June 15, 2009

Labour Relations

British Columbia Supreme Court finds Labour Relations Board decisions biased

RICHARD GILBERT

staff writer

The BC Supreme Court has overturned a BC Labour Relations Board (LRB) decision because of bias.

The controversial case involved temporary foreign workers employed in the construction of the Canada Line.

In 2006, the Construction and Specialized Workers’ Union Local 1611 launched a series of unfair labour practices complaints against Canada Line employers, SELI Canada and SNC-Lavalin Constructors Pacific.

The union alleged the employer was discouraging workers from being members of the union and frustrating the collective bargaining process.

In the original decision, the vice-chair of the LRB, Philip Topalian, declined the union’s application for an interim order, which would prohibit the employer’s anti-union activities.

“In conclusion, having found actual bias, I order the decision of the board, which includes the decision of the original panel and the reconsideration panel, quashed,” said Justice Paul Walker in his decision late last month.

“It is vital for labour relations in this province that the board’s processes be viewed as impartial and procedurally fair.”

Justice Walker concluded that an informed and reasonable observer could understand that there was a bent towards one side or a particular result on the part of the vice chair towards the union’s evidence about the fraud.

In its initial complaint, the union alleged the employer had contravened the Labour Relations Code, when it attempted to transfer foreign workers from the Canada Line project in Vancouver to Brazil.

The union said the employer’s efforts were intended to discourage its employees from becoming or continuing to be members in a trade union.

It was also alleged the employer violated the Labour Relations Code by increasing the wages of its employees in the four month freeze period following certification. The purpose of the freeze is to avoid any influence on the bargaining process.

“LRB vice-chair Philip Topalian has been found by the BC Supreme Court to have exhibited actual bias against the union in this case and in favour of the employer, contrary to all requirements of fairness that the court expects should be shown,” said the union’s business manager Mark Olsen.

“This is a serious matter and our union does not take this step lightly, but Justice Walker’s decision is highly critical of Mr. Topalian’s conduct in a very important case that could have far-reaching impacts on B.C. labour relations law.”

The case involved about 40 temporary foreign workers, who were earning only $4 per hour or US$1,000 per month, plus room and board for a minimum of 60 hours per week, until their situation was made public by the union.

The union inspected the employment contracts at SELI’s office and again during the original panel, alleging the employer conspired to commit a fraud.

According to the union, the employer falsified employment contracts to conceal its violations and acted fraudulently by creating documents to show the workers were required to work in Brazil.

“In my view, the nature and history of the dispute between the union and SELI require a fresh hearing of the issues without the involvement of any prior board members so that justice may be seen to be done by both the union and SELI in what has been a bitter and protracted dispute,” he said.

Given this decision, the union believes Topalian should be dismissed from the board because no union can have confidence that he will be fair and unbiased.

Olsen said the Labourers’ union was able to take the matter to B.C. Supreme Court because it spent thousands of dollars to hire a court reporter to produce transcripts for the 22 day hearing.

“Without the full resources of the union being used to defend these foreign workers, the LRB decision would have stood – a decision that Justice Walker has rightfully overturned,” he said

The BC Court ruling means the union must start their unfair labour practices complaints all over again, long after the workers involved have returned home and the work is completed.

Justice Walker ordered the next hearing to exclude anyone at the LRB previously involved in the case.

The union is calling for an independent review of LRB procedures because the Supreme Court quashed both Topalian’s original decision and that of an LRB reconsideration panel that included LRB Brent Mullin.

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