IN THE MATTER OF THE LABOUR RELATIONS CODE OF BRITISH COLUMBIA [RSBC 1996] c.244

AND

IN THE MATTER OF AN ARBITRATION

BETWEEN:

CONSTRUCTION LABOUR RELATIONS ASSOCIATION OF BRITISH COLUMBIA

(“CLRA”)

AND:

INTERNATIONAL UNION OF BRICKLAYERS AND ALLIED CRAFTWORKERS (IUBAC) LOCAL #2 BC

(the “Union”)

Wage Reopener

Section 86 – LRB Case No. 73004/19R

ARBITRATOR:                                                                                                                               Dalton L. Larson

COUNSEL FOR THE EMPLOYER:                                                                                                  Ingrid Otto

COUNSEL FOR THE UNION:                                                                                                         Derrill Thompson

CASE CONFERENCE:                                                                                                                    June 25, 2019

PLACE OF HEARINGS:                                                                                                                  Written Submissions

DATES OF SUBMISSIONS:                                                                                                           July 12, 2019

July 17, 2019

July 25, 2019

DATE OF AWARD:                                                                                                                        August 20, 2019

PRELIMINARY AWARD

1.            Background

• This was a motion by CLRA to dismiss an application by the Union under the May 01, 2016 to April 30, 2019 collective agreement for a wage opener in circumstances where a new collective agreement had been concluded between the Parties. The previous agreement had provided consistent increases in the hourly rates on Schedule A1 Journeyperson classification rates of $0.86/ hour in each of the first three years with a wage reopener effective April 1, 2019. All other classifications were also recalculated consistently with the percentage increases given to the Journeyperson classification.
• It will be most convenient if I quote the reopener provision at this point because I will have many occasions to refer to it subsequently in the course of making this award. The provision reads as follows:

3.104     Wage Re-Opener

The wage re-opener referenced within Article 3.103(c) shall proceed as follows:

• The Parties shall meet no less than four (4) months prior to the effective date of the wage re-opener. However, if the Parties are unable to mutually agree on the outcome of the wage re-opener the matter shall be referred to binding interest arbitration.

• The Parties agree that Mr. Vince Ready shall be the interest Arbitrator. However, in the event that Mr. Ready has retired or is not healthy enough to perform the duties of the interest Arbitrator, the Parties agree that Mr. Stan Lanyon shall be the interest Arbitrator.

• Notwithstanding any contrary interpretation of the foregoing, the interest Arbitrator shall not have the right to reduce the monetary package of the Union.

• The outcome of the wage re-opener shall be determined sufficiently prior to the effective date of the wage re-opener so as to allow Employers to adjust payrolls in a timely manner.
• Article 3.103(c) prescribes an effective date for the reopener of April 01, 2019. As I noted above, the agreement containing the reopener had a term from May 1, 2016 to April 30, 2019. One may speculate about the reason why the Parties negotiated such a tight timeline between the reopener and the expiry of the agreement although it most certainly related to sequencing the reopener with a new collective agreement. The negotiations for the reopener were required to commence no later than 4 months prior to the effective date, which means December 1, 2018 while negotiations for a new collective agreement were required to start between 4 months prior to and no later than 2 months immediately preceding the end of the term.
• On the evidence, the Union served a notice on CLRA to commence negotiations for the wage reopener well before December 1. Geoff Higginson, the President of the Union, sent an email to Greg Sewell, Vice President of Labour Relations, at CLRA on August 3, 2018 saying that the Union was prepared to meet as soon as possible for that purpose. Mr. Sewell replied obligingly on the same day observing that the effective date of the reopener was April 1, 2019 which meant that the Parties would have to meet no later than December
• With this in mind, he acknowledged the notice and agreed to a meeting with the Union prior to the prescribed date “for the purpose of undertaking discussions relative to the wage reopeners.”

• Over the course of the following months, the Parties exchanged correspondence on several occasions with a view to starting the negotiations on the wage reopener but it did not happen. Moreover, as the negotiations for a new collective agreement became more imminent, the inevitable happened. CLRA suggested that it would be best if the reopener could be dealt with as part of the upcoming collective agreement negotiations. It is unclear on the evidence available to me whether the new position being taken by CLRA was influenced by a change in negotiators, but I doubt it. Chris Mydske, Director, Labour Relations, took over the responsibility for the negotiations from Greg Sewell. On October 24, he confirmed that CLRA would prefer to address the wage opener during trade level negotiations. In an email to Mr. Higginson, he asserted that it was not logical to have discussions about a wage opener outside of bargaining when the two issues clearly impact one another and expressed his hope that the Union would agree to handling the issue in that fashion.
• In point of fact, the Parties did meet to discuss the wage reopener shortly after the deadline set in Article 3.104(a), on December 3, 2018 and again on December 21. On the evidence, certainly in the latter meeting the discussions were of a substantive nature relating, as they did, to an offer that had been made earlier by CLRA which Mr. Higginson described as “ridiculous”. The position taken by Mr. Mydske was that they would not be offering an increase for 2019 but would consider taking monies from certain other available benefits and putting it on wages. In any event, he expressed the view that the Bricklayers were already doing well relative to the other trades. Mr. Higginson replied that he felt that they were underpaid and that they were prepared to take their chance with arbitration. At that point the discussion moved to the issue which is the subject of this case as follows:

CM:        I have my mandate. Not personal. Why are we doing a wage reopener? We are going into bargaining.

GH:        Our guys are pissed with how far they have fallen behind in wages. CM:  Agree to disagree on wage opener. Probs have to pay Vince a visit.

There was then some discussion about language in the agreement with the meeting breaking off with Mr. Mydske saying, “Leave it to me”.

• The context of the reopener discussions was that negotiations for a new collective agreement had already commenced and were well under way. A Bargaining Protocol was signed on April 27, 2018 with the main table subjects being agreed on July 3 and the threshold decision being made on August 29. Actual bargaining commenced on September 10, 2018 with meeting no. 4 occurring on December 4. It is not surprising under the circumstances that the primary effort of the Parties was largely directed to that purpose and not to the reopener.

