plan.


You know, I think that's what Labatt and the Brewery Workers' Union thought, too.
But the arbitrator determined they were BOTH WRONG!
As I explained above, based on the language of the collective agreement, Arbitrator Taylor (in his "Second Award") found that it was in fact, the Employer's job to make the determination as to eligibility, at least as far as the first two years (104 weeks) of disability are concerned.
That's one reason why the Union agreed to nullify the arbitration award as part of its settlement of my grievances.
And moreover, it's the ONLY reason the arbitration couldn't continue to a logical conclusion.
NOW the situation is as you've described, above.
NOW these matters are no longer arbitrable -all disputes are between the employee and the insurance carrier (Manulife).
Here's the text of the parties' settlement, which I refer to as the Flegel/Puchmayr Deal. Tony Flegel was the plant grievance committee's chair; Chuck Puchmayr was the Union's Business Agent. They're the two Union officials that signed their names to the settlement.
Read it and weep:

Minutes of Settlement
Between:
LABATT BREWING COMPANY LIMITED

And:
BREWERY, WINERY AND DISTILLERY WORKERS LOCAL 300
hereinafter referred to as "the Union"

The parties agree as follows:

1. Labatt agrees to withdraw its judicial review application of BCLRB No. B10/2002 (Vancouver Registry No. L02 1041).

2. Provided Labatt contracts for insurance plans which provide the coverage required under the parties' Collective Agreement, the Union agrees:

a. determinations regarding whether an employee is disabled for the purpose of both weekly indemnity and long term disability benefits are the responsibility of the insurance carrier; and

b. disputes regarding eligibility for such benefits will be between the Claimant and the insurance carrier and hence not subject to the grievance and arbitration procedure.

3. Labatt and the Union agree the December 9, 1999 arbitration award between the parties (the "Second Taylor Award") will be considered a nullity and it will not be referred to or relied upon by either party in any future proceedings. The March 31, 1997 arbitration award by the Taylor Arbitration Board (the "Original Taylor Award") will continue to be of full force and effect.


Dated this 9th day of January 2003.

Labatt Brewing Company Ltd.
Brewery Winery and Distillery Worker Local 300

You see, it's all about liability, and the need for the Employer AND the Union to reduce and in fact eliminate any and all liability regards disability benefits.
My union...nice guys, huh?
So now you know.

  • posted by sheila
  • Fri, Oct 22, 2004 4:03am

Labatts Buster - at the end of the day, doesn't
matter what the union and your former employer
negotiated, the employer has to submit the indemnity forms to the insurance company. The insurance company after reviewing your medical decides whether you qualify for benefits. You did receive benefits for a period of time and the cheques you received was from Manulife (London Life), not Labatts. I am sure that Manulife would have informed you in writing that you qualified for benefits under the policy.

If the employer is deciding, the employer is just
simply deciding whether it will allow you to apply
for benefits. If your employer would not allow
you to apply, then that is grievable because you're
entitled to apply for indemnity benefits under the
collective agreement. But again as to whether you're eligible regardless of what was negotiated
between the employer and union, the insurance
company decides who qualifies.

The union and the employer could agree that,
the employer will decide whether an employee
qualifies for compensation benefits, but the fact is
the claim for benefits is filed with WCB and it
is WCB that decides if a worker qualifies for benefits
irrespective of what the union and employer agreed
to.

The employer could interfere with an employee's
statutory right to file a claim with comp. (which is
by the way illegal) but the employer doesn have
the legal right to determine eligibility. That's up to
the insurance company.

If I recall correctly you settled with the insurance
company before you became aware of the
settlement between the company and the union.
You didn't become aware of the Minutes of Settlement until the proceeding before the labour
board.

  • posted by Labatt Buster
  • Sat, Oct 23, 2004 1:46am

Sheila, with all due respect, you haven't a clue what you're talking about and I have little interest in arguing with you about the facts of my case, which I have endeavoured -unsuccessfully -numerous times now, to explain to you.

quote:


...at the end of the day, doesn't
matter what the union and your former employer
negotiated...


Are you serious? Doesn't matter?
In the labour relations forum "at the end of the day" it's the ONLY THING that matters.

quote:


The insurance company after reviewing your medical decides whether you qualify for benefits...But again as to whether you're eligible regardless of what was negotiated between the employer and union, the insurance company decides who qualifies.


