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Employment LegislationContracts within a legislative framework Labour: can not contract out of employment statutesExceptions: temporary lay offsEmployment Standards Code settlement disputeminimum standardsLabour Relations CodeProcess for e/ees to elect to associate and bargain collectivelyAlberta Human Rights ActDiscrimination permitted if for a bona fide occupational requirement rationally connected to jobadopted in honest good faith beliefreasonably necessary for legit work related purposeimpossible to accommodate w/o undue hardshipOccupational Health and Safety ActObligations for Employees and Employers and substantive rightsPersonal Information Protection ActRE: collection, use, disclosure of personal infoGeneral rule: consent is requiredExceptions: employment relationship, reasonable disclosure, notificationApplies to surveillance and discipline1 Historical OverviewLimitations of Non Union Employment Unequal bargaining power, means to litigateLimited mechanisms for dispute resolution and protection No right to reinstatement for wrongful dismissal (damages only)No meaningful consideration of seniorityTorts engaged by union activity:Enducing breach of contract, Trespass, Heath Services and Support – Facilities Subsector Bargain. Assn v BC 2007 SCCFacts: Legislation invalidated existing CA and affected ability to bargain in certain areass. 10 invalidates any CA that did not comply with the statute removed various topics from CA bargainingIssue: Unions claim s. 2 (association) and s. 15 (Equality) Charter claimsHeld: No s. 15 breach as adverse affect based on type of work not type of personHeld: Some provisions breach s. 2(d) Freedom of AssociationS 2(d) Charter includes procedural right to collective bargainingDoes not protect all aspects of collective bargainingOnly protects against substantial interference with associational activityTest: What constitutes “substantial interference” – capacity to bargain collectivelyThe importance of the matter affected to the process of collective bargaining Manner in which the measure impacts on collective right to good faith negotiation and consultationIf changes substantially touch on collective bargaining they must preserve a process of consultation and good faith negotiationBoth are required: important matter and a violation of duty of good faith negotiations combined will constitute a breachs. 1 justification?Pressing and substantial objective, rationally connected, minimal impairment, proportionate effectsDevelopment of Labour Relations Law eras: Labour movement grew with industrial revolution1. Repression:Law used as a tool to limit workers rights to unionizeCriminal sanctions for union related activities (particularly striking)Common law: doctrine of criminal conspiracy – agreement whereby employee refuses to work except at stipulated rateEnglish Combinations Act: 1799/1800 criminal offence to be a member of a union, call a strike or contribute $ for union 1825 no longer a crime for unions to negotiate wages/hours BUT offence to induce employees to join or strike and no obligation to recognize unions2. Toleration:1872 Toronto Typographical Union Strike – criminal conspiracy charges laidLead to Trade Union Act 1872Common law principles still employed to restrain union activitiesNo worker could be criminally prosecuted for conspiracy for attempts to increase wages, decrease hours of work or improve working conditionsTorts were still used to limit strike activityNo legislative obligation to recognize unions and no protection for employees who engaged in union activitiesLarge number of strikes mostly bc of refusal to recognize unions3. Recognition:In 1935 US Wagner Act: goals: Industrial peace: methods for resolving disputes to avoid damage to economy and resulting political turmoil and violenceRemedy under consumption - increase earnings/purchasing powers of worker to promote economic recovery and prevent future depressionCollective bargaining and balanced bargaining power (actual freedom of contract)Redress unequal bargaining power Free choice: individuals have the freedom to organize and choose their representativesIndustrial Democracy – promote a democratic workplace and create a sense of worth and participationCanada:1930’s Wagner Act principles adopted in Canada (provincially and federally)Initially only applied to private sector but expanded to public in 1965 to 1973Wagner Act: main components Entrenched right to belong to union Prohibited unfair labour practices (coercion/intimidation by employers)Impose duty to bargain in good faith w/ unionsEstablished Board – to investigate unfair labour practices, supervise certification votes (removed labour law jurisdiction from courts)CharterCollective bargaining protected under s. 2(d) freedom of associationcollective bargaining is a fundamental freedom (Sask Fed. of Labour SCC 2015)Recognizes the right to strikeRepresents a new era of labour relations lawInternational lawCan be used to interpret CharterInternational Covenant on Civil and Political Rights AND International Covenant on Economic, Social and Cultural Rights AND Convention concerning Freedom of Association and Protection of the Right to OrganizePrinciples of Canadian Labour LegislationFreedom of Association (right to belong to a union)Union recognitionCompulsory bargaining rights for certified trade unionsPostponement of right to strike until after government intervention Prohibition of unfair labour practices Establishment of legal status and enforceability of CAProvisions for resolving disputes w/o resorting to strikesRegulatory bodies w/ investigative and control powers over labour relations2 Trade Unions and Employers’ OrganizationsDefinitions:Trade Union: organization of employees with a written constitution, rules or bylaws and objective the regulation of relations between employers and employees Collective agreement: written agreement between employer and bargaining agent containing terms and conditions of employmentUnions General Structure:International/National/Provincial: high level policy issuesLocal (trade unions for the purpose of the Code): daily issues, bargaining rightsStatus of the Union:unincorporated associationrecognized under AB Labour Relations ActCan be liable for torts, statute breaches, criminal sanctions (s.25)Employee associations may not be readily recognizable as a UnionCan be created and recognized by the employer to avoid aggressive trade unionEmployer Organizations Group of employers who form organization to collectively bargain Important in context of construction industry – registrationMandated for some industriesUsed to regulate wagesLegal entity w/ associated liabilities and rightsLabour Relations CodeEmployee rights (21(1)):To be a member and to participateTo bargain collectively with employer through bargainingQualified right: e/ees can be removed for failure to pay dues or misconduct/breach of bylawsProhibited practices by trade union (151)Ex. can’t expel employee for failing to perform an act CONTRARY to this actSuspension/expulsion from union (26)Failure to pay dues ORWritten notice of charges served on employee, reasonable time to prepare defence, full and fair hearing w/ counsel AND found guilty of chargeTrade Unions RulesFiling requirements (24): constitution, info of officers (ex. president, secretary) who are authorized to sign collective agreements, update as needed Union as a legal entity (25): can prosecute/be prosecuted, sue/be suedRestraint of trade allowed to extent they are necessary to carry out duties under the ActUnion dues (27): employee may authorize employer to deduct union duesException to employment standards code that does not authorize deductions without authorizeemployees REQUIRED to be union members (29)Board discretion to give religious exemptionsThe exempt are still required to pay dues but they go to charityTypes of Union Security Arrangements:1. Union shop current and future e/ees must join union w/in specified time after they are hired must remain as a member in good standing as a condition of continued employmentDues are obligatoryEmployer has right to decide who they hire2. Closed shop Person must be a member of the union before being hired by the employerMust remain a member in good standing as a condition of employmentDues are obligatory, access to union jobs, pensions providedUsual in construction or maintenance industry (trades work)3. Agency shop (AKA Rand Formula)Membership is not requiredNon members must pay the union an amount equal to dues paid by membersLegislated in some areas4. Maintenance of membershipNew employees not required to joinExisting members must maintain membership and pay dues as condition of employment5. Dues check off S. 27 provides for compulsory deduction of union dues upon written authorization of the employee (subject to religious objection)UncommonLegal status of Unions:Historically: treated as unincorporated associations - Not legal personsUncertainty exists as to whether a trade union can be sued for reasons other than a breach of the CodeUnions legal entity status “for the purpose” of the code (25)Maritime Employers Assoc SCC 1979Facts: Harbour Police strike. Stevedores refuse to cross picket line (illegal strike)Court issued an injunctionUnion appealed - argued that an injunction can’t be issued against an unincorporated trade union:Held: unions are legal entities capable of being subject to an injunctionLegal entity for certain purposesGiven rights and obligations by statute that natural persons do not possess that can only be employed by a legal entityEx. Right to: merge, be party to agreement, legal obligations re: strikes, can bring complaints against an employerCriminal Liability of Trade UnionsUnited Nurses of Alberta 1992 SCCFacts: Nurses went on strike contrary to directives filed in QB court. Union found in criminal contempt and fined.Issues:1. Whether union had status to be found guilty of a criminal offence ex. criminal contempt (yes)Union is an unincorporated association Relied upon Maritime Employer that unions can be sued for breach of statuteAlong with status for collective bargaining purposes – unions have corresponding obligationsIf unions act unlawfully the court can impose all remedies availableHistorically common law denied unions legal status to limit enforcement of collective agreements but this no longer appliesCriminal contemptCommon law offence (not codified) includes element of public defianceProof beyond a reasonable doubt(AR) disobey court order in a public manner(MR) W/ intent, knowledge or recklessness as to the fact that act will depreciate authority of the court2. Whether a directive of a prov board filed in court could give rise to criminal contempt (yes)does not create a criminal law (federal jurisdiction) but it does engage itDissent: concern regarding effect of decision on union activityPersonal Liability of MembersBerry v Pulley 2002 SCCFacts: Merger of Unions would trigger an integration of seniority lists. Air Canada pilots objected and formed their own union. Appellants (union members) sued Air Canada pilots personally in tort: conspiracy, interference w/ economic relations and contractual relations (summary judgment - allowed) and for breach of contract (summary judgment – dismissed).Issue: whether a union member may be personally liable to other members in a breach of contract action based on the terms of the union constitutionHistorically union members were seen as bound by a web of contractsEventually recognition obtained for legal status of trade unions replaced web theoryEach union member has a contractual relationship with the union regulated by statutory labour relations regimeHeld: there is no individual liability of a union member to another union member for breach of contract/constitution (only to the union itself as it is now recognized a legal entity)Principles1. Unions can enter into membership contracts directly with each of their members2. Terms of these contracts are shaped by the union constitution and statute3. Union members have no contractual obligation to other members4. Union members can be liable in tort to other union membersFullowka 2010 SCCFacts: During a strike workers set off bombs killing 9. Other issues: Pinterton and Royal Oak owed a duty of care but had met that dutyIssue: whether the national union and local union are a single and entity and therefore the national union can be liable for the actions of members of the local union? (NO)Status of the UnionLocal and National Unions can be the same or separate entitiesLocal and National Union are separate legal entities in this caseLocal Union was a legal entity capable of being suedLocal was a certified bargaining agent for workers at the relevant timeIs a separate legal entity from national union as per Canada Labour Code, constitutional arrangements between local and national and terms of mergerNational union not liable for debts and obligations of the localLocals have bargaining power, own executive, decision making structures, enter into contracts enforceable against them, can own propertyMerger documents clearly identified the unions as separate Depends on: statutory framework, collective bargaining agreement, constitution of the unions, merger documents (if exist)National Union did not control local union (based on facts of case)Issue: Vicarious liability:National has no vicarious liable for the actions of the membersRelationship was not sufficiently close (no control)Ratio: Unions are not automatically vicariously liable for torts of members (depends on control)If act is done at the request of the union OR occurred during the discharge of an assignment given to them by the union then liability will followDistinguishing union liability from employer liability:Union does not choose membersContract is different (union does not negotiate terms w/members)Union members have a democratic right and can voice concerns regarding the executive of the unionsHigher standard to find unions vicariously liableVicarious liability test:1. Is the issue unambiguously determined by precedents (if No go to 2 part test)2. Was the relationship between tort feasor and defendant sufficiently close Members are not employees, servants or agents of the unionMembers have unqualified right to speak out against bargaining agentRelationship is contractual but limited by statuteUnions do not control who becomes a member3. Was the wrongful act sufficiently connected to the conduct authorized by the defendantIssue: Joint LiabilityIndirect liability for tort of another where the defendant incites the other person to commit a tortLiability if act was furtherance of a common designAnalysisUnion can’t be liable simply for taking strike action and picketing No common design (murder)Consider: whether union is liable for inciting mass murder (NO)Practice point: Merger occurred between the time of the loss and the Trial (local and national)Plaintiff lawyer: fails to sue the new local and is time barred from doing so3 Federal VS Provincial JurisdictionFederally Regulated10% Federal Regulated and governed by Canadian Labour CodeS. 4(2) AB Labour Code does not apply to employees covered by other statuteSome businesses can be subject to both provincial and federal regulationBoard will generally err in favour of having jurisdiction unless it does not further a labour purposeCanada Labour Codeincludes: employment standards, occupational health and safety and labour relations codeS 2 Federal work, undertaking or business (not exhaustive):Navigation and shippingInterprovincial: rail, canal, telegraphInterprovincial shippingInterprovincial/international ferryAerodromes, aircraftRadioBanksAnything declared by Parliament to be general advantage of 2+ provincesAnything outside exclusive provincial jurisdiction1. What is the jurisdiction: provincial or FederalConsider s. 91 and s. 92 Constitution ActJurisdictional issues can be tactical depending on which legislation allows for more favourable outcomeEx. company that operates across the country – union may want a single bargaining unitTessier v Quebec 2012 SCC Tessier is a heavy duty rental and operating company. All activities were within Quebec. Their employees/equipment also perform stevedore services (Port). Tessier sought a declaration of Federal jurisdiction (shipping) To avoid higher cost of premiums for provincial Occupational Health and Safety Held: Provincial regulation applied. BC the majority of work was provincially regulated activities the stevedore’s activities were integrated with overall operations Stevedores constituted a minor part of the operation (20% of wages, 14% of work).Law: Labour relations is presumptively a provincial matter property and civil rights s. 92(13) CA (Toronto Electric Commiss 1925)Federal jurisdiction in two circumstancesDirect: Employment relates to work, undertaking or business within authority of Parliament Derivative Jurisdiction: Employment is an integral part of a federally regulated undertaking Historically stevedoring was found to be a derivative jurisdiction (not direct jurisdiction)Derivative - Functional test:Dominant nature of work is assessed to determine if it is integral to a federal undertakingAnalysis: relationship between activity, the employees, federal operation said to benefit from work of the employees is the performance dependent on the servicesexceptional aspects of an enterprise do not determine its ongoing characterFederal regulation justified if:Undertaking form principal part of the related work activities ANDServices are performed by employees who constitute a discrete unitNorthern Air Solutions v UFCW 2015 Canada Industrial Relations BoardFacts: Northern Air offers both charter and ambulance services. UFCW applies for federal certification.Employer: argues air ambulances are a distinct business and paramedics are subject to provincial regulation (health care)Concedes charter service is federal under POGG powerUnion: argues air ambulance is an interprovincial airline businessHeld: Federal jurisdictionUnique character is transportation of patients by plane (air transport)Federal jurisdiction over aircraft and air transportBUT for the air transport the company would not be in businessFunctional test:Presumptively provincial jurisdictionIs it a federal undertaking: Nature of operation with focus on habitual activities as opposed to exceptional/casual activities Focus on enterprises essential operationWhether operation is a single indivisible integrated undertaking(if Yes: then it is federal jurisdiction. If No consider)Whether provincial regulation impairs core of federal jurisdictionFederal jurisdictions:Core federal undertakingOperates in common w/ another core, federal undertaking as a single, indivisible, functionally integrated unitEntities activities are vital, essential or integral to core federal undertakingWest Coast Energy v Canada National Energy BoardFunctionally integrated: subject to similar management control and directionClose commercial relationship does not sufficephysical connection does not sufficeUnited Nurses of AB v Blood Tribe 2011 ABFacts: Certification Application. E/ees voted in favour. E/er argued LRB no jurisdiction bc operations were federally regulated.In favour of federal jurisdiction: federal funding, band council has bylaw making power re: health, principle service for IndiansIssue: Jurisdictional issue: whether labour relations in health services on a reserve is provincial or federal jurisdiction (Held: Provincial)Health care is provincial jurisdictionProvincial laws of general application apply on a reserve (including labour laws)s 91(24) CA – SCC held Federal power over rights and status of Indians to be construed narrowlyHealth care is primary focus (Aboriginal status of employees or clients is irrelevant)Presumption of Provincial Jurisdiction (rebuttable through functional test)SCC in Native Child: it is WHAT you do not how or to whom (services to Abor. not automatically Federal Jurisdiction)Functional test: examine nature, operation and habitual activities of the entity to determine whether it is a federal work, undertaking or businessOnly if a functional test is inconclusive: go to determination of whether prov jurisdiction would impair CORE of federal head of powerNHLPA v NHLIssue: NHL argued board has no jurisdiction because parties had agreed to national agreements under the US Federal jurisdiction. Board should decline jurisdiction for policy reasons.Jurisdiction a tactical matter NHL lock out out employeesNHLPA wanted Alberta LRB to assert jurisdiction to declare lockout illegal and a cease and desist orderIn previous suit the parties had taken opposite approaches: NHLPA claimed no provincial jurisdictionHeld: provincial board decides not to exercise jurisdictionDoes not bar future jurisdiction decisionsDid not want to interfere w/ existing system and remove Alberta teams out of the larger national system4 Labour Relations Board Independent quasi-judicial body w/ Adjudicator role NO prosecutorial roleCreated by statutePrimarily deal w/Certification/revocation of union certificateDetermining membershipRegulation of bargaining (ex. negotiating CA)Regulation of unions activities Admin: requires procedural justice/natural justice, neutralityIndependent of government affairsSpecialized with a view to advancing labour policyDecisions are not strictly binding on future decisionsRelations: importance of relationship e/er and e/eeBoard ongoing interest in mediation and dispute resolutionJurisdiction: Administers: Labour Relations Code, Public Service Employee Relations Act and Police officers Collective Bargaining ActCertification of unionsModification/cancellation of collective bargaining rightsUnfair labour practice complaintsSome factual issues: ex. whether a person is included in a bargaining unit Can decide constitutional issues (provided by statute)Not in its jurisdiction:Mediation, non unionized workers, employment standards, wrongful dismissal, work place conflict or grievances (unless they are breaching the code: ex. dismissal for union activities)AB jurisdiction: do not hear appeals from arbitrator – do in other jurisdictionsCan assist to expedite the arbitration processDoes not apply to e/ee or e/ers covered by the following statutes:Public Service E/ee Relations Act or those covered by another actGov’t of AB, Post Secondary facultyPolice Act except as applicable to PO collective bargaining actLivestock Industry Diversification Act (exclusion has been repealed but the repealing section is not yet in force – not yet proclaimed)Domestic work in private dwellingProfessionals as governed by a professional regulatory statute (lawyers)Structure: 1. Adjudicative Section: chair and vice chairs (neutrals)board members from union side board member from management sideboard members are not necessarily lawyers (must adjudicate w/ open mind)Three sitting (neutral and one from each side)2. Administrative Section:Head by director of settlement, manager of settlementBoard Officers – handle file until date of hearing (scheduling, informal settlement attempts)Process: Statutory tribunal: authority only as per statute (La Roy)No inherent jurisdictionCommenced w/ applicationNot bound by rules of evidenceCan argue the exclusion based on the principles underlying the rules of evidenceUrgent applications: illegal strikes, illegal lockouts, violence on picket linesRemedies and CostsResolution conferenceUsually mandatedIf resolution is not made then case management issues are addressedRemedial powers: Remedy: rectify the situation and put the party in the position they would have been had there been no violation of the statuteNo punitive damages awarded and rarely awards non pecuniary damagesRectify breaches of the CodeRemedies as appropriateS. 