2.                Collective Agreement Negotiations in the Construction Industry

• It is common ground between the Parties that their bargaining relationship is mature. It goes back to 1978 where after an extensive inquiry, the Labour Relations Board determined that the construction industry would be best served by adopting a multi-trade format of collective bargaining for building trade employers and unions engaged in institutional, commercial and industrial construction. One might properly observe that such organizations are anomalous because they constitute an exception to the normal relationship between a single employer and a trade union which represents a single group of employees. Where several unions and employers are aggregated into representative organizations the members are not the employees but rather are other organizations. In the case of a council of trade unions, the members are other trade unions while

the members of an employer’s organization are the companies that employ the employees. This has the effect of creating unique issues that are not involved in a typical relationship arising out of the conflicting interests of the member organizations. A council of trade unions will invariably experience jurisdictional issues between the constituent members and the members of an employer’s organization may be actual competitors or have dramatically different business interests or circumstances.

• This is graphically illustrated in the relatively recent decision of the Labour Relations Board: Re Construction Labour Relations Assn. of British Columbia [2015] BCLRBD No. 109; BCLRB No. B34/2015 (“CLRA B34/2015”). The problem that was central to that case stemmed from a practice to negotiate issues that  were of general application to all the unions separately from local issues that were primarily of concern to the separate unions. The more general issues are called main table issues while the local issues are treated as trade level issues. No ratification vote was taken even where the main table issues were settled in order to permit the trades to conclude their individual agreements. What happened then was that a practice developed where some individual unions deliberately used the situation as a tactic to coerce improved wages and benefits beyond what had already been agreed at the main table level.
• In fact, what the Board held is that the essential purpose of certifying a council of trade unions under Section 41 of the Code was to address such a problem. It acknowledged that once certified, while the individual unions might be accorded a right to negotiate their trade agreements, it is subject to the ultimate authority of the Council as the exclusive bargaining agent to manage the negotiations to ensure that they are done in good faith. It held that it was the duty of the Council to ensure that mischief of that nature did not occur
• Interestingly, the Board recognized that the mere fact that the trade issues are negotiated separately could be as much of a problem for the unions as for the employers because once an agreement is reached on the main table issues, they often found themselves unable to generate sufficient pressure to resolve any outstanding trade level issues.
• In the end, the Board held that the solution to the problem could best be addressed by an effective Industry Bargaining Protocol. At paragraph 32 of the decision Ken Saunders in his capacity as Vice Chair held that the protocol would have to include a mechanism to compel a timely conclusion of coordinated trade table negotiations consistently with Section 41 objectives. Subsection (5) of that provision says that as part of the process of the certification of councils of trade unions, the Board may make orders and issue directions it considers necessary or advisable respecting the formation of councils and the fair representation of the trade unions comprising the council.
• In the result Mr. Saunders ordered that the Parties negotiate a protocol to govern each future round of bargaining sufficient to meet their duty to bargain in good faith. At para. 42 he stated that at a minimum such a protocol would have to contain the following elements:
  • timelines for beginning, continuing and concluding bargaining, including a mechanism for the timely conclusion of unresolved trade level agreements;
  • a joint mediation/facilitation process to move bargaining toward resolution;
  • a procedure governing agreements between CLR and individual trades to implement terms of trade-level agreements before an overall memorandum of settlement is concluded;
  • the identification of main table industry issues and trade table issues; and
  • an expedited procedure to conclusively resolve disputes under the protocol.

• CLRA now takes the position that to give effect to the wage reopener would be inconsistent with the essential purpose of establishing the existing bargaining structure. Counsel argues that the Union should not be permitted to take advantage of the reopener to improve the wages and working conditions of its individual members under a previous collective agreement where a new agreement has already been put into effect. More specifically, she took the position that the Union’s application should be dismissed for the following reasons:
• The Union’s application is moot. The CLRA and the Bargaining Council of B.C. Building Trade Unions on behalf of its constituent unions, including the Bricklayers have already concluded a collective agreement which includes wages. There is no live issue to be determined. A new collective agreement supersedes the former collective agreement under which the Union’s application was brought;

• In the alternative, proceeding with this case would constitute an abuse of process. The Parties agreed to a process to conclude a collective agreement which included wage determinations. Wages for 201 9 have been confirmed by the Labour Relations Board and the Union should not be permitted to bring this application to seek out a new decision-maker to revisit the same issue already determined by the Board; and

• In the further alternative, the referral of the wage re-opener to arbitration is out of time.

3.                Industry Bargaining Protocol

• Following the mandate prescribed by the Board, the first step undertaken by the Parties in this case to negotiate a new collective agreement was to agree on a protocol by which the negotiations would be done. The evidence does not establish how long it took but the agreement was signed on April 27, 2018 which was several months before bargaining began on September 10. The prescribed objective was to reach an Overall Memorandum of Settlement by April 30, 2019 which was the last day of the term of the collective agreement then in effect. They agreed that they would commence, continue and conclude bargaining based upon the specified framework.
• It set out a procedure for determining the list of subjects that would be bargained at the main table. This involved an exchange of proposed subjects which would then be negotiated, with any disputes to be decided by the Labour Relations Board. It provided that any subjects not bargained at the main table could be bargained at the trade level.
• Notice to bargain was deemed by the protocol to have been served on July 27, 2018. It established the specified commencement date and that negotiations should conclude no later than January 31, 2019. A dispute resolution process was implemented by which any substantive issues might be settled if they were not successfully negotiated. This included selecting a mediator and five possible arbitrators who could conduct an interest arbitration for full and final settlement of both main table issues or trade level agreements. Finally, it provided that the Labour Relations Board would remain seized with disputes relating to the interpretation or application of the Protocol.
• Except for timing, the Protocol appears to have been successful. There were 19 official negotiation meetings, four of which occurred in 2018. The last meeting was on May 28, 2019. As is normally the case, not all of the issues were settled without controversy. Some issues required the intervention of the Board. For example, the Parties met with the Chair of the Board on January 21 regarding the bargaining process and

whether particular subjects were properly main table issues. The Chair established a process of trade level meetings during the first two weeks of February to try to move the process forward.