I'll tell you once again, Sheila; you're wrong in your opinion of these matters. I have an arbitration decision by a Q.C., upheld by TWO LRB decisions that confirms exactly how wrong you are. Thus it's not just a matter of opinion, it's an actual piece of labour law -something of which you apparently have no knowledge nor appreciation.

quote:


The union and the employer could agree that,
the employer will decide whether an employee
qualifies for compensation benefits, but the fact is
the claim for benefits is filed with WCB and it
is WCB that decides if a worker qualifies for benefits
irrespective of what the union and employer agreed
to.


I have no idea why you would choose to confuse my case -which is essentially about a denial of benefits for a nonwork-related injury and a subsequent termination -with the Workers' Compensation Board, which has absolutely no bearing on matters.
I'm not even clear as to what your interest is in my case.
But I can tell you this: I have no desire to argue with you about these matters; the significance of which you appear unable or unwilling to grasp.
It is doubtful that in future I will be responding to your misinformed generalizations and asinine opinions about a number of aspects of my dispute with Labatt Breweries. Please keep in mind that I have essentially lived and breathed this stuff for the better part of a decade. I know what I'm talking about, and it's just not that important to me to convince you of the correctness of these matters.

  • posted by sheila
  • Sat, Oct 23, 2004 11:42am

Labatts Buster - I didn't confuse you case. I merely
used WCB as an example. I'll use it again. If the
employer and the union agreed, that the employer
would determine eligibiity for a WCB claim, it would not matter, because the claim has to be filed with WCB, and WCB determines if the claimant qualifies for compensation benefits. The example that I have
described would be no different for indemnity
benefits since it is the insurance company that pays out those benefits, not the employer. The insurance company determines whether the worker's injury/illness qualifies for non-occupational benefits (indemnity benefits and long-term disability benefits).

One More Thing: Don't misunderstand me. I am not
saying that your facts are wrong. Based on the
Minutes of Settement in your post of October 22,
2004, I would presume that the collective agreement indicates the opposite? I think that you
have indicated that already in one of your earlier post, that the parties agreed that the employer
would determine eligibility.

Well, I would think if the employer determined eligibility and you were denied, it would mean then that the employer prevented you from applying for sick and accident benefits under its insurance plan, which the collective agreement allows you to do (apply). You may have provided the paperworker to the employer but the employer did not
submit the paperworker to the insurance company,
in effect denying you the right under the collective
agreement to apply for indemnity benefits and/or
long term disability benefits.

If you collected indemnity benefits, then obviously
the employer submitted the paperwork to the
insurance company and it determined eligibility, irrespective of what the collective agreement indicates. If you were denied, then the issue is who denied the benefits: the employer or the insurance company? And secondly, why would the
parties negotiate into the collective agreement
that the employer determines eligibility, when in fact
its the insurance company that determined if the
worker qualifies for benefits(that's if in fact that's what the parties negotiated).

Minutes of Settlement
Between:
LABATT BREWING COMPANY LIMITED

And:
BREWERY, WINERY AND DISTILLERY WORKERS LOCAL 300
hereinafter referred to as "the Union"

The parties agree as follows:

1. Labatt agrees to withdraw its judicial review application of BCLRB No. B10/2002 (Vancouver Registry No. L02 1041).

2. Provided Labatt contracts for insurance plans which provide the coverage required under the parties' Collective Agreement, the Union agrees:

a. determinations regarding whether an employee is disabled for the purpose of both weekly indemnity and long term disability benefits are the responsibility of the insurance carrier; and

b. disputes regarding eligibility for such benefits will be between the Claimant and the insurance carrier and hence not subject to the grievance and arbitration procedure.

3. Labatt and the Union agree the December 9, 1999 arbitration award between the parties (the "Second Taylor Award") will be considered a nullity and it will not be referred to or relied upon by either party in any future proceedings. The March 31, 1997 arbitration award by the Taylor Arbitration Board (the "Original Taylor Award") will continue to be of full force and effect.

Dated this 9th day of January 2003.

Labatt Brewing Company Ltd.
Brewery Winery and Distillery Worker

  • posted by siggy
  • Sat, Oct 23, 2004 11:59am

quote:


If the employer and the union agreed, that the employer would determine eligibiity for a WCB claim, it would not matter, because the claim has to be filed with WCB, and WCB determines if the claimant qualifies for compensation benefits


In it's purest form maybe - however, it's employer premiums which influence the direction of wcb boards and ultimately - via logical trough deduction - wcb decisions.