17(2) can’t certify a union or revoke a union w/out confirming a employee votePrinciples guiding remedies:Must relate to the complaintAppropriate to a continuing relationshipRestorative NOT punitiveDamages must be reasonably foreseeableRemedies MAY consider deterrence as a secondary considerationTypes of Remedies:Directives: ex. cases and desist orders for illegal strikes or lockoutsInterim directives: Posting/mailing decisions and noticesWill not force apologies (appears punitive and will be insincere)Reinstatement – to employment, to unionCompensationRescission of disciplinary actionRelocation orders: when an employer shuts down to evade a union then board can order relocation of employeesExtending grievance timelinesMitigation of lossComplainant must prove damagesRespondent must show e/ees failure to mitigateCostsBoard cautious re: awarding costsPunitive, adversarial connotationsGenerally limited to trivial or abusive complaintsBound by Statute:LA ROY v ATA 2015 ALRBFacts: Roy applied to be exempt from membership and dues based on religious beliefs. HELD: Board does not have jurisdiction to provide exemption as membership is mandated by the Teaching Profession ActBoard has no jurisdiction to exempt ROY from membership obligations set out in statuteCourts have the jurisdiction re: Charter arguments of a statuteClass:Teachers union: is a union and a professional regulatory bodyAct has since been amended to allow for an exemptionDunsmuir v NB 2008 SCCFacts: D was dismissed. D grieved bc no reasons given and no opportunity to respond. Allege lack of notice, due process or procedural fairnessJudicial review:Correctness standard: reviewing court will not show deference to reasoning process and will undertake its own analysisReasonableness inquiries: analysis of the qualities that make a decision reasonable (justification, transparency and intelligibility)Standard of review: consider jurisprudence, legislature’s intent, question of fact or law, expertise of decision makerFactors that suggest deference/reasonableness test:Privative clause: statutory direction to give deferenceDiscrete/Special administrative regime with special expertiseQuestion of fact or law (not of central importance to the legal system)Correctness standard:Constitutional questions regarding division of powersJurisdictional inquiriesGeneral law issuesProcedural Fairness:E/ee is bound by contract (not a union member)If decision to terminate is w/in public authorities powers and is taken pursuant to an employment contract – there is no public law purpose for imposing a duty of fairnessRatio: judicial review should focus on substance, nature of the issueJudicial review: Highly defferntial to board decisions bc of expertiseConstruction Labour Relations 2012 SCCFacts: AB Labour Relations Board dismissed an application for judicial review. Held: Board decision was reasonable and entitled to deferenceCA erroneously held that the Board did not give proper consideration to interplay of statute provisionsThis is not requiredBoard is not required to address every issue raised by the partiesEssential Services (ES)If interrupted would endanger life, personal safety or health of public ORNecessary to the maintenance and administration of the rule of law or public security Who is an essential service:Certain public sector, public post secondary non academic staff, health servicesThey require essential service agreementNo Strike Model: Fire, some ambulance drivers, Police Strikes/lockouts are prohibited They may apply for compulsory arbitrationEssential service agreement: Negotiation ModelRequired before taking strike or lockout actione/er and union negotiate the agreementUmpire can be used to assistEnsures sufficient e/ees would continue to workFiled ES agreement required before (unless exemption granted):Appointment of a mediator to assist w/ collective bargainingStrikes/lockoutsRequired content:Identifying essential services to be maintained during strike or lockoutClassification of ES e/ee, methods of assignments during work stoppage, flexibility, identifying umpires, notification processDeclaration of Substantial InterferenceES agreement will not be accepted/filed by Commissioner if it would substantially interfere w/ meaningful collective bargainingMay arise in following circumstances1. Commissioner refuses to accept agreement for filingNo acceptable agreement can be made2. Commissioner unable to settle terms of a ES agreement3. Significant change in circumstances applicationDuring a work stoppageIssues that were addressed in response to historical conflicts:Does not allow for replacement workersUnaddressed issue:Does not allow for the use of other workers from different unions (ex. LPN’s doing RN work) for required workSaskatchewan Federation of Labour v Saskatchewan 2015 SCCFacts: Sask introduced 1. Public Service Essential Services Act – limited ability of public sector e/ees who perform essential services to strike. No meaningful mechanism for resolving bargaining impasses was provided.Held: Act violates s. 2(d) and is not justified under s. 1. UNCONSTITUTIOALWorkers can not achieve goals w/out effective bargaining mechanisms or right to strikeRight to strike and to bargain collectively is protected by s. 2(d) CharterTest: whether the legislative interference w/ right to strike in a particular case amounts to a substantial interference w/ meaningful collective bargainingMaintenance of essential services IS a pressing and substantial objectiveBUT: means chosen by Sask are not minimally impairinge/er given unilateral authority to dictate servicesno meaningful review of these decisionsDid not tailor duties to ONLY essential workno meaningful alternative mechanism for resolving impassesHeld: applied to too broad of a scope of e/eesessential services: defined by international conventionprotection of life and maintenance of order Dissent: s. 2(d) does not protect the right to strike (it is a statutory right)Types of approaches to ES strikingUnfettered (AB: private sector) – default modelNo strike (AB: police, fire, ems, hospitals) – must include a system of facilitating collective bargaining (ex. binding arbitration)Designation/controlled strike (AB: public sector workers – child welfare, corrections)Ad hoc – legislation to end strike or imposing collective agreementsS. 2(d) Charter: Freedom of Association and Collective Bargaining1987 – AB adopted no strike model for regulating public sector e/eeIndividual right to join and have a union are constitutionally protectedStrike and collective bargaining are NOT constitutionally protectedGov’t: imposed binding arbitration, dictates which union would represent e/ee, refused RCMP unionFarm Unions:Historically no unionizing for domestic of farm workers bc did not want unions in homes or small family farms. ON gov’t repealed statute allowing farm workers to unionize. SCC held: Statute prohibiting association was unconstitutional (Dunmore v Ontario 2001)Health Services Support Workers vs BC 2007 SCCFacts: attempt to restructure health care. Reduce services and privatization. Introducing statute stripped ability to bargain and existing collective agreements of existing provisions that conflicted w/ new government agenda. Held: struck down as substantially interfering w/ ability to collectively bargainRatio: Right to collectively bargain is constitutionally protectedFraser v ON 2011 SCCFacts: statute permitted farm worker unions w/ minimal rights e/ee right to make representations and e/er consider them in good faithNo method of enforcement of union rights. Held: upheld legislation bc law did not make it impossible to unionizeCollective bargaining is constitutionally protected (Health Services Support)BUT: only protects association right – doesn’t dictate a particular result or processRCMP Association Ontario v Canada 2015 SCCFacts: Method of collective bargaining that was skewed in favour of e/er. Held: process of collective bargaining was not meaningful: no independence of management, no effective bargaining, no meaningful input into collective goalsOverturned Fraser contention that statute had to make it IMPOSSIBLE to unionize5 Who is an EmployeeCode does not apply to following e/ee or e/ers (4)As defined by Public Service E/ee Relations Act (Prov Gov’t)Covered by another ActPolice Officers – as per Police Act except to extent it is made applicable by the Police Officers Collective Bargaining ActAgricultural workers (repealed by not yet in force)E/ees in private dwellingPublic Service E/ee Relations Act related to e/er designated by Act of Legislature ORAppointed by governmentEx. HospitalsDefinitions Employer: person who customarily or actually employs an employeeEmployee: work in receipt of or entitled to receive wages Does not include: Managers and ProfessionalsExceptions:1. ProfessionalsMedical, dental, architectural, engineering, legal professions and nurse practitioner are excluded as e/ees when working in their professional capacityExclusion operates if three conditions are met:1. members in profession under the governing body2. must qualify under AB law to practice their profession3. must be employed in their professional capacity2. Managersto avoid conflict of interestprevent union access to certain informationdecisions may make decisions adverse to union members (discipline)Decided on case by case basisCode does not define term Consider Conforce Products factors: right to hire/fire on own initiativedirect workforce,grants time off determine wage increases and promotionsparticipate in grievance procedurediscipline e/eepower of independent discretioncontrol over performance appraisalsadminister collective agreementparticipate in policy decisionsparticipate in budget preparationConsider: nature of industry, size of institution, particular employer organizationDifferentiate between experience and managementManagers are involved in policy matters: Whether they exercise independent decision making responsibilities that impact the employment