• One particularly sticky issue was that CLRA demanded that a most favoured nations clause be removed from all the agreements that included it. It even became a subject of a mediation. During the month of March the parties held trade level bargaining for each of the 49 TLMOAs. During this process 39 TLMOAs were signed which resulted in 9 of the 15 Unions being completed. On April 16 a hearing was held at the Labour Relations Board. The Chair issued an order the next day requiring more trade level discussions and a return to main table negotiations on May 6.
• All of the negotiations from that point on were conducted with a mediator. On May 28 the parties exchanged proposals, but no resolution was reached. Accordingly, the mediator asked that their best and final offers be provided to him by the close of business the next day. On May 31 a hearing was held at the Labour Relations Board where the mediator, David Schaub, presented his written recommendations for settlement. Without getting into the substantive issues, he concluded his report by saying that in his view the parties had two options if they did not accept his recommendations:
• they could submit their best and final offer for settlement to an arbitrator who would make a decision based on Final Offer Selection; or

• the Chair of the Labour Relations Board could order his recommendations into effect as amendments to the 2016-2019 collective agreement and thus conclude collective bargaining.
• The Parties accepted the second option. The Chair of the Board made the order with the result that a new collective agreement was adopted at that point. The term of the new agreement extended from the expiry of the previous agreement effective from May 1, 2019 for four years expiring on April 30, 2023.
• The mediator’s recommendations included a monetary package that was not retroactive to the effective date of the agreement. He proposed that any wage increases should be effective two weeks following ratification and thereafter on May 1 in each of 2020, 2021, and 2022 allocated to the various grouping of trades. Pages 8 – 9 of his report structures the various trades into five groups with each group being allocated a different wage increase. The Brick Industrial were allocated to Group #2 and Bricklayer CI, Terrazzo, and Tilesetters were allocated to Group #4.
• It is of critical importance to the issue relating to the viability of the wage reopener that the mediator specified the following condition on the implementation of the new wage schedule:

The following terms shall apply to each Agreement within each group above. Each trade shall receive an increase to their monetary package for their Journeyperson (or equivalent) classification and all other indexes should remain. For any trade that received an increase in April 2019 that increase shall be deducted from the increases outlined as follows (Emphasis added).

• On June 3, 2019 the Labour Relations Board issued a written order confirming the oral decision of the Chair on May 31 that the recommendations be adopted and put into effect. Accordingly, she ordered that collective bargaining under the 2019 Bargaining Protocol was concluded and that the constituent member trade unions of the Council must immediately advise signatory contractors of their decision on the allocation of monetary increases in order to avoid delays in implementation.
• Based on those facts, I shall deal with each of the issues raised by Counsel for CLRA but in the inverse order that they were raised.

4.                Is the Issue Out of Time?

• The allegation that the matter is out of time is premised on a requirement in Article 3.104(d) of the previous collective agreement that the outcome of the wage reopener should be determined sufficiently prior to the effective date so as to allow Employers to adjust their payrolls in a timely manner. The effective date of the reopener is expressly stated in Article 3.103(c) to be April 1, 2019.
• In point of fact, there are two time limits, of sorts, in the reopener. The first is found in subparagraph (a) which purports to require that the Parties meet no less than 4 months prior to the effective date of the reopener and the second one, which is contained in subparagraph (d) requires that the matter be determined prior to the effective date.
• The first time limit is not the subject of this motion. It requires the cooperation of both Parties either of whom could frustrate compliance. Accordingly, it is not compellable and, in any event it was effectively met. The Parties communicated with each other several times, as early as August 3, 2018 and agreed that they were under an obligation to meet prior to December 1. Mr. Mydske and Mr. Higginson met in person on December 3 to discuss the wage reopener. A couple of weeks later the meetings were expanded. On December 21, Mr. Mydske and Sascha Swartz from CLRA met with Mr. Higginson and Sharon Edwards of the Bricklayers at which time they engaged in substantive negotiations about the matter which I will discuss in more detail later in this award. It is true that in neither case did the Parties come to an agreement on the outcome of the reopener but that is primarily because CLRA took the position from an early date that no purpose would be served by separate negotiations. Mr. Mydske took the view that the reopener should be dealt with as part of the negotiations for a new collective agreement and not in a separate discrete process.
• One may properly note that by that time the negotiations for a new collective agreement were well under way. By the end of February they had already had 10 meetings. In fact, on February 28 the Parties met at the Labour Relations Board with the mediator who suggested a trade level process to try and conclude all trade bargaining and to develop some momentum to get the main table discussions moving forward. As I observed above, the Parties held trade level negotiations during much of the month and succeeded in signing off 39 MOAs, the point being that the individual trades were the primary focus of the negotiations at that time.
• Contemporaneously with the negotiations, Geoff Higginson wrote to Mr. Mydske on four separate occasions to persuade him to agree to activate the reopener, with the first being on March 1. However, on each occasion, he was rebuffed by Mr. Mydske who continued to take the same position as he had done in December, that it was something that more appropriately should be dealt with in the negotiations. In fact, on March 20 when the dispute was coming to a head Mr. Higginson even made a proposal to Mr. Mydske on the amount of wage increase he was looking for under the reopener. More precisely, he advised CLRA that the Union was proposing an increase of $4/hour to the straight time hourly journeyperson commercial institutional rates for the lower mainland and $3 outside the lower mainland effective April 1, 2019. Mr. Mydske immediately replied by saying that CLRA was not interested in offering any increases and effectively invited him to refer the matter to arbitration, saying that there was a process available to resolve it if he wasn’t happy with CLRA’s position.
• The very next day the invitation was taken up by Counsel for the Union to refer the matter to arbitration. I do not intend to review the evidence on the efforts that were then made to find an arbitrator who was available to hold hearings on the reopener prior to the effective date, which by then was mere days away. The only point to be made is that at no time in that process did CLRA take the position the matter was

not arbitrable until these hearings. On that basis alone, I would be prepared to hold that if any of the time limits set out in Article 3.104 of the 2016-2019 collective agreement might be construed as legally binding, they were waived by CLRA.