There are a few things workers can do to protect themselves from wcb professionals and from biased decisions or undue pressure. WCB clinics (which are usually privately owned) can, if you ask, provide a list of professionals from which you can actually choose, granted many practice exclusively thru wcb, but there are some on the list who don't.

The other thing to make note of, is that many medical specialists are not usually reliant on wcb cases, they have unrelated income and are less likely to be beholding to the "system" - like your regular wcb gp's who practice exclusively in the wcb field.

  • posted by sheila
  • Sat, Oct 23, 2004 12:30pm

quote:


posted by siggy:
[QB][QUOTE] If the employer and the union agreed, that the employer would determine eligibiity for a WCB claim, it would not matter, because the claim has to be filed with WCB, and WCB determines if the claimant qualifies for compensation benefits


In it's purest form maybe - however, it's employer premiums which influence the direction of wcb boards and ultimately - via logical trough deduction - wcb decisions.

Siggy true, but the bottom line is the final decision as to eligibility comes from the insuance carrier,
not the employer. The worker can argue undue influence, bias and/or conflict of interest, etc, etc,
when they're litigating the matter but it is the insurers written decision that is put before a decision maker adjudicating the dispute. So, again in terms of Labatt's case there would have to be a determination as to who denied the benefits. Was it the employer or the insurance company. If it was the employer then the issue is grievable. If it was the insurance carrier, then the issue is not grievable and the worker would have to resolve the dispute him/herself with the insurance company.

The insurance company is not a party to the
collective agreement. Only the employer and the
union are parties to the collective agreement.
Therefore, if the insurance company denies the
benefits, the worker has to deal with the insurance
company him/herself. If it turns out that it was
the employer that denied the workers benefits by
virtue of not filing the paperwork with the insurance
company, or an out right refusal, then the denial is coming from the employer. The worker can file a grievance because
the collective agreement allows workers to apply
for sick and accident benefits under the employers'
insurance plan for non-occupational benefits.
The employer failing to submit the paperwork or out right refusal is in effect denying the worker the right to apply for sick and accident benefits and/or long-term disability benefits. The aforemention would be a breach of the collective agreement and
therefore would be arbitrable.

One More Thing: The other reason a worker would
need to determine who denied the benefits, is
because the worker would also have to determine
who has jurisdiction over the matter. Is it the
courts or an arbitrator. Is there an overlap of issues in which, both the courts and arbitrator
may have jurisdiction. In other words, some of the
issues in dispute an arbitrator has jurisdiction. And
other issues , an arbitrator may not have jurisdiction and the courts may.

It is not always clearly evident as to who has jurisdiction over various issues. But in time you may figure out that issue that has been put before an arbitrator or a labour board should be in the court or vice versa or none of the aforementioned but in another forum altogether, for instance Human Rights Commission.

  • posted by Labatt Buster
  • Sat, Oct 23, 2004 1:02pm

I'll say it again, one last time:
In my case, the case in question, the arbitrator determined that Labatt had "wrongly delegated" to Manulife Financial the task of determining my eligibility for disability benefits.
The real significance of this important finding, as I see it, is the realization that this improper administration of disabled Labatt workers' claims for disability benefits stipulated in the collective agreement had been so improperly applied for the better part of THREE DECADES!!!
That is the extent of the abuse of these workers by this Employer, with this Union's acquiescence.
But the Union's response to this revelation was NOT to ensure that in future such claims would be administered properly in accordance with the arbitrator's finding.
On the contrary, the Union entered into an agreement (reprinted above) that called for a nullification of the arbitration award, much to the detriment of the Union's own disabled members.
The Union went even further by ensuring that any and all future disputes concerning disability benefits would be between the worker and the insurance carrier and no longer be subject to the grievance/arbitration process.
As I see it, that constitutes a take-away of an important collective bargaining right and effectively amounts to a re-write of the collective agreement, and one favourable ONLY to Labatt.
Again, I ask that contributors to this thread refrain from confusing my case with matters pertaining to Workers' Compensation. This is not a WCB case, and as such Workers' Compensation (procedures, rules, etc.) has no relevance to the matters at hand.

  • posted by siggy
  • Sat, Oct 23, 2004 1:05pm

quote:


The insurance company is not a party to the
collective agreement. Only the employer and the
union are parties to the collective agreement.