relationshipPrime Function Test: titles not determinativefact based analysisamount of time spent management activities1. Managers duties involve labour relations activities: information handling or strategy2. Involvement w/ this information is on a regular basis3. Disclosure of this information would adversely affect the employerManager ExclusionRe Central Park Lodges 1996 AB LRBRIssue: whether newly created position of nurse managers were e/ee in bargaining unit or exempt as managersHeld: they are e/eeConsider global role not just whether indicia of management are presentManagement functions were peripheral and incidental aspects of the jobE/er dispersed managerial functions among numerous personsPrimary function: patient care at a higher levelPrimary duty was not management of other e/eeSprinkling: e/ers gain undue numbers of exclusions from a bargaining unit by taking factors which the board has found to be indicia of managerial status and distributing them broadlyBad faith sprinkling will not be permittedRequires legitimate rationalizationAnalysis: Ability to fire: unlikely it would happen often Ability to hire: team approach, involvement varied between individualsPerformance appraisals: not much subjective consideration (inconsistent w/ other rulings)Discipline: Nurses minor disciplinesGrievance process: participated in step 1Court inferred sprinkling as nurses had no training or understandingATU – Local 569Issue: classification of Edmonton Transit as e/eesCity argued: managerial and confidential capacity exclusionsConfidential information exclusion: Access to information relating to: contract negotiations, board hearings, grievancesAccess to this information is part of employee’s regular duties (not incidental)Litmus test: disclosure of information would have adverse impact on employer’s interest from an industrial relations standpoint Types of confidential informationCompetitive information/trade secrets (N/A)Personnel information (payroll etc)Labour relations – contract negotiations, bargaining strategyEmployees:Scheduling: e/eeSpends 3% of time costing out proposal for scheduling changes for collective bargaining purposes Senior Dispatcher: e/eeSupervise, evaluate, assign shiftsAct as part of a team: interview and hireMinor part of job: discipline, hiring, firingNot EmployeesSafety officer: NOT e/eeinvestigate accidents and evaluate operatorsRecommendations accepted 50% of timeCould result in disciplineService and LRT Inspectors: NOT e/eeIncident reports may affect operators50 performance appraisals per yearRecommendations accepted 98% of time (effective recommendation)Contractor exceptionSagaz Industries 2001 SCC1. Determining: E/ee or ContractorContractor factors (not exhaustive)Control: operational control Ownership of equipmentAbility to hire helpersDegree of financial riskResponsibility for investment and managementOpportunity for profitMidwest Pipeline 1990 AB LRBCertification Application: rig weldersincorporated (sole proprietor) and unincorporatedOfficer held: incorporated rig welders were not included bc a corporation can not be an e/eeHeld: Both: e/eeowning own tools did not suffice to make them contractorsincorporated welders: corp is just a vessel not actually i/c of renumerationCode can’t apply to corporations but MAY apply to sole proprietorsHired w/out bidding, used own equipment, no requirement of proof of bonding or insurance, hourly rate, e/er provided materials, no holdbacks in case of poor work, only paid if worked, no ability to subcontractE/er: hired, fired, hired helpers, set work hours, directed work and established rules, disciplined, operational controlMontreal Locomotive factorsControl, ownership of tools, chance of profit, risk of lossAdams factors: E/erDirection and controlBurden of remunerationHiring Imposing disciplineDismissPerceived as e/erIntention to create e/er relationshipAssociated Cab (AB) LtdHeld: Independent Contractors – drivers who own their own limosOwner/operators earn income: own customers, que at airport (under CO authority, dispatch (by CO)In favour of them as contractors:Remuneration: company tallies bills, credit card slips put toward billsAccepted cash w/out having to reportDecided own schedule – limited operational controlMaintain own vehicleNo deductions to pay, no benefits, no WCB coverageRules as per contract w/ airport and bylaws – not company policiesDiscipline: re attire but violations enforced by airport (no evidence discipline occurred)Separate advertisingNo written agreementOwn equipmentChance of profit/risk of lossIn favour of them as e/eeRequired an affiliation with company to access the airportAirport Taxi Service ABQBHeld: taxi drivers were e/eesWages can be paid by third partyDistinguished on numerous grounds: discipline, e/er controlled airport queue, drivers did not own, max fees set by e/er7 CertificationMethods1. “Organized” a campaign to become certified bargaining agent for either: a previously non-unionized workplace A workplace where the employees are represented by another union “raid” – an attempt induce a union switch (subject to the provisions and limitations in the Code) 2. Voluntary employer recognitionBefore legislative certification process this was the only option for unions Voluntary recognition motives:may bc of good working relationship with unionCLACK: employer friendly unionOrganizing CampaignUsually secretSign union membership cards or petition in support of UnionCannot campaign at employer’s place of employment during normal hours of work: Section 151(d)Some exceptions applyE/ee can only organize during work breaksFocus: employees choose whether and by whom they are representedWhat Can an Employer Do? LRC prohibits e/ers from interfering with employees’ choice of bargaining agentS. 148 prohibits an employer from interfering with the formation, administration, or the representation of employees by a trade union Express views as long as there is no: coercion, intimidation, threats, promises, or undue influence (ex. I’ll shut down the plant = threat)Can prevent union organizers from accessing the employer’s property (trespass act)BUT e/er can’t discriminate against the union: ex. prohibit union reps from a public accessible work placeWhat Can an Employer Say? Can express views but no threats, promises, undue influenceNothing: conservative approach and minimizes the risk of unfair labour practice complaints (which may be used as a “rallying point”) Should designate “front line” managers/supervisors to communicate on behalf of employer within certain parameters May communicate in writing or verbally (preference for in writing)“captive audience” – i.e. on company time, on company premises, where staff “forced” to listen to employer’s representations (intimidation factor)Ensure accurate, complete information available to e/ee about union Provide employer’s viewpoint about disadvantages of belonging to a union but must avoid conduct that amounts to offering promises, threats, intimidation, or misleading information as an inducement to resist a Union May rebut inaccurate information about company put forth by the Union Employees must vote for the vote to count – vote is tallied out of # of actual voters/not potential voters Union’s promises during its organizing campaign require e/er agreement“third party” – will create a third party involved in communications between e/er and e/eeUnion dues or obligations of union membershipEmployers May Not: Tell employees that there’s “no second chance” – there are revocation provisions Make negative statements about collective bargainingSuggest union motivated by profitCirculation of any anti-union material that is facilitated/supported by management (i.e. photocopier, etc.), or facilitating/assisting a meeting of this nature to take place Offer rides to representation vote for a “no” voteAsking employees whether or not they have signed a union membership cardSuggest that terms and conditions of employment would improve without union Confidentiality The privacy of e/ee re: application is protected Board NOT required to divulge information RE: person’s union affiliation 14(6) Certification vote is a secret ballot E/er can’t ask e/ee about how he voted (unfair labour practice)Certification Application:Union determines it has sufficient supportApplication submitted Investigation, hearing, vote (ASAP)Board role: Supervise certification processStep 1: applicationRequire evidence that 40% e/ee support from proposed bargaining unitEvidence: membership OR petition (one or the other)Membership: member in good standing OR application w/ fee paidConsidered at the time of the application Petition (w/in 90 days of application)Subject to time limits: S. 37(1) Constitutional documents 60 days prior to applicationS. 57: 90 day wait between applications (withdrawn or denied)Raid: s. 37(2) If a bargaining unit already exists or a CA is in place there are certain times when a union can apply for certificationStatutory Freeze – s. 147 Upon notice of application: e/er is prohibited from changing the rate of pay, rights or privileges the terms and conditions of employment from date of application and: date or refusal OR 30 days after certificationwith certain exceptions: Established custom or practice Consent of union In accordance with collective agreement (if one is in effect) Step 2: processing applicationsBoard officer assigned, parties notified, notice posted in workplaceBoard Officer investigates and makes a reportHearing scheduled – held if there are any objections to reportIf no objections: Chair reviews report Any changes made by Chair if there is an objection to the change:Application for reconsiderationCan apply for judicial reviewStep 3: Vote S. 58(1) majority vote of e/eesBoard deems who is an e/eeStep 4: CertificationCertification Requirements s. 34(1)Board Officer will investigate to determine whether:a. Applicant is trade unionb. Application is timelyc. Appropriate unitd. E/ees in unit voted w/ 40% supportSupport is not a result of e/er interference in process: Union e/er dominated, picketing @ workplace etc.1. Applicant is trade union an organization of employees that has a written constitution, rules or bylaws and has as one of its objects the regulation of relations between employers and employees 2. Application is TimelyRationale for Timeliness LimitationsProtect union from being raided at certain vulnerable times Protect employer from “repeat attacks” Limit raids to certain timeframes so that unions can focus on their main objectives and aren’t always on “defensive” Gives the parties “breathing room” during bargainingGives employer “recovery period” after unsuccessful application No application for certification shall be made without Board consent: Until 60 days after submission of union documentationDuring strike or lockout in effectManalta Coal – E/ee application to revoke certification during a strikeBoard refused revocation w/out good evidence that majority want to revokeAlso requires evidence of NO undue pressureCertification application periods (37)No CA or No certification – certification can be made at any time (general rule) Certification but no CA: can apply 10 months from certification date (“grace period” to reach CA) Court reviewed and did not quash certification: can apply 10 