• Even if the requirement in Article 3.104(d) to determine the wage reopener before the effective date is a time limit, I find that compliance with it is intended to be directory and not mandatory. The language of  that provision does not purport to prescribe a consequence of a failure to comply with the time limit on the principles discussed by Arbitrator Hope in Re Board of School Trustees of School District No. 39 (Vancouver) and Vancouver Teachers Federation [1995] 48 LAC (4^th) 108. In Re Coast Mountain Bus Co. and Canadian Auto Workers Local 111 [2004] 129 LAC (4^th) 333 Arbitrator Chertkow preferred a broader test, whether the time limit is sufficiently forceful that one could conclude that it was intended to be mandatory.
• Neither of the time limits in the reopener meets those tests. While subparagraph (a) prescribes a specific amount of time for the parties to meet, it is clearly intended more as a goal to initiate negotiations rather than a narrow limitation that if not met would preclude any further access to the reopener. Moreover, the requirement to refer it to arbitration does not prescribe an additional time limit after the point at which the Parties are unable to agree on the outcome of the wage opener. There is no consequence prescribed for  a breach of the time limit.
• The limit in subparagraph (d) is even less forceful. No evidence was submitted on how much time might reasonably be required to allow employers to adjust their payrolls but more importantly, it could not be seen to be a matter of great consequence upon default because wage increases can invariably be adjusted retroactively. While the word “shall” might be taken to indicate a degree of compellability, the language of the clause generally is passive and does not indicate an intention to make it mandatory.
• Where there are no mandatory time limits, a question of delay is a matter within the discretion of the arbitrator to decide in all the circumstances taking into account any explanation for the delay and whether the other party has been prejudiced by the delay. In every such case evidence is required to establish that the delay was unreasonable: Re Emergency Health Services Commission and Canadian Union of Public Employees, Local 873 [1996] 61 LAC (4^th) 15 (Black).
• In any event, in the circumstances I would exercise my jurisdiction under Section 89(d) of the Labour Code to relieve against the breaches of the time limits set out in the collective agreement because the failure of the parties to meet to negotiate the reopener was due entirely to the position of principle taken by CLRA. I accept that It did not refuse to meet but rather proposed to deal with it in the negotiations. It is true that the time limit in Article 3.104(d) goes beyond regulating the negotiations between the Parties and extends to a requirement to “determine” the wage reopener, which would include arbitration. In this case, however, although CLRA made its position known to the Union that it wanted to deal with it in the negotiations it was expressed only as a preference and did then not make a proposal to that effect in the negotiations. On March 20 the Union made a proposal for a specified increase to which Mr. Mydske replied in no uncertain terms that they were not interested in offering any increases under the wage reopener. When the Union continued to press CLRA to meet he stated simply that he didn’t think there was any reason to discuss things and that there was a process in the agreement to resolve the issue if it was not happy with their position. Until then both Parties must be seen to bear responsibility for the amount of time spent in negotiations. At that point Mr. Mydske must be taken to have declared an impasse, essentially rejecting any further responsibility for negotiating the reopener. It was then entirely the responsibility of the Union to secure a determination of  the reopener through the only other means available which was to refer it to arbitration which is what Mr. Thompson did the very next day. In no sense, could that be seen to be undue delay.

• Taking all of the above into account, I find that the reference to arbitration is not out of time. Nor do I consider it appropriate to adjourn the proceedings sine die as Counsel suggested I should do, as I did in Comox Valley School District No. 71 and Comox District Teachers’ Association (Kaljur Grievance) [2009] BCCAAA No. 88.
• In the Comox Valley School Case the employee, a teacher, had grieved that the employer violated her professional autonomy and the collective agreement by requiring parental consent prior to students obtaining counseling. In the course of referring the matter to arbitration, the employer advised me that it had rescinded the discipline that had been taken against the teacher and was in the process of amending the Student Services Department Operations Manual to reflect a balanced approach concerning the issue of parental consent which would take into account factors such as the Board’s duties and responsibilities, the services provided by the counselors, the age and maturity of the students and the best interests of the students. I considered that if the manual were to prescribe an appropriate test for when counselors could properly provide services to students without parental consent that was acceptable to both parties, the matter would be rendered moot and would not require a decision from me.
• It is not clear to me how referring the matter back to the Parties would work under the circumstances where a new collective agreement has already been concluded. There is no mechanism under that agreement for dealing with the issue. Consequently, I refuse to adjourn the proceedings on that ground.