I have to disagree, I won't buy into that logic, it's their argument that the insurance is at arms length - if that's the case then negotiating benefits without an assurance that the insurer is dependable - good for the benefits negotiated - would constitute fraud, or the very least, negligible on the part of the representatives.

sorry LB

  • posted by Labatt Buster
  • Sat, Oct 23, 2004 1:47pm

posted by siggy:

quote:


I have to disagree, I won't buy into that logic, it's their argument that the insurance is at arms length - if that's the case then negotiating benefits without an assurance that the insurer is dependable - good for the benefits negotiated - would constitute fraud, or the very least, negligible on the part of the representatives.


Sig, you've aptly described the case of my friend and fellow disabled and (likewise terminated) Labatt employee, Mike Nunas. (See the thread Cheated by Labatt: The Mike Nunas Story in the General Mayhem forum)
Nunas' disability benefits were cut off in May 1994 by Labatt's original insurance carrier Confederation Life about one month prior to Confederation's slide into receivership.
The entire Group Claims (Canada) would later be purchased by Manulife (effective August 30/94) with a proviso that Manulife would bear no liability for LTD claims incurred prior to Manulife's take-over.
The upshot of this was that Nunas found himself effectively without an insurer.
An element of fraud existed here (and brought to the LRB's attention in Nunas' recent dismissed Section 12 complaint) with the existence of an oral agreement between Labatt and the Union that the take-over of the policy by Manulife would result in "no interruption of coverage" for Labatt employees.
This was clearly not the case for Mr. Nunas who would later be terminated by Labatt (December22/94), notwithstanding he was still disabled and unable to work.

  • posted by sheila
  • Sat, Oct 23, 2004 2:15pm

quote:


posted by siggy:
[QB][QUOTE]The insurance company is not a party to the
collective agreement. Only the employer and the
union are parties to the collective agreement.


I have to disagree, I won't buy into that logic, it's their argument that the insurance is at arms length -

I am sorry you don't agree, but if you review labour
laws, the statues will state who the parties to a
collective agreement are, and an insurance company is not one of them. That is the reason the insurance company wouldn't be a party in a the
dispute between the employer and the union at
a arbitration hearing. The parties (employer and
union) are in dispute over provisions of the collective agreement that they negotiated. The
insurance company had nothing to with that the
provisions that parties negotiated in the collective
agreement.

  • posted by siggy
  • Sat, Oct 23, 2004 3:01pm

quote:


(See the thread Cheated by Labatt: The Mike Nunas Story in the General Mayhem forum)


I've just re-read this thread and will go back and check out Mike's.

asidish: What we musn't forget in our discussions is how difficult it is for the presenter to adequately and clearly present his/her own personal labour issue on a forum but also how difficult it is for the reader to understand, to pick up all the nuances of the issue - especially when it's not familiar territory.

What I've seen developing in these discussions is some really incredible communication thingies.

I think LB touch'd on this in a previous post, and it's backed up by Taylor arb decision, the point to be made, regardless of employer/union arguing to the contrary when it suits their purpose, is that - when there is a collective agreement in place, inclusive of benefit language, then the collective agreement sets out benefit eligibility. The parties to the agreement are responsible for picking up the slack.

It is not legally acceptable that the parties can shirk responsibility and try to pass it off - according to Sheila's argument - to a non-participating party - ie: "it's the insurers fault you don't qualify!"

  • posted by Labatt Buster
  • Sat, Oct 23, 2004 3:20pm

posted by Sheila:

quote:


The parties (employer and
union) are in dispute over provisions of the collective agreement that they negotiated. The insurance company had nothing to with that the provisions that parties negotiated in the collective agreement.


The foregoing is precisely what the arbitration in my case dealt with -at least during the preliminary hearing phase (resulting in the first or "Original" Taylor Award).
This was as a result of Labatt's preliminary objection to the arbitrability of the matter of the denial of my W.I.
The question raised by the Union in response to the Employer's objection was: what disability test was applicable? and in what forum should the dispute be held?
Because matters were further complicated by the existence of discrepancies in the disability tests between the language of the collective agreement and that found in the insurance policy, an appeal of the "Original" Taylor award (which had proved to be inconclusive) was filed by the Union under Section 99 of the B.C Labour Code.
A Section 99 decision by the LRB confirmed if there was a discrepancy in the language, then the collective agreement must prevail, and that furthermore the matter would be arbitrable.
It was only after the arbitrator issued his "Second Taylor" award, in which he examined "Article 9 -Social Security" of the Labatt collective agreement in its entirety, that he identified the significant language pertaining to eligibilty determination for the first 104 weeks of disability, and found that it was indeed, Labatt that should have made that determination, NOT MANULIFE.
It was this "Second Taylor" award that the parties sought to nullify and not be bound by.