months after court decision if CA for 2 years or less is in force, certification application can be made only during 2 months preceding end of the CA2 + year CA in force: application can be made within 11th or 12th month of the second or subsequent year BUT more than 10 months before the end within 2 months immediately prior to the end of the term (regardless of how long the CA is)Additional Timeliness Considerations Refusal or Withdraw 57Can’t reapply for 90 days after: board refusal OR withdraw of applicationto prevent repetitive certification applications that have little chance of success protects both employers and unions, in context of “raid” Revocation 54(2)(c)If certification has been revoked through decertification vote THAT Union cannot apply for certification over same or substantially same unit with same employer until at least 6 months have passed Repeat applicationsSteelworkers v. Handleman 1988 AB LRBR United Steelworkers (Local 6034) applied for certification and the Board refused to certify it. One month later, a second local (Local 7226) applied for certification of same group of employees Employer argued that Board’s consent was necessary under s. 57 as 90-day period had not yet expired since first unsuccessful application Held: for unionLocals were separate legal entities (Fulowka – separate legal entity) Time limit on certification applications applies to applications by the same unionAbsent “mischief” applications by different locals of same union not subject to 90-day prohibition 3. Appropriate Bargaining UnitA bargaining unit: group of e/ees who can be grouped together for collective bargaining does not mean “the most” appropriate or “the ideal” bargaining unitThe Officer determines whether the unit is appropriateOfficer considers: what makes labour relations sense?Board determines who are/are not e/ee AND if they fall under unitGoals of determining appropriate bargaining unit:Encourage collective bargaining and industry stability Create viable, harmonious bargaining relationshipsFactors to Consider Community of Interest Bargaining History Nature of Employer’s OrganizationViable Bargaining StructuresAvoidance of Fragmentation Agreement of the Parties 1. Community of Interest Common skills, working conditions, workWork together/close functional relationship Similar goals in collective bargainingFavours multiple smaller unitsprimarily useful in identifying conflict of interest within bargaining unit and identifying groups who have been arbitrarily excluded2. Bargaining History Only applicable if history of collective bargaining with employerDoes employer already bargain with several bargaining agents Viability of particular collective bargaining structure in the pastBoard reluctant to create “carves out” unless compelling labour relations reasons Ex. they would otherwise go unrepresentedPre-existing bargaining unit preferred if incumbent union 3. Nature of Employer’s Organization Conducive to inclusion:High degree of integration and interdependence Mobility between departments/locationsSimilarities in practicesoperational structure factors:Physical and administrative structureFunctional integrationGeography4. Viable Bargaining StructureGoal: equalizing power balance – bigger = strongerPreference for larger bargaining units Tend to promote more effective bargaining and representation Subject to the limiting factor of community of interest5. Avoidance of Fragmentation Administering multiple units: administrative and financial costs are higherConcerns re multiple strikes “leapfrog” negotiations may promote industrial instability 6. Agreement of the Parties Board will give this agreement some weight Not determinativeBoard Policies 1. Full-time & Part-time Employees are not seperatedReasons: status of employees changesEasy to separate provisions in a collective agreement 2. Avoid Tag-Endssmall portions of workforce that would remain unorganized This is a competing policy that must be weighed against community of interest 3. All e/ee units:Will be considered appropriate unless there is insufficient community of interest 4. Industrial PlantsUsually exclude office, clerical and quality control e/ees from “production” unit.Only include if union can demonstrate support with both 4. Public-sector units: Public Service E/ee Relations Act: Alberta e/ees of the Crown form a single unit5. Sector-Specific Considerations:Retail (preference for multiple locations)Security guards (preference for excluding from other units)ManufacturingMedical & Health LaboratoriesMining, etc.Statute created units: often the case for public sector bargaining units Fire: only one union per e/er. Includes mechanics and tradespersonsEducation: separate teachers and non teachers (admin and non certified teachers)Office, clerical and sales: usually separatedUnits are usually regionalMacKenzie Catering 1997 AB LRBRFacts:Employer operated 22 camps providing meals and housekeeping servicesIts Solv-Ex Camp outside of Ft. McMurray was the largest (27 e/ees)The Union applied for a bargaining unit for only Solv Ex Employer argued for an employee-wide unit Basis: same tasks and regular relocations (evidence didn’t support)1. Community of InterestBoard considers do the e/ees IN the unit have common interestsThis factor is not meant to be expansive (don’t include outside parties)2. History of Bargaining (n/a)3. FragmentationBoard prefers larger units, but assess each application on its ownSmaller unit appropriate in some cases, particularly where employees otherwise denied access to bargainingNature of Employer’s OrganizationLimited IntegrationDifficulties Organizing (added factor)Union had difficulty organizing sitesNo other units certified for this employerNot much evidence of difficulty in industry generallyAgreement of Parties (n/a)Desires of Employees (added factor)Viable Bargaining StructureLarge enough unit to be viableDescription of geographic limitations sufficient to indicate who was in the bargaining unitHeld: Solv-Ex camp of 27 employees was an appropriate bargaining unit It was unique enough to narrow its community of interestDifferent (i.e. more) positionsMore employeesSeparate management structure Southland Transportation Ltd. Employer operated school bus service in Calgary and surrounding areaTeamsters Local 362 applied to become bargaining agent for unit of employees described as:All school bus drivers working out of Cochrane, AB branch (216 Griffin Road) except dispatcher, office clerical, supervisors, and those aboveOfficer amended the description of the bargaining unit to read:All employees working out of CochraneOfficer included additional e/ee: dispatch, mechanics and commuter drivers (union objected) E/er objections: defining unit descriptor as “working out of” created uncertaintyUnit should include all e/ees: common interest, common working conditions and qualifications, interdependence of locationsSome lived out and parked out of CochraneUnion objects to inclusion of non driversBoard held:Mechanics (out) no community of interestDispatcher/drivers (in) no conflict of interestTrainer/driver (in) functionally driversCommuter drivers (out) no community of interestConsider: physical/admin structure, functional integration, geographyFunction integration of employees NOT departmentsCertainty: Working out of Cochrane: is sufficiently certain to be an appropriate bargaining unitRegardless of where the drivers parked Depot provided: dispatch instruction, emergency assistanceOperational Structure: convenience of e/er administrating one homogeneous workforce does not trump e/ee right to organize Board amended description of unit as follows:All school bus driers working out of the Cochrane depotVoting50% required - representation vote secret ballot votelocation: most convenient to encourage high turn out (usually at e/er location)Officer prepares: notice and voter list which are posted at work siteDisputed ballots: placed in sealed ballot box pending outcome of hearingIf there is a dispute re: whether a e/ee is a memberNo campaigning outside of vote siteScrutineers on both side: union/e/erWho gets to vote (non construction rules)e/ee at work on date of applicationE/ee absent on that day may vote if they have a significant continuing interest in their jobParental leave, casual illness, vacation or temporary lay off e/ee can vote30 day rule: f/t e/ee can vote if they:Worked w/in 30 days and are likely to return in 30 daysParental leaveCasual e/ees can vote if they are working on the date of application: Bosco HomesE/ee who quit or are terminated after the certification application is filed (Athabasca Northern Railway)Usually can’t vote: long term disability, extended sick leave, long term layoff or major disciplinary suspensionBosco Homes (casual e/ees voting)Casual e/ee attended a meetingUnion filed application for the date of the meetingE/er argued: gerrymandering (manipulating the election boundaries to favour party) and Board should refuse applicationHeld: Application allowed despite being close to prohibited actNot quite an unfair labour practiceBUT: certification should only be denied in “extreme cases” of vote manipulation where e/ees eligible to vote is seriously unrepresentativeAthabasca Northern RailwayE/er objected to 2 e/ees votes being counted bc they had resigned e/ment between application and voteHeld: dismissedRatio: Board will only deviate from voting rules in LIMITED CIRCUMSTANCESAdditional Bars to Certifications. 38 no certification if:Trade union is e/er dominatedPicketing of work place resulted in union membershipPolicy reason: ensure e/ees free choices. 39If all issues are satisfied and other relevant matters are addressed: certificationAny other relevant matter:Near unfair labour practice does not suffice as a relevant matter1. build up principlesBoard has additional discretion to refuse a certification application if, on date of application, the number of e/ees does not constitute a substantial and representative segment of working forceMust be a significant, actual and imminent increaseRepresentative: numbers and job functionConsider the number of increase e/ees and number of increased positions (Rocky Mountain)Noranda MinesFacts: e/er expects a 25 to 326 increase in e/eesNo evidence from union that the projected increase will NOT occurBoard held: dismissed applicationAt the time of application the employees in the proposed unit did not represent a substantial and representative segment of the workforceSCC Upheld:Small unit at commencement of operation may be more influenced by e/erMay not be choice of the majority when the work force expandsRocky Mountain SkiUnion applied for all e/ee unit: when there were only 16 e/ees of maintenance e/eesAt peak season e/ee numbers were over 200 in various rolesBoard dismissed applicationwas appropriate to apply build up principlebc a dramatic increase was imminentClassification at time of application was not representative of the kinds of classification after build up- build up principle: not appropriate for construction bc of regular fluxuationCertificate:Contains unit description and date of issueunion, e/er, board each get a copyEffects of certificationExclusivity: certification makes the union the exclusive bargaining agent for e/ees in the unite/er must negotiate with the certified unionUnit becomes party to CA s. 40(3) can terminate it by giving the e/er 2 months noticein practice they usually do give notice to terminateOption to terminate does not exist when the union certified was previously recognized as a voluntary agreement8 Voluntary RecognitionHistorically this was the only optionE/er agrees to an uncertified unionS. 