Warner Bros. Television (BC) Inc (National City Films Inc – “Supergirl”) v Teamsters Union, Local 155 and British Columbia and Yukon Council of Film Unions (Grievance of Mark Johnston) Decision dated May 10, 2017

This case relates to the application of the “three strike rule” set out in Article 10.07 of the industry-wide Master Agreement. The rule provides that an employee who is discharged three times for just cause receives an industry termination, i.e. the Union must no longer dispatch the person, and industry employers are not required to employ the person.

In this case, the Grievor was discharged from the production of “Supergirl” by its single purpose production company and parent company (collectively, the “Employer”). Teamsters Union, Local 155 (the “Union”) challenged the termination on the basis that it was without just cause. The Employer made a motion to dismiss the grievance on a preliminary basis. It argued the Grievor had already been discharged for just cause on three past occasions by other employers; accordingly, the Union ought not to have dispatched the Grievor, and the Employer was not required to employ the Grievor in the first instance. Therefore, according to the Employer, it was not necessary to demonstrate that the termination from its production was for just cause.

There was no dispute the Grievor had been discharged for just cause from two productions, “Underworld” and “Proof”. However, there was a dispute as to whether the Grievor had been discharged from a third production, “Smallville”. The single purpose production company that produced Smallville was a subsidiary of Warner Bros Television (“WBTV”). The evidence showed that in 2009, the production manager of Smallville sent the Union a letter requesting that the Grievor not be dispatched to the production. In 2011, WBTV sent the Grievor a letter headed “Final Warning”. The letter stated that the Grievor had been discharged from Smallville for serious misconduct including the use of profane language and insubordination. However, the letter stated that after successful advocacy by the Union, the Company had agreed to reinstate the Grievor’s eligibility for employment on other productions of WBTV.

The Arbitrator agreed with the Employer’s submissions and found that the Grievor had been discharged from Smallville for just cause, namely the use of profane language and insubordination, notwithstanding his subsequent “reinstatement” by WBTV. Therefore, it was not necessary to decide whether the Grievor’s discharge by the Employer was for just cause. Having been discharged for just cause from Underworld, Proof, and Smallville, the Grievor was subject to industry termination and the Union ought not to have dispatched him.

The Arbitrator dismissed the submission of the British Columbia and Yukon Council of Film Unions (the “Council”), which argued that the Arbitrator should first determine whether the Grievor’s true employer with respect to Smallville was the single purpose production company or WBTV. The Council argued that if WBTV were the true employer, then the Grievor’s disciplinary incident with respect to Smallville was a suspension and not a discharge for the purposes of Article 10.07 of the Master Agreement, because WBTV reinstated the Grievor and did not bar him from employment on future productions. The Arbitrator said he did not consider the true employer question to be cogent to the application of Article 10.07.

The Arbitrator also dismissed the Union’s arguments. The Union argued that the Grievor had been suspended, not discharged from Smallville; that it would be unfair to apply any discharge from Smallville now, five years after that incident; that a new employment relationship was created when the Grievor started working on Supergirl; and that the Grievor was entitled to the adjudication of his grievance on the merits, i.e. whether the Employer discharged him for just cause. The Arbitrator disagreed and dismissed the grievance on a preliminary basis.

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English (Canada)