  • posted by Labatt Buster
  • Sat, Oct 23, 2004 3:40pm

posted by Siggy:

quote:


It is not legally acceptable that the parties can shirk responsibility and try to pass it off - according to Sheila's argument - to a non-participating party - ie: "it's the insurers fault you don't qualify!"


You're right. It's not legally acceptable. It's what I refer to as "hiding behind the insurer's skirts".
However, "legally acceptable" or not, in my case that didn't stop Labatt from pursuing that arguement in a vain and desparate attempt to avoid (i.e. "shirk") its own liability.
Unfortunately, in the end the Union saw fit to give Labatt everything it wanted, despite holding all the winning cards in the arbitration.
There is evidence (in the form of an e-mail between the parties' lawyers, and provided to me by the Union) that the settlement that the parties entered into on my behalf (see the "Flegel/Puchmayr Deal" above) formed part of a larger settlement of an unrelated grievance.
In other words, my winning arbitration award was used to effect a settlement of someone else's unrelated grievance, and was done so surreptitiously without any notification to me.
The Union has since denied this allegation, claiming the lawyer for Labatt who wrote the e-mail was mistaken.
Who ya gonna believe?

  • posted by sheila
  • Sat, Oct 23, 2004 5:50pm

quote:


posted by Labatt Buster:
posted by Sheila:

quote:


The parties (employer and
union) are in dispute over provisions of the collective agreement that they negotiated. The insurance company had nothing to with that the provisions that parties negotiated in the collective agreement.

 

The foregoing is precisely what the arbitration in my case dealt with -at least during the preliminary hearing phase (resulting in the first or "Original" Taylor Award).
This was as a result of Labatt's preliminary objection to the arbitrability of the matter of the denial of my W.I.
The question raised by the Union in response to the Employer's objection was: what disability test was applicable? and in what forum should the dispute be held?
Because matters were further complicated by the existence of discrepancies in the disability tests between the language of the collective agreement and that found in the insurance policy, an appeal of the "Original" Taylor award (which had proved to be inconclusive) was filed by the Union under Section 99 of the B.C Labour Code.
A Section 99 decision by the LRB confirmed if there was a discrepancy in the language, then the collective agreement must prevail, and that furthermore the matter would be arbitrable.
It was only after the arbitrator issued his "Second Taylor" award, in which he examined "Article 9 -Social Security" of the Labatt collective agreement in its entirety, that he identified the significant language pertaining to eligibilty determination for the first 104 weeks of disability, and found that it was indeed, Labatt that should have made that determination, NOT MANULIFE.
It was this "Second Taylor" award that the parties sought to nullify and not be bound by.


This is the first time that you have mentioned
social security. That puts a different spin on
your case. I am not familiar with social security
clauses and I am not quite sure what it means,
but if you collective agreement states that you
are entitled to this social security, and your
employer denies you the right to it, then I guess
you are entitled, but then again it depends who
has the legal right to determine eligibility. I am sure
whatever it states in your collective agreement,
you do not become autmatically eligible for
benefits under the employers insurance plan,
no matter what you call the benefits. If the benefits
are being paid out by the insurance company, the
insurance company determines eligibility.

I'd really like to see copies of the arbitration decisions. Perhaps you have a friend that has a
scanner.

  • posted by siggy
  • Sat, Oct 23, 2004 6:25pm

quote:


If the benefits are being paid out by the insurance company, the
insurance company determines eligibility.


No-one is disagreeing on that point Sheila. Yes, insurers set out plan eligibility requirements. But ultimately the employers purchases the plan and it's those eligibility requirements which make their way to the negotiating table and into collective agreements.

If an employer purchased fully loaded vehicles, and the union was able to negotiate one of those vehicles into the collective agreement for each employee, the employer could not then turn around and say oops, you don't get a fully loaded vehicle, you get a horse and buggy because the car dealer scammed us.

The employer is contractually bound to provide the vehicle as set out by the collective agreement. And the union should not be party to talking employees into accepting the horse and buggy.

  • posted by Labatt Buster
  • Sat, Oct 23, 2004 6:28pm

posted by Sheila:

quote:


If the benefits
are being paid out by the insurance company, the
insurance company determines eligibility.