42: recognizes voluntary recognition (VR)Does not require an initial vote to determine interestBut: can be overturned by board if the union does not have sufficient supports. 43(1) bargaining with VR unite/er must bargain with unit unless 6 months prior to expiry of agreement the e/er served notice to refuse bargainingDifferences:1. no obligation to bargain in good faith w/ other party (voluntary)2. e/er can terminate w/ notice (at least 6 months prior to expiry of CA)Grace period allows union chance to make certification application3. parties define scope of bargaining unit4. no exclusive bargaining rights for UnionCan negotiate w/ individual e/ees or other unions subject the rules of the CAGenerally a clause in the CA includes exclusive bargaining rightsSweetheart Deals:Risk of voluntary recognitionEnter into a CA that is worse than those a certified bargaining agent may be able to negotiateBoards can intervene by voiding a CA if a trade union is dominated by the e/erMitigation: for a CA to be valid the union must have had support of majority of e/ees at time of voluntary recognitionCertain Employees of Gateway Casinos Inc 2011 AB LRBAgreement contingent upon Union providing evidence of majority supportArbitrator investigated membership evidence and confirmed majority supportE/er entered into a voluntary recognition agreement w/ unionE/er and union did not enter into a CACertain e/ees applied for revocation Demonstrated 40% support for revocation E/ees collecting this support included security and management not a part of the unitHeld: application dismissedRevocation requires bargaining rights to revoke:Bargaining rights only arise upon s. 50(b): Certification OR voluntary recognition by entering into a CA (neither were present in this case)Ratification of CA:Required when voluntary recognitionNot required when certified but in practice usually ratifiedBenefits of voluntary recognition:Avoid formality, expense and delay of certification processParties free to define bargaining unitCommence relationship in a non-adversarial mannerProblems of voluntary recognition:Risk of sweetheart deals: unions that do not truly represent e/eesLack of formal mechanism to determine e/ee wishesLack of board oversight of process to ensure majority supportRisk of union being foisted on e/eesInfluence e/ees against other union who is attempting to certify a group of e/eesEmployee support still requiredUnion can’t conclude a CA unless it represents e/ees at time of voluntary recognitionA CA can be declared of no force or effect bc negotiations occurred when union was not representative of e/ees Support can be proven by:Majority e/ees have union membershipMajority vote to ratify CARaydon Rentals 2005 AB LRBRUnion was certified bargaining agent for group of Finning e/eesFinning owns Raydon which opened retail storesUnion stated Raydon e/ees should be included and refused to negotiate furtherFinning voluntarily recognized Union as unit for RaydonE/er required Raydon become part of the bargaining unit w/ NO VOTECA was reached and has been in force for 3 years w/ 2 years remaining. Held: no evidence of support and therefore CA is not in effectE/ees did join union but after being told they were unionized and either join or be terminatedHeld: this is not genuine expression of supportUnion acted on behalf of the e/ees since CA (3 years prior)Union argues that this shows supportHeld: support must be at time of recognition and either way this does not demonstrate support of e/eesAccepting this would encourage sweetheart dealsFundamental right: of e/ees to choose whether to be represented by a unionCan not avoid this right by having a voluntary recognitionMeans of showing majority support:No formal mechanism requiredCan show support by having e/ees ratify CAPrudent employer: must assure itself that the union has the e/ees support before voluntary recognitionUnion could have:Applied for certificationApplied for an extension of existing certificationApplied for a determination application (e/ee support would have been irrelevant)Apply for a common e/er declarationThree ways to end a voluntary recognition:1. Employer initiated s. 43(1) employers must notify union at least 6 months before expiry of collective agreement (remember: s. 43(2) allows union to apply for certification at this point regardless of timelines bars that would otherwise apply) 2. Employee initiated revocation application – reinforces concept that VRs still require employee support 3. Union initiated (raid) rival union may file certification application for VR agreement during one of s. 37 open periods (or at any time if it doesn’t believe VR has necessary employee support) 4. OR argue that there is no voluntary recognition9 Statutory Freeze Periods“Freeze” Provisions - Purpose To prohibit changes to employment conditions during certain times in a bargaining relationship During certification applicationDuring CA bargaining“freeze provisions” appear in every labour statute in Canada, but they are not identical in terms of the duration of the freeze Intended to temper an employer’s unfettered management rights which could otherwise be used to destabilize employee support for the union Freeze Periods Under the Code 147From time of applying for certification to: dismissal or 30 days after certification (certification freeze)If notice to bargain is served within 30 days of certification, a further 60 day freeze occurs while negotiations for a first agreement are underway (first agreement freeze)begins with notice to commence bargaining to renew a collective agreement and ends only with conclusion of renewal agreement, decertification or begin of strike/lockout (renewal agreement freeze) where there is an essential services agreement in effect during a strike or lockout, statutory freezes (first agreement and renew agreement freezes) continues to apply to essential service workers who continue to work during a strike or lockoutWhat’s “Frozen”“alter the rates of pay, any term or condition of employment or any right or privilege of any of those employees”Includes the Union’s rights or privilegesincludes unwritten policies and practicesemployer can still operate its business, provided it is doing so in accordance with its usual, past practices Rights of Union: United Steelworkers v AltaSteel Ltd 2014 Alta LRBR Employer had practice of including Union in safety investigationsDuring the bargaining the Employer did not include the Union in all investigationsHeld: breach of statutory freezeThree exceptions to statutory freeze rule:In accordance with the established custom or practice of the employer business as usual, business as before or reasonable expectations of employees if it’s a first changeex. layoffs if layoffs are a result of economic downturn (reasonable expectations)Consent of the bargaining agentIn accordance with a collective agreement in effect Canadian Labour Code:Only includes the exception re: consent of bargaining agentBut courts have implied the other exceptionsElements of the FreezeEmployer’s action must involve an alteration To a rate of pay, term, condition, right or privilege of employment Within applicable time periods in Code (30 days, 60 days, before renewal, strike or revocation) None of the exceptions (business as usual, consent of union, permitted by collective agreement) apply Does not require an anti-union undertoneUnion proves first three then onus shifts to e/er to show an exception existedUFCW Local 401 v European Cheesecake Factory 1992 ABUnion certified and served notice to bargain (2 freeze periods)Employer laid off 4 employees during certification campaignEmployer also made changes to several policiesHeld: unfair labour practices and breach of statutory freezePurpose of freeze: The freeze following a certification application is designed to prevent employer interference with the right to organizeThe freeze period after notice to bargain is served is designed to provide a period of relative stability during bargainingExceptionsEmployer can still respond to business demandsEmployer can still change terms if communicated to employees before freeze beganCan make changes in accordance with “business as usual”If first time event consider “reasonable expectations of the parties”Application: Amended Policies:Jewelry policy (upheld business as usual)Policy had existed for years but not enforcedEmployer courting a new customers, and those customers required strict enforcement of hygiene policies, including jewelryMedical Certificate Policy (upheld business as usual)E/er started enforcing existing medical certificate policy more vigorouslyConflicting evidence about whether absences increased or stayed the same during certification campaignPolicy as written did not changeAttendance at Company Doctor Policy (upheld business as usual)Policy was amended to name a specific doctor Previous policy required employees to report at work injuries and advised employees of medical clinics nearbyOn one occasion, employee injured at work taken to doctor named in new policyCommentary: this likely would not be decided the same by the current board Vacation Scheduling (NOT upheld)Employer unilaterally implemented 2 week vacation shut down and required employees to take vacation at that timeEmployees had previously been allowed to choose whether to take vacation during shutdownEmployer ignored special circumstances, which had previously been consideredImplemented a 2 week “spread” between vacations, instead of 1Refused to consider requests for extended vacationsWork Scheduling (upheld)Union obtained notices to attend for a number of employees to participate in hearingE/er told employees hours of work would change because of Board hearingsIt is not a breach for the employer to reschedule hours of work to maintain production levelsIt is a small plant and the work of employees is closely relatedRe Southam 1999 AB LRBFacts: the E/erDenied one employee a vacation request during the Christmas vacation Required that employee to begin working weekends when he had not beforeRequired other employees to work a Friday night shiftsDuring certification freeze, w/ no consent and no CAHeld: Employer limited by statutory freeze provisions (cease and desist)Change to vacation and work scheduling falls within the purview of the statutory freeze provisionsIssue: Is the change “business as usual”Vacation Scheduling (upheld as it didn’t constitute a change)Employer used same practice as previous 2 yearsEmployee had participated in those 2 yearsWeekend scheduling (NOT upheld)No evidence of legitimate business need AND no historySignificant departure from reasonable expectation of the partiesFriday Night Shift (NOT upheld)1994 to 1998 no changeJunior e/ees complained about working Friday nightnot legitimate business reason for changenot a new complaint so no new need for change in NovemberIUOE Local 955 v Teamco Construction