5.                Abuse of Process

• CLRA submits that it would be an abuse of process to allow this matter to proceed to interest arbitration. Counsel argues that the Parties agreed to a process to conclude a new collective agreement, which included a wage determination for 2019 and that it would be unfair to be subjected to a different process that could potentially undo it.
• The principle was exhaustively elaborated by the Supreme Court of Canada in Toronto (City) v. Canadian Union of Public Employees (CUPE) Local 79 [2003] SCJ No. 64 where a recreation instructor was dismissed after being convicted of sexual assault. The matter was upheld on appeal and when it was referred to arbitration the arbitrator held that the dismissal was without cause. The issue was then reviewed by the courts as to whether the union was entitled to relitigate an issue that had been decided against the employee in criminal proceedings.
• In that instance, the decision of the arbitrator was overturned because, as the Court held, it tended to bring the justice system into disrepute. Arbour J. adopted the explanation of Doherty J.A. in the Court of Appeal that a reasonable observer would not be able to understand how on the one hand the grievor could be found by a court to have been properly convicted of sexually assaulting the complainant and be deserving of 15 months in jail and on the other hand subsequently be found in a separate proceeding by an arbitrator not to have committed the sexual assault and to be deserving of reinstatement in a job which would place young persons like the complainant under his charge.
• Ms. Otto also refers to a more recent decision in this Province where the principle was adopted by Arbitrator Hall. In Her Majesty the Queen in Right of the Province of British Columbia as Represented by Ministry of Child and Family Development and British Columbia Government and Service Employees Union (Preliminary Ruling on Abuse of Process), unreported June 6, 2017 the grievor had been suspended, and then terminated partly based on an allegation that he had been involved in an altercation with a particular individual in a parking lot. The altercation led the grievor to initiate a civil lawsuit in the Small Claims court against the individual. The question then arose whether the judgment could be admitted into evidence at

arbitration to establish the facts to justify the discipline. Following the City of Toronto case, the arbitrator refused to admit it into evidence on the basis that it would be an abuse of process to relitigate the incident in circumstances where he would effectively be acting as a court of appeal in the matter.

• Applying the principle in this case, Counsel for CLRA takes two positions in the matter. Firstly, she says that the Bricklayers are attempting to reopen the issue of wages for 2019 notwithstanding that it has been conclusively settled by its statutory bargaining representative, the Bargaining Council of British Columbia Building Trade Unions in the negotiations for a new collective agreement. In effect, she says that a decision under the reopener would overlap the new agreement and would not be saved by the condition adopted by the Parties that calls for the deduction of any pre-existent increases from the increases granted in the new agreement. Secondly, she argues that the new collective agreement precludes any further consideration of the reopener because when the Parties agreed to a new wage schedule for 2019, it had the effect of extinguishing the reopener.
• On the first point a whole answer lies in the acceptance of it. If the result of the reopener were to undo the new collective agreement it would invalidate the reopener because I have no jurisdiction to alter or change it. However, whether it has that effect is really a problem for consideration in the arbitration. We do not need to consider it in these proceedings because it is conceded by the Union that the new agreement is not subject to change through the reopener. Nor is it disputed that I do not have any jurisdiction under that agreement.
• I agree with Counsel that it is an established principle of law that an arbitration board has no jurisdiction beyond the collective agreement under which the board is constituted. That principle was adopted in the leading case of Goodyear Canada Inc. and URW Local 232 [1980] 28 LAC (2d) 196 (M. Picher) where a number of employees were not paid premium pay under three consecutive collective agreements. The arbitrator held that he had no jurisdiction beyond the agreement under which he had been appointed and that any redress available generally excludes any period before the grievance is brought.
• Counsel for the Union asserts that the Union does not seek to change the results of the bargaining for the 2019 – 2023 collective agreement but rather, as he said, only seeks to put bones on the wage opener that CLRA willingly entered into when they agreed to the 2016 – 2019 collective agreement with the Union. He explained that when the previous agreement was negotiated, the Parties chose not to prescribe a wage increase effective April 1, 2019 at that time but rather to wait to see what market conditions would prevail at the time of the reopener and to leave the rate for that year to be determined by arbitration. On the contrary, he contends that there would be an abuse of process if the Union was denied the opportunity that was freely negotiated to arbitrate the wage reopener. He takes the position that CLRA repeatedly delayed the wage reopener process, which he described as laying in the weeds, never once saying that they better get the reopener out of the way, lest it disappear as a right.
• As for the second point, what CLRA says is that the new collective agreement precludes consideration of the reopener because when the parties agreed to a new wage schedule for 2019 it had the effect of extinguishing the reopener. In other words, Ms. Otto says that the later collective agreement replaced the earlier one that included the reopener which, therefore, can no longer have any force or effect. She does not claim that there was an express agreement to abrogate the reopener. Nor does she deny that the Union refused all attempts by Mr. Mydske to consolidate the wage reopener into the negotiations. In effect, what she says is that the abrogation is an automatic result of reaching a new collective agreement and that it does not require the express agreement of the Union to consolidate the two processes.

• As authority for her proposition Ms. Otto cites the decision of Arbitrator Germaine in British Columbia Nurses’ Union and Canadian Office and Professional Employees Union, Local 378 (Vacation Entitlement Grievance) [2011] BCCAAA No. 78 where several grievances were filed challenging the employer’s calculation of vacation entitlement. The employer argued that the matter had been resolved by an earlier settlement on the same issue. The arbitrator agreed with the employer saying that there was no basis for the union to repudiate the prior settlement and that the union was bound by the resolution.
• This is not really that kind of case. However, there is direct authority for the proposition that she advocates that when a new agreement comes into effect and alters existing terms and conditions of employment, generally speaking the terms of the old agreement are extinguished: Canadian Labour Arbitration: Brown & Beatty (4^th) @ para 4:1610 p. 4-30. In fact, in Ontario Section 55 of the Labour Relations Act 1995 provides:

There shall be only one collective agreement at a time between a trade union or council of trade unions and an employer or employers’ organization with respect to the employees in the bargaining unit defined in the collective agreement.