But if the insurance policy does not comply with that which the collective agreement provides for as in THIS case, then it is the Employer that is liable for the benefits and the Union has the right to arbitrate to obtain them.
It ain't rocket science, but it IS basic labour law. That's why we have an arbitration process, in order to make that kind of determination.
As I've repeatedly stated to you, this was decided by an arbitrator back in December 1999, so I don't know why you wish to keep flogging this 'dead horse' of yours. Enough already.

quote:


I am not familiar with social security
clauses and I am not quite sure what it means...


The Social Security section of the collective agreement is simply the section that deals with benefits such as W.I. LTD, Medical/Dental, Accidental Death and Dismemberment and Pensions etc.

  • posted by Labatt Buster
  • Sat, Oct 23, 2004 6:36pm

posted by Siggy:

quote:


quote:
posted by Sheila:
If the benefits are being paid out by the insurance company, the
insurance company determines eligibility.
------------------------------------------------------------------------
No-one is disagreeing on that point Sheila.


I AM!!! Vehemently...see my post, above.

  • posted by siggy
  • Sat, Oct 23, 2004 6:59pm

quote:


I AM!!! Vehemently...see my post, above.


see my post above ^^^

Ok maybe I should have said something like - who defines eligibility is irrelevant, eligibility was set out in the collective agreement and the parties to the agreement are contractually obligated to live up to it?

  • posted by sheila
  • Sat, Oct 23, 2004 7:23pm

quote:


posted by siggy:

quote:


I AM!!! Vehemently...see my post, above.

 

see my post above ^^^

Ok maybe I should have said something like - who defines eligibility is irrelevant, eligibility was set out in the collective agreement and the parties to the agreement are contractually obligated to live up to it?


Well, the parties can't live up to the collective
agreement if the parties did not have an agreement
with the insurance company. In other words,
you can't force the insurance company to comply
with the eligibility provision of the collective
agreement when it never agreed to it to begin
with. It was't a party. The insurance company doesn have a contract agreement with the union
and employer.

Eligibity may not be relevant but what is relevant
is who has the legal authority to determine eligibility.

The parties, the employer and the union can't comply with the eligibility provision of the collective
agreement because eligibilty is determined by
the insurance company who is not a party to the
collective agreement, irrespective of what is indicated in the collective agreement. If the rance company denies eligibility there is nothing the employer and the union can do, even though they may have purport to agree the employer determines eligibility. You can't get blood out of
stone. You can't make the employer comply with
the provision, when eligibility in reality is determined by a third party (insurance company)
(insurance company) that is not
a party to a collective agreement. The insurance
company is under no legal obligation to comply
with an agreement between the employer and the
union. That would not make any sense.

One More Thing: the employer and union may
want you to believe that the employer determines
eligibility benefits under its insurance plan, but the fact is, it is the insurance company that makes that
decision on eligibility.

  • posted by Labatt Buster
  • Sat, Oct 23, 2004 7:25pm

posted by siggy:

quote:


..Ok maybe I should have said something like - who defines eligibility is irrelevant, eligibility was set out in the collective agreement and the parties to the agreement are contractually obligated to live up to it?


I think you mean determines eligibility -and it's not irrelevant, at all, particularly when the collective agreement and the insurance policy have eligibility determination tests that are in variance to each other, as in this case.
What is most revealing (to me) is that it took an arbitrator in 1999 to make the correct interpretation of the relevant collective agreement language that had been in place and unchanged for some 30 years or so.
This tells me that my case was apparently the FIRST time that the Union had ever bothered to challenge Labatt regards a denial of benefits to a disabled employee.
I can assure you though, this was not the first instance in which a Labatt employee was cut off by the insurer during his first 104 weeks of disability -in apparent contravention of the collective agreement as determined by Arbitrator Taylor.
And given the terms of the parties conclusive settlement, it undoubtedly won't be the last.

  • posted by Labatt Buster
  • Sat, Oct 23, 2004 7:49pm

posted by Sheila:

quote:


Eligibity may not be relevant but what is relevant is who has the legal authority to determine eligibility.


I would add, not just "the legal authority" but moreover the onus to make the determination.
And in this case an arbitrator (with a great deal of "legal authority") determined that for the purpose of eligibility for disability benefits in the first 104 weeks of disability (which includes 26 weeks of W.I. and 78 weeks of LTD) it is the Employer, Labatt that is charged with the duty to make that determination.
Furthermore, that decision was upheld on appeal by Labatt in two, separate LRB decisions.
Sheila, I don't know understand why you have so much trouble accepting an arbitration/LRB decision.
Go to the B.C. LRB's web-site -look up the decisions: they are BCLRB No. B163/2000 and B10/2002.
Good grief, I'm outta here.

