June 19, 2009

British Columbia court finds bias in board ruling

Temporary workers’ case needs fresh hearing, union says

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 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.

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