• Nonetheless, the general rule is the subject of many exceptions. In particular, it has been held that a new collective agreement does not extinguish vested rights: Re Crown Cork & Seal Canada Inc. and Metallurgistesd Unis D’Amerique Local 9222 [1997] 67 LAC (4^th) 429 (Frumkin) where the arbitrator held that a retired employee covered by a pension plan had a vested right that survived the expiry of the collective agreement. It is also an issue that was most recently considered in this Province in British Columbia Public School Employers Association and BCTF (Soleway) [2015] 259 LAC (4^th) 36. In that case, Arbitrator Lanyon similarly acknowledged that when a new agreement comes into effect, the terms of the old agreement are generally extinguished, but he said that it could not be the case where rights are vested or the parties otherwise agree. He held, in that case, that the achievement of a higher educational standing by the grievor was an enforceable vested right but that her claim for 22 years of retroactivity was out of time.
• Accordingly, I find that to engage the interest arbitration under the provisions of Article 3.104 of the 2016-2019 collective agreement would not constitute an abuse of process where a new collective agreement has been concluded unless and until it is clearly demonstrated that it necessarily cannot be implemented without changing the new agreement. The reopener is a vested right that was intended to have force and effect beyond the end of the term of the agreement. Nor was the right abrogated by the wage schedule in the new agreement. The fact is that the reopener was implicitly continued in force and effect by making any increases subject to a set off against the wage schedule in the new agreement, the subject to which I now turn.

6.                Mootness

• The argument under this head is somewhat of a modification of the claims made above except that it postulates that there is no real issue to be decided and that it would effectively be a waste of valuable time and resources to proceed under the circumstances. This concept addresses the most fundamental element in arbitral jurisprudent that there must be a dispute of some nature to be decided. The dispute may be one of fact or one of law in which case the arbitrator is compellable and may not decline jurisdiction. For that principle Ms. Otto refers to the decision of the Supreme Court of Canada in Joseph Borowski v. Attorney General of Canada and Interfaith Coalition on the Rights and Wellbeing of Women and Children, R.E.A.L. Women of Canada and Women’s Legal Education and Action Fund (LEAF)) [1989] 1 SCR 342. Her argument is somewhat different from the above, not that the right to arbitrate has been extinguished by the new

collective agreement but rather that the prior agreement under which the dispute occurred no longer exists and for that reason there is no live issue to be determined.

• In Borowski the appellant challenged the validity of Section 251(4), (5) and (6) of the Criminal Code relating to abortion on the grounds that they contravened the life and security and the equality rights of the foetus as a person, protected by Sections 7 and 15 of the Canadian Charter of Rights and Freedoms. In the course of the legal process, the Ontario Court of Appeal concluded, inter alia, that neither Section 7 nor Section 15 of the Charter applied to a foetus. Shortly, thereafter, however, all of Section 251 was struck down by the Supreme Court of Canada in R. v. Morgentaler (No. 2) [1988] 1 SCR 30.
• As a consequence of Section 251 being struck down, an issue arose whether the dispute had been rendered moot such that the Court should exercise its discretion not to hear it, a proposition which it accepted. It held that the doctrine of mootness is part of a general policy that a court may decline to hear a case which raises merely a hypothetical or abstract question and will not have the effect of resolving some controversy affecting or potentially affecting the rights of the parties.
• The Borowski case did not involve an issue of labour relations but the principle has been applied in this context. In Re LaFarge Canada Inc. and International Brotherhood of Boilermakers Local Lodge Number D385 [2011] 215 LAC (4^th) 132 Arbitrator Somjen was faced with a similar claim where some employees had refused to handle cargo from a limestone quarry when there was a strike in progress. Eventually the strike was  settled and there were no further refusals to handle the limestone. Nevertheless, the employer filed a policy grievance requesting an interpretation of the hot cargo clause under the collective agreement seeking a commitment from the union that its interpretation was correct. However, the union would not agree as a result of which it was referred to arbitration where the union took the position that the grievance was moot because the labour dispute ceased to exist and there was no further refusal to work.
• Arbitrator Somjen held that the approach mandated by the Court involves a two step analysis. First it is necessary to determine whether there is an actual dispute that has disappeared such that the issues have become academic. If there continues to be is an actual dispute of some nature it cannot be moot  by definition and it is not necessary to go to the next step. Second, if the response to the first question is affirmative, it is necessary to decide whether the arbitration board should exercise its discretion to hear the case. Whether the discretion should be exercised then involves the application if three separate criteria:
• whether there is a continuing adversarial context;
• a concern for conserving scarce judicial resources, and
• the need for the board to demonstrate a measure of awareness of its proper function and that making decisions in the absence of a dispute might be viewed as intruding into the role of the legislature.
• The analysis done by the arbitrator is interesting because firstly, he found that even though the matter was academic in the sense that there was not a continuing refusal to work, there was an important continuing adversarial context raised by the policy grievance. Secondly, he held that the concern for judicial economy is less of a factor in labour arbitration because the parties choose and pay for the arbitrator. Finally, he said that while the third criterion applies with equal force in arbitrations, it should be translated to this proposition:

….. the parties create their own collective agreement within certain statutory limitations (for example, the prohibition on strikes and lockouts during the term of the collective agreement).

Arbitrators should be careful not to intrude unnecessarily into the collective bargaining process by interpreting language in an existing collective agreement where there is no live dispute.

• I adopt his analysis on those points, but it is also important that he observed that there is another factor that is unique to labour arbitration that was not considered in Borowski which involves policy grievances. These are intended to permit the parties to refer issues of interpretation to arbitration either expressly or by necessary implication, which in a purely judicial context might be considered to be academic. He agreed with what I said on the issue in the Comox School Case at paragraph 30 that such matters cannot be considered to be moot because it would be adverse to the intention of that parties:

What one must be careful to factor into the equation, however, is that some collective agreements make express provision for policy grievances, which are arguably moot by definition because they typically raise issues of principle or interpretation and do not provide any specific remedy to an individual grievor. Some agreements tend to deal with that problem by restricting policy grievances to those that could not be the subject of an individual grievance. More normally, however, the approach is more inclusive. A policy grievance is regarded as simply one of more general application and does not depend on whether is could be brought by one individual or several. See the discussion of the differences between the two approaches in Canadian Labour Arbitration, Brown & Beatty (4^th ed) @ p.2-91 fn.2. Of course, where the collective agreement expressly contemplates grievances that are of an interpretive nature or whether the remedy may be declarative only or prospective, it  is difficult to see how the doctrine of mootness could be properly applied to preclude arbitrability of the very thing that it is designed to permit.