Services 1998 AB LRBUnion applied for certificationE/er lost e/ees and had difficulty recruiting so they increased wages Union vote tied therefore application for certification denied (requires majority)Union requested a remedy of another voteIssue: did e/er breach of the statutory freeze by increasing wages (NO)Was raise was an established custom or practiceBoth business as usual and reasonable expectations test metjurisprudence about “reasonable expectations approach”Incorporates “practice” of employer in managing its operation”“The standard is an objective one: what would a reasonable employee expect to constitute his or her privileges … in the specific circumstances of that employer.”Statutory freeze does not prevent employer from raising wages to recruit staffConsider: market needs and e/er historical practice of increasing wages to recruitHeld: it is w/in the reasonable expectations of the partiesE/ee knew of difficulties hiring and would have quit if wages not increasedUFCW v Wal-Mart 2014 SCCUFCW became certified bargaining agent for employees at Wal-Mart Bargaining was unsuccessful and Union had applied for binding arbitration (not available in AB)Wal-Mart closed the store and terminated e/ees (despite performing well)Held: breach of the statutory freeze - change to the conditions of employment Purposes of statutory freeze in first certification contextNot merely to maintain status quoFacilitate certificationEnsure negotiation of collective agreement in good faithFreeze limits primary means available to e/ers to influence e/ees’ choicesAnti union conduct does not need to be shownTest:1. Condition of e/ment existed on day the application was filed or CA expired2. Change w/out Union consent3. Change was during prohibited periodUnion must show that the change is inconsistent w/ normal managementNormal management policy:Consistent w/ past management practices ORConsistent w/ decision of a reasonable manager in the circumstancesAction would have been taken by the e/er despite the certification processRemedy: Sent back to the arbitrator to decideCannot order re-opening of the storeDissent: does not apply to business closure. Law allows closure for any reason.Should have pursued claim through other section of Code which requires the Union showed the e/er acted with anti-union intentChanges in Accordance with AgreementUFCW Local 401 v Westfair Foods 2009 AB LRBR Employer raised wages of meat cutters during collective bargainingArgue they weren’t competitiveCA stated established minimum wage tableEmployer argued that change was consistent with collective agreementBoard says that CA must unambiguously permit employer’s actionsCan be express or impliedHeld: language of Act is not ambiguous and e/er’s change is not permittedPolicy: best promotes purpose of statutory freeze10 Duty to Bargain in Good FaithThe common-law principles of freedom of contract are significantly qualified in the context of collective bargaining.Collective bargaining is the negotiating process between a union and employer for the purpose of arriving at a collective agreement. The Code defines collective agreement as “an agreement in writing” between the employer and the union that contains the terms and conditions of employment.Beginning the process (59)No agreement in place: either party serves notice to commence bargainingAgreement in place: either party can serve noticeAt least 60 days but no more than 120 days before expiry of CACA can lengthen this time frame for notice BUT can not shorten itRequirements for Notice to Bargain (61) not examinableMust include name and addresses of persons resident in Alberta who have authority to bargain collectively, as well as conclude and sign an agreementResponse must include same information from other party Parties must list other members of bargaining committee Must include one person from e/ers or trade union locals All changes to bargaining committee must be given forthwith in writing Parties must advise the other of any ratification procedure and any changes in it Union: memorandum given to members to vote onE/er: memorandum given to board to vote onFailure to advise would be an unfair labour practiceCommencement of BargainingOnce notice served w/in 30 days must:Meet and commence bargainingMake every reasonable effort to enter into a CAExchange of Proposalsshall exchange bargaining proposals within 15 days after the first time they meet or within any longer time agreed on by the parties.Subjective & Objective Duty (s. 60)Subjective – bargaining in good faith (intention to conclude collective agreement)Objective – make every reasonable effort to enter into collective agreementA breach of either one of these duties will be a breach of the statutory requirements.Royal Oak Lines (1996) (SCC)The duty to meet is a subjective duty (intention)The duty to use every effort to enter into CA is an objective duty (reasonable person)Good rationales for positions are required Must be reasonable disclosure of supporting information to the other side Temporal Scope of DutyThe duty to bargain in good faith commences upon service of the notice to bargain and continues until an agreement is reached, the union bargaining rights are terminated (decertification) or some other end to the dispute under law. Obligation continues through a legal strike and lockout.Statutory freeze also still in effectDuty to Bargain in Good FaithThis is one of the most critical issues in labor law.Freedom of contract VS public policy of avoiding industrial conflictStatutorily imposed (no common law duty to bargain in good faith)Purposes of Dutyto foster recognition of the bargaining agentto foster rational discussion and reasonable efforts these 2 purposes align with the subjective and object of duty to bargain in good faith.(DeVilbiss – ON LRB accepted by AB Board)Vocabulary Surface bargaining – superficial attempts w/ no real intent to conclude an agreement.Receding horizon one party reneges on its previous position where the party continues to move the target so that an agreement is never actually reached ORintroducing new proposals at a late stage of the bargaining.Hard bargaining - a party using its economic power to attempt to negotiated agreements that accords with the best interests of that party, and taking an aggressive bargaining posture on terms of substanceNot a breach of duty to bargain in good faithBargaining to impasse - bargaining an issue without conceding until the point of industrial conflictNot a breach of duty to bargain in good faithRemedy Issue a directive to meet and make reasonable effortMay prescribe bargaining conditions Canadian Code – can appoint an arbitratorGCIU v Southam Inc.Facts: 2 newly certified unions that were engaging in bargaining simultaneouslyE/er believes that the unions are working in concertThe employer did not like this, and engaged in various delay tactics.both unions went on strike at the same time.Issues:whether it is bad faith for an e/er to refuse to include certain items in a CA (NO)whether it is bad faith for e/er to bargain a RAND formula clause to impasseReasonableness explanation provided to support the employer’s positionswhether it is bad faith for an e/er to refuse to include certain items in a CA (NO)union claimed e/er surface bargainingBoard won’t mandate a particular end result:Board is concerned with process NOT resultTactics: power bargaining, use of economic strength are permittedFairness of the CA is not the board’s concernObjectives of the duty to bargain in good faith:Recognition of the trade union as the exclusive bargaining agentFull and rational discussion of the issuesSerious efforts to reach a collective agreement as the end resultProcess of collective bargaining must respect these objectivesPrinciples flow from objectives:Must provide solicited disclosure of the information necessary provide a response;Must provide unsolicited disclosure of decisions that have significant impact on bargaining unitMust not deliberately misrepresent material factsMust thoroughly explore positions and engage in full rational discussionMust not dictate representatives of the other partyMust not engage in surface bargainingCannot bargain to impasse illegal or improper demandsFactors that can infer lack bargaining in good faithhistory of unfair labour practicesProposals w/ no justificationProposals so unreasonable that they must be rejectedRefusal to include standard industry clausesContents of negotiationsBoards are reluctant to dictate the subject matter of negotiationsNo rules re: content of bargaining or CAWill not allow illegal or improper CA does not have to cover all aspects of work relationshipHeld: No failure to bargain in good faith by maintaining its position that certain terms would not be included in a collective agreement.2. whether it is bad faith for e/er to bargain a RAND formula clause to impasseRAND: e/ee must pay dues but do not have to become a memberDepends on circumstancesE/er did not give reasons for requiring RANDHeld: employer breached its objective duty to bargain in good faith when it failed to make reasonable efforts to reach a collective agreement.The employer persistently failed to engage in timely, informative and rational discussion.Slow responses to request for information (10 months)Detailed justification of positions likely required in first collective agreement, attempts at major changes OR attempts to stray from industry standardsRemedy: E/er must bargain in good faith and make reasonable effortsImposed bargaining scheduleRequired e/er to provide written proposal on outstanding issues w/ justificationsUFCW v Gainers Negotiations break down – strike and lock out occurE/er tabled first proposal 2 weeks after strike startedE/er applies to wind up e/ees pension planUnion was not advised until hearing w/ Boardbasic propositions (DeVilbiss)E/er can’t enter negotiations w/ intent to get rid of union E/er can’t enter negotiations w/no intent to form a CAVoluntarism is key: parties must agree on termsParties must make reasonable efforts Public interest considerationsSeveral aspects of the duty to bargain in good faithThe obligation to disclose pertinent information requested by trade unionParty can’t withhold relevant info w/out reasonable groundsRefusal to provide info to allow union to appraise proposal is bad faithAvoid misrepresentationUndermines framework for collective bargainingDuty to disclose is a positive obligationUnion does not have to request information that will have a significant impact on e/eesOnly applies if the decision has been made (not if it is just being considered)Strikes/LockoutsShould not occur unless proposals have been put forward and discussedHeld: E/er breached obligation to bargain in good faith by failing to disclose pension wind up Misrepresentation: e/er’s proposal did not disclose pension wind upEdmonton City During bargaining the employer made a decision to engage in a significant restructuring: classifications, wage changes, lay offs (200 e/ees or 10% affected)Employer told union about reorganization but not details shortly before telling e/eesUnion learned of details at same time as employeesUnion alleged breach good faith bc the e/er had not disclosed this earlierDefacto vs Formal decision:Issue: is awaiting formal