  • posted by siggy
  • Sat, Oct 23, 2004 8:18pm

quote:


I think you mean determines eligibility -and it's not irrelevant, at all, particularly when the collective agreement and the insurance policy have eligibility determination tests that are in variance to each other, as in this case.


I should have quit while I was ahead.

I didn't mean eligibility determination was irrelevant to the cases, I was trying to point out that it was irrelevant to wrestle over it as the LRB ruling decided that issue.

Ok breaktime!

  • posted by sheila
  • Sat, Oct 23, 2004 10:03pm

quote:


posted by Labatt Buster:
posted by Sheila:

quote:


Eligibity may not be relevant but what is relevant is who has the legal authority to determine eligibility.

 

I would add, not just "the legal authority" but moreover the onus to make the determination.
And in this case an arbitrator (with a great deal of "legal authority") determined that for the purpose of eligibility for disability benefits in the first 104 weeks of disability (which includes 26 weeks of W.I. and 78 weeks of LTD) it is the Employer, Labatt that is charged with the duty to make that determination.
Furthermore, that decision was upheld on appeal by Labatt in two, separate LRB decisions.
Sheila, I don't know understand why you have so much trouble accepting an arbitration/LRB decision.
Go to the B.C. LRB's web-site -look up the decisions: they are BCLRB No. B163/2000 and B10/2002.
Good grief, I'm outta here.



Firstly, I haven't seen the arbitration decisions.

Labatts appealed the arbitrator's decisions to the British Columbia Labour Relations Board? (BCLRB) Why would Labatt appeal the arbitrator's decision to the labour board. Labour Boards don't have
jurisdiction over the decisions of arbitrators.
If Labatt's doesn't agree with the arbitrator's decision it has to file for judicial review with the
courts. Perhaps Labatt, you can find a friend that
has a scanner and they can scan the arbitrator's
decisions and we then can take a look at the
arbitrator's decisons on your case.

  • posted by reuther
  • Sun, Oct 24, 2004 10:55am

I will try to clarify for all what legal obligations the parties to the collective agreement have in this case, as it seems that we are spinning our wheels on this subject.

While I don't proclaim to be an expert, I have done an extensive amount of research on the liability of disability claims when I was a Union official at a company who was hell bound in "reducing costs".

While I don't have copy of the Labatt Collective Agreement I am confident in assuming from the arbitrators award (from LB's postings) that he had found the Labatt was liable for the negotiated disabilty benefits.

Sheila this is not ground breaking.

If the parties negotiate a disability program into the collective agreement then the employer is liable to conform to the provisions. It does not matter what the insurance company says or does. The plan must meet the definitions set out in the collective agreement. If it does not, then the employer who purchased the plan is liable, because it did not meet the negotiated benefit within the collective agreement.

"Brown and Beatty" has described the test whether or not a benefit dispute is arbitratible:

1. Where the collective agreement does not mention the benefit in question (although the employer provides it) no grievance seeking payment of the benefit is arbitrable.

2. Where the collective agreement simply obliges the employer to pay the premiums associated with the benefit plans, a worker/union cannot challenge at arbitration an insurance company's denial of benefits. A law suit in the civil courts has been, in default, the means by a worker's claim has been litigated

3. Where the benefit plan is fully incorporated into the collective agreement, it is open to the worker/union to challenge any part of the plan and its administration, and seek recovery directly from the employer, through the grievance/arbitration procedure.

4. Where the collective agreement specifies just the benefits to be paid to workers, but makes no reference to the insurance plan itself, arbitrators have generally found that such payments must be made by the employer regardless of any inconsistencies or exclusions discovered in the insurance plan taken out by the employer.

The Arbitrator must have found that Labatt's collective agreement disability provisions fit into either category 3 or 4.

Sheila, please stop confusing other provinces legislation with Ontario's.

quote:


Labatts appealed the arbitrator's decisions to the British Columbia Labour Relations Board? (BCLRB) Why would Labatt appeal the arbitrator's decision to the labour board. Labour Boards don't have
jurisdiction over the decisions of arbitrators.
If Labatt's doesn't agree with the arbitrator's decision it has to file for judicial review with the
courts.


In B.C. a party to a collective agreement may appeal an arbitrators decision pursuant to section 99 of the labour code.

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.

(2) An application to the board under subsection (1) must be made in accordance with the regulations.