• Even apart from specific language in a collective agreement authorizing policy grievances, Section 84(2) of the Code requires that every collective agreement must contain language which gives arbitration boards a wide range of jurisdiction that goes well beyond merely determining whether something happened and extends to “its interpretation, application, operation or alleged violation, including a question as to whether a matter is arbitrable.” The jurisdiction to interpret the terms of a collective agreement is at the head of the list. Interpretive issues are accorded equal importance to those involving the application, operation or violation of the agreement. Accordingly, in labour relations terms, the fact that a dispute involves an issue of interpretation may not render it moot under the Borowski prescription, unless the interpretation does not comprise the real substance of the issue in dispute.
• The interest arbitration that is prescribed by the reopener in the 2016 – 2019 collective agreement is similarly a device that is unique to labour relations. It permits an arbitrator to do something that is unheard of in the realm of commercial contracts, which is to actually amend or change the terms of an existing contract. In the context referred to by the Court in Borowski, the parties have effectively given the arbitrator a legislative function that will automatically intrude into the collective bargaining process. Indeed, it goes a step further than the interpretive jurisdiction inherent in a policy grievance which Arbitrator Somjen said should be exercised with great care. In the case of an interest arbitration the intrusion is automatic and necessarily dramatic. However, what is important to understand in the context of this case is that the right to amend only extends to the collective agreement under which the reopener arises.
• CLRA takes the position that there is no dispute that is capable of being litigated under the reopener because it must be taken to have been extinguished under the principle enunciated in UAW Local 112 and De Havilland Aircraft of Canada Ltd. [1950] 2 LAC 465. In that case, the arbitration board held simply that a new collective agreement negotiated by the parties had the effect of extinguishing the terms and conditions of the previous one. As the arbitration board held at paragraph 13, “It is our view, that the whole theory of

collective bargaining demands that the current collective agreement is to contain and represent the whole agreement between the parties

• The problem with that case is that over the years following the decision it became obvious that an exception to the general rule must be recognized in circumstances where it is clear that the parties clearly intend that certain benefits will continue into succeeding agreements, many of which are described in the authorities cited by Ms. Otto. These exceptions have been recognized as part of the natural development of the arbitral jurisprudence relating to such things as retroactivity, vested rights and other benefits that are purposefully intended to have force and effect well after the collective agreements under which they are negotiated expire.
• That is the nature of the reopener. It was not intended to be extinguished under the terms of the new collective agreement. It is true that the Parties expected that the reopener would have been determined by the time that the new successor agreement was put into place. Article 3.104(d) purports to require that the outcome be determined prior to the effective date April 1, 1019 but as I discussed earlier, that cannot be seen to be mandatory. In any event a date is typically prescribed to be effective where the implementation of an agreement is not certain but the parties want it to be applied retroactively in the event of a deviation. The word itself implies that the specified date may not be met. No time limits were specified for the arbitration. The Parties did not agree that it be extinguished. Nor did they agree to consolidate it with negotiations relating to the new wage schedule. On the contrary, it was purposefully extended by the parties by accepting the condition specified by the mediator that any trade receiving an increase under the reopener would be deducted from those prescribed in the new wage schedule.
• What Ms. Otto argues, however, is that even if one accepts that the reopener remains effective, it could not have any practical effect because it would necessarily be subject to the wage schedules negotiated under the new agreement. This would be the logical effect from the fact that the reopener was intended to precede the implementation of the new wage schedules. Therefore, as she argues, any wage adjustments made under the reopener would necessarily have to be deducted from any increases under the new agreement. In addition, she suggests that it would also offend the rationale prescribed by the Court in Borowski that one must be mindful of the importance of preserving scarce judicial resources and the intrusion that reopener would have on the new agreement.
• She postulates that the new agreement was negotiated by the Bargaining Council of the British Columbia Building Trade Unions which is the certified bargaining agent of all the trade unions who are members of the Council, including the Bricklayers. It follows, she says, that the mischief that certification was intended to prevent is precisely what is occurring here, that despite the conclusion of collective bargaining, a member of the Council is seeking to open up bargaining again on the issue of a wage re-opener under a prior agreement that no longer exists and notwithstanding that the wages for 2019 have already been determined.
• While I accept the evidence that there has existed a problem of individual unions impacting main table negotiations through trade level demands, the practice to which Ms. Otto refers is one that related to negotiations for new collective agreements. Because of the number of employers and unions involved in bargaining, these same parties developed a practice of negotiating main table issues, which treats wage schedules, separately from local trade issues. What happened under that format was if an individual union felt that it did not get enough at the main table, it would seek to obtain more through the local bargaining structure. But that is not what happened here. There is no evidence that the Union delayed the reopener in order to get another kick at the can. If the intended sequence of implementation had occurred in this instance, the reopener would have been settled before the conclusion of the new collective agreement. It is

pure happenstance that we are now faced with dealing with the wage reopener after the new wage schedule has been put in place.

• Nevertheless, while I accept that such a new wage schedule has been properly implemented, it does not follow that the reopener has been extinguished and no longer exists. The reopener continues to have force and effect as a vested right under the provisions of the previous agreement. Most certainly, it poses serious problems of integrating it with the new wage schedule under the circumstances except for the fact that the new agreement expressly contemplated the situation, requiring that any increase under the reopener will be deducted from what is provided in the new wage schedule.
• I do not accept that the condition was intended to apply in the past tense even though that is strictly the grammatical sense of the words used by the mediator. A proper interpretation of those words can only be effected in the historical context in which they were used, which was that at the time that the report was written, no trade had received an increase in April 2019. It is inconceivable that the mediator would not have known that the reopener had not been concluded when he wrote those words. It would have made no sense in that context unless one interprets them to apply more generally to any increases that may be obtained under the reopener at any time. In other words, the condition must be interpreted to mean simply that any increase that is determined under the reopener shall be deducted from the increases already prescribed in the wage schedules of the new collective agreement.
• The term of the new agreement is May 1, 2019 to April 30, 2023. However, Article 3.103(c) of the old agreement, purports to require that the reopener will be effective April 1, 2019 meaning that if an increase is determined to be appropriate it arguably might be restricted to the first month and after that date it would have to be deducted from the increases negotiated under the new agreement. Mr. Thompson argued that if the arbitration were to result in increases higher than those negotiated in the collective agreement it is quite possible that over the term of the agreement the increase would be absorbed leaving a positive balance at some point in the term. His position is that the mere possibility that such a thing could happen necessarily means that the issue is not moot.
• He postulates an example, the details of which I do not intend discuss except to say that it would be premature for me to determine how it would work at this point but at the very least it is graphic evidence of an interpretive issue that remains in dispute quite apart from the substantive issue of whether an increase is justified on the basis of the normal standards and criteria applicable to interest arbitration disputes. The position taken by CLRA is that it would be untenable that the Union would be able to obtain a benefit greater than any other constituent union and achieve retroactive wages increases that were not contemplated at the time the renewed collective agreement was concluded. Ms. Otto says it is trite law that an important promise (especially a financial benefit) must be clearly and unequivocally expressed and that a referral under the reopener must be seen to be inconsistent with the actions of the Council to enter into a new agreement which provided for wage increases in the same period.
• The problem with that argument is that CLRA is asserting rights of the Council that it is not advocating for itself. No evidence was made available to me that the Council opposed the efforts of the Union to obtain benefits independently of its other constituent unions. Had it taken that position, it was well within its powers to restrict it. The fact is that the Council was a party to both the reopener and the new collective agreement. Both were intended to have force and effect. Just because the new collective agreement happened to be implemented prior to the reopener cannot obviate its effectiveness as a vested right.

• Nor do I agree with the premise of the argument of CLRA that the Union’s delay should not be rewarded. This particular argument is based on the fact that the Union failed to refer the reopener to arbitration immediately after the meeting on December 21, 2019 when Mr. Mydske confirmed his position that the reopener should be dealt with as part of the negotiations for a new collective agreement. The problem with the argument is that the position that he took was expressed only as a preference. He did not definitively refuse to negotiate under the reopener until he wrote to Mr. Higginson on March 20, 2019 saying that he did not think there was any more reason to discuss it. The very next day after that the Union referred it to arbitration. In any event, the time limit under Article 3.104(a) cannot be interpreted to be mandatory sufficient to preclude arbitration. In point of fact, it can be read to apply only where the Parties are unable to agree on the outcome and that did not occur until March 20. Had they entered into negotiations which then failed, the matter might have been entirely different but that is not what happened. CLRA refused to negotiate the reopener at all, albeit that it was in an attempt to consolidate it with the negotiations for a new collective agreement.
• The Union continued to attempt to negotiate the reopener in a vain hope that CLRA would recant its position. When it finally became clear that it was not going to happen it was referred to arbitration by a mutual consensus reached by the Parties. On March 20, 2019 Mr. Mydske wrote a short note to Mr. Higginson saying as follows:

Geoff. I know you do not agree with our position. However, at this point I don’t think there is any more reason to discuss things. We told you our reasons and it was certainly not “just because” as you put it below. Regardless, there is a process in the collective agreement to resolve the issue if you are not happy with our position. Thanks.

• Two days later, on March 22 Mr. Thompson wrote to Mr. Ready reciting subparagraph (b) of Article 3.104, saying that the Parties had been unable to mutually agree on an outcome to the wage reopener and asking him to schedule an arbitration in the matter. It is difficult to understand how that could be seen to be an undue delay in the circumstances at that time and in any event both Parties bear responsibility for it. No time limits are specified in the reopener for when a dispute about it must be referred to arbitration. After that, considerable difficulty was had by the Parties in finding an available arbitrator which I will not attempt to review.
• Suffice it to say that following several attempts, an application was made by the Union on May 2, 2019 to the Labour Relations Board for the appointment of an arbitrator under Section 86 of the Labour Relations Code. I was then appointed to determine the matter by letter dated June 17, 2019. It is true that the actual appointment was made after the nominal expiration of the collective agreement on April 30 but the matter was referred to arbitration well before that date. The only thing that remained outstanding was the particular arbitrator who would hear the dispute.
• Even if I am wrong, the collective agreement was continued under the terms of Article 2.200. It provides that once either party serves a notice to bargain, the agreement shall continue in full force and effect until the Union serves a notice to strike or the Employer gives a notice of lockout or the Parties shall conclude a new agreement.

7.                Conclusion

• In the result, the motion by CLRA to abrogate the referral by the Union to arbitration is dismissed. However, prior to entering upon the question, I choose to refer the matter back to the Parties for their further consideration upon the principles and policies discussed in my award. While I have determined that there is a viable dispute on the substantive issue relating to a monetary increase, there are also inherent interpretive issues including the applicable term of the reopener and the proper application of the condition specified by the mediator that any increases under the reopener shall be deducted from the increases under the new collective agreement.
• The main issue to be considered by the Parties emanates from that condition, whether there is any practical point in going ahead with the arbitration under the circumstances where it may not result in a net benefit beyond the increases negotiated under the new agreement. This will turn on a determination by the Union how much of an increase it can establish that Bricklayers should be paid, if anything, using the appropriate objective interest arbitration standards and criteria, beyond what was agreed under the current collective agreement. If the Union elects to proceed on that basis it shall serve a notice in writing to my office to that effect with a copy to Counsel for CLRA within fifteen (15) calendar days from the date of this award.  In that event, the hearings already agreed by the parties shall proceed from September 18, 2019 through September 20, 2019 at a time and place to be determined by the arbitrator.

DATED this 20^th day of August, 2019 at Tsawwassen, British Columbia.

Dalton L. Larson

Arbitrator