Reuther

  • posted by sheila
  • Sun, Oct 24, 2004 1:23pm

Reuther- I am guilty as charged for confusing other
provinces labour legislations with Ontario. I'll
try not to do that, but I am sure l'll have to be
reminded on a occasion. Everyone feel free to remind me of my lapses.

I could be absolutely wrong, but I won't be convinced until I've reviewed the decisions
of the arbitrator in Labatt's case. I am sorry if I
am peeving everyone off, its not intentional.

BC LABOUR CODE

Reference to Labour Relations Board

98 An arbitration board may, at any stage of an arbitration, refer to the board for a binding opinion and decision a question of labour relations policy or interpretation of this Code arising in the course of the arbitration.

Appeal jurisdiction of Labour Relations Board

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.

(2) An application to the board under subsection (1) must be made in accordance with the regulations.

Appeal jurisdiction of Court of Appeal

100 On application by a party affected by a decision or award of an arbitration board, the Court of Appeal may review the decision or award if the basis of the decision or award is a matter or issue of the general law not included in section 99 (1).

Decision final

101 Except as provided in this Part, the decision or award of an arbitration board under this Code is final and conclusive and is not open to question or review in a court on any grounds whatsoever, and proceedings by or before an arbitration board must not be restrained by injunction, prohibition or other process or proceeding in a court and are not removable by certiorari or otherwise into a court.

Enforcement

102 (1) If a party or a person has failed or neglected to comply with the decision of an arbitration board, a party or person affected by the decision may, after the expiration of 14 days from the date of the release of the decision or the date provided in the decision for compliance, whichever is later, file in the Supreme Court registry a copy of the decision in the prescribed form.

(2) A decision filed under subsection (1) must be entered as if it were a decision of the court, and on being entered is deemed, for all purposes except an appeal from it, to be an order of the Supreme Court and enforceable as an order of the court.

  • posted by Labatt Buster
  • Tue, Oct 26, 2004 5:08am

posted by Saturday Night Live's Miss Emily Littella:

quote:


Oh...well that's different. Never mind....


  • posted by Labatt Buster
  • Tue, Oct 26, 2004 5:13am

posted by Reuther:

quote:


3. Where the benefit plan is fully incorporated into the collective agreement, it is open to the worker/union to challenge any part of the plan and its administration, and seek recovery directly from the employer, through the grievance/arbitration procedure.


Thank you, Reuther. I mean thank you, thank you, thank you!
I don't mean to come across as a pill, but this thread is mine and is mainly concerned with my personal ordeal.
It was never meant for arguements or lengthy discussions ad nauseum over labour law, insurance law or, for that matter WCB considerations.
I suggest anyone with something important to say about these subjects ought to find another thread or start their own -as opposed to distracting those members of this forum with a genuine interest in the subject of Labatt's termination of a disabled worker (i.e. me) with a lot of gobbledygook and chit-chat that has little if any relevance to the subject at hand.
Remember, that questions and discussions peripheral to the main topic can always take place using the private message function that this web-forum provides, allowing the thread to proceed uncluttered and unencumbered by insignificant material.
Thanks for caring.

  • posted by blasdell
  • Tue, Oct 26, 2004 8:37am

Labbatt are you familiar with the Switzer OLRB ruling?

It is quite detailed and deals with a 10 year old DFR and found the Union liable for not being proactive in representing a disabled contributer.

  • posted by Jette
  • Tue, Oct 26, 2004 8:56am

Labatt buster:
I know exactly how you feel. We share basically the same story. I was fired from my job of 31 years while recovering from surgery for a work injury. I've gambled everything I had on trying to get justice, but to no avail. CAW coluded with the employer (3M) to succeed in kicking me to the curb like a bag of garbage. CAW refused to arbitrate my termination and protected 3M. Pretty sad.. when 30 plus years of union dues buys injured workers injustice.

Presently I am having to survive on a mere $493.00 (WSIB pension) a month, after a lifetime of work.

I wonder how many of us there actually is out here?
SHAME ON THE UNIONS......

  • posted by Labatt Buster
  • Tue, Oct 26, 2004 10:56pm

posted by bb:

quote:


Labbatt are you familiar with the Switzer OLRB ruling?
It is quite detailed and deals with a 10 year old DFR and found the Union liable for not being proactive in representing a disabled contributer.


No, I'm not familiar with the Switzer case at all. I would be most interested to have a look at it, though.
Could you post a link for it, or alternatively send me a detailed synopsis via the private message function?
You've piqued my interest, bb.
No-o-o-body piques my interest and gets away with it!

© 2017 Members for Democracy