decision requiredAre all the details determinedIs there a reasonable likelihood that final approval will be grantedIf approval is just a formality then it may be a defacto decisionHeld: E/er did not bargain in good faithRemedy: Order to bargain in good faith and make full disclosure about reorganizationReorganization not unwoundAUPE v. VS Services “me too” agreement = Smaller e/er agrees to terms that a larger e/er in the same industry usesAfter Master Agreement finalized e/er attempted to introduce new proposals that: Changed agreed to items;Reopened issues that had previously been withdrawn; andWere entirely new itemsHeld: 1 and 2 are breaches of duty to bargain in good faithObjective failure to make reasonable efforts to attempt to make a CAExamples of Bad Faith BargainingRefusing to meet, provide info, follow through on promisesMisrepresentationsFailing to prepare, commit time, meet frequently or long enoughThreatening contracting out and layoffs w/out genuine intentthreatening contracting out and layoffs without genuine intention to do soInflammatory proposals or sudden changes w/ no justification11. Unfair Labour Practices Often during certification and collective bargaining process when parties are particularly vulnerableEmployer ULPs Breaching Duty to Bargain in Good Faith: s. 60Altering terms of employment during “statutory freeze”: s. 147 Interfering with formation or administration of trade union, or the representation of employees by trade union: s. 148Discriminating against, coercing, etc. employees for trade union activity: s. 149Dispute Related Misconduct – s. 154Union/Employee ULPs Breaching Duty to Bargain in Good Faith: s. 60Prohibited practices by trade union: ss. 151-152Union’s Duty of Fair Representation – s. 153 (really a ULP?)Open to e/ee to claim union failed duty to e/eeAlso Dispute Related Misconduct – s. 154TimelinesEmployer, employee, trade union, or other interested person may make a complaint in writing to the Board that there has been or is a failure to comply with any provision of this Act The Board may refuse to accept any complaint that is made more than 90 days after the complainant knew, or ought to have known, of the action or circumstances giving rise to the complaint. E/ers prohibited activities: 1481. participating in or interfering with the formation or administration of a trade union 2. participating in or interfering with representation of employees by trade union 3. contributing financial or other support to a trade union Participating: Policy rationale: prevent employer domination of the union. Unions must have separate and distinct identity from management in order to avoid conflicts of interest in collective bargaining Interference: Policy rationale: employees should be free to choose whether to be represented by a union in the absence of intimidation or other tactics by employer E/er can’t use TIP: threat, intimidation and promisesFinancial or other support: Policy rationale: employer cannot use its economic power to interfere with trade union formation or representation to facilitate representation by its preferred union E/er permitted activityDonations to union for welfare of members of trade union/dependents Allow: union business during work hours, on work property, using work transportationExpressing employer’s views as long as they do not use coercion, intimidation, threats, promises or undue influence Suspending or discharging for just causeCan dismiss, suspend, transfer or lay off IF proper or sufficient causeOnly if there is NO anti union animusWho May Commit ULPs?employer or “someone acting on behalf of an employer”May be a member of management, a supervisor, or a third partyUnfounded employee perception that person is “close to” management is not enough E/er can not (149)Discriminate against union participants or e/ees who engage rights under codeCan’t impose working conditions that restrict rights under CodeEmployers/those acting on their behalf shalt not: Generally looking for “anti-union animus” Elements of an Employer ULPmust be by employer or someone acting on employer’s behalfemployer must have engaged in specific acts enumerated E/er acted for prohibited purpose (if there is a purposive element) Some Key PointsDismissal of lead union organizers creates rebuttable inference that dismissals are result of anti-union animus Onus of proof falls to applicant unless it raises sufficient facts to justify drawing an inference that a prohibited purpose played a part in the termination Eventual certification does not prohibit a finding of a ULPElements of a Union ULPConduct by union or person acting on its behalfConduct must be enumerated in s. 151Union acted for prohibited purpose (if there is a purposive element)Prohibited Practices by Trade Unions - ExamplesCompelling an employer to bargain if the trade union is not the bargaining agentBargaining collectively with an employer if another trade union is the bargaining agentInterfering with formation of an employer’s organizationEngaging in a certification campaign at the employer’s place of business during working hours without the employer’s consent;Coercing, intimidating, threatening, promising or unduly influencing employees to join a trade unionInternal “unfair practices” A trade union shall not expel or suspend a person from membership or deny membership in a discriminatory manner or take disciplinary action or impose a penalty on a person. Board doesn’t have jurisdiction unless union member first appeals through union’s appeal procedure Stuve Electric (No. 1)Application – Union had proof of supportCertification Vote – union did not get majority supportIssue: Union claims unfair labour practices (between application and vote)Owner committed following anti-union tacticsTold e/ees he would lay off union leadersDirected supervisor to obtain list of union e/eesAsked each e/ee if they supported the unionTold e/ee who admitted to supporting the union “find a new job”Threatened to close business if certification occurredHeld a meeting and encouraged e/ees to sign an anti union petitionUnion complained: threats to compel e/ees to cease membership, (YES)threats bc members participated in Code, (YES)interference w/ representation (YES)Free speech – argument rejected bc of threatsBalance right of free speech against freedom to select union representationCan communicate view but can’t be coercive Remedy: Union requests certification (not allowed) this was appealed on constitutional groundsStuve Electric (No. 2)Union appealed requesting certification as a remedy for ULPDenied: Board can’t cerify w/out majority supportRemedy: ordered new vote, w/ former e/ees, away from e/er premises, w/ no e/er reps in attendance; cease and desist order; notice to e/ees re: ULPEuropean Cheesecake Factory ULPs: keeping list of union supporters/non supporters; laying off suspected supporters, sending a management mole in to meetings, captive audience meetings, threats to close business if vote succeeded, CAW v. E.D.O. Canada (E/er good practice)Employer sent two letters to employees 5 days and 1 day before a certification voteLetters refuted alleged statements made by the Union Suggested employees asked the Union a number of questions 30/30 split vote – application dismissesUnion argued: letters coerced & E/er interfered w/ representation by unionIssue: whether e/ee were capable of expressing true wishes via voteBurden of proof on party alleging breachConsider objective test: an e/ee of average intelligence and fortitudeHeld: The letters were a legitimate form of employer expression:E/er can refute misstatements of Union and point out the loss of the e/ee and e/er relationshipLetters referenced job security: not extensively and no reference to closureQuestions re: dues and constitution were encouraging e/ees to inform themselvesReferences to problems the Union had with other employers were from newspapers and so in public domainAcceptable for Company to try to persuade employees of its viewsGateway Casinos v. UFCWE/er paid legal fees of e/ee who opposed union mergerBreach: interference w/ bargaining agent – indirect expression of support for opposition to unionAlso a breach to finance revocation applicationsRemedy: Can’t grant Certification (Federal and BC labour acts allow this)Westfair Foods ULP: Screening of applicants of union sympathetic applicantsRemedy: Ordered union presence at all job interviews for 12 monthsMandatory meetings for employees in presence of union to counteract employer “pre-screening” and “rigging” the workforce for 12 months Legal costs - $10,000UFCW 401 v Canada SafewayFinal offer sent to union and e/ees one day before strikeManagers: met and called e/ees to advise of offerInfo – omitted some aspects of the offerUnion complained: Timing and omissions were interference w/ union representation (yes)Breach of duty to bargain GF (no) – no evidence of no intent to come to an agreementCaptive audience meetings w/ managers were coercive (Dismissed w/out discussion)Held: E/er attempting to bargain directly w/ e/ees = interference w/ union rep.Nothing unlawful per se about placing offer before employees or making final offer on eve of strikeBut e/er must give it to union before e/ees11.2 Duty of Fair Representation “No trade union shall deny an employee or former employee who is or was in the bargaining unit the right to be fairly represented by the trade union with respect to the employee’s or former employee’s rights under the collective agreement.” 153Historical origins: differential treatment of black e/eesUnion not liable for financial loss to employee if:the union acted in good faith when representing the employee, or the loss was the result of the employee’s own conduct. Complaint process: Usually arises in context of Unions handling of a grievanceUnion has legitimate role to play in “filtering good grievances from the bad” Statute is codification of common law duty Cannot sue for breach of DFR Complaint goes to Labour Board (as per statute)Public Unions – under common law can complain to Courts Duty doesn’t apply to bargainingNo duty until there is an agreementAlways conflicting interests in bargainingHowever, this exception is only for true collective bargaining where the Union is acting on behalf of all employees, and employees have opportunity for inputVickers v Health Services Association of Alberta [1997] Alta LRBR 11Group of new e/ees being accepted into a unionOld e/ees upset w/ how they were being integrated into seniority system of CADuty applied because CA was in effect5 key principles for DFR (Gagnon SCC): The exclusive power conferred on a union to act as spokesperson for the employees in a bargaining unit entails a corresponding obligation on the unit to fairly represent all employees comprised in the unit. When the right to take a grievance to arbitration is reserved to the union (depends on CA) the employee does not have an absolute right to arbitration and the union enjoys considerable discretion Discretion must be exercised in good faith, objectively and honestly, after a thorough study of the grievance and the case, taking into account the significance of the grievance and of its consequences for the employee on the one hand and the legitimate interests of the union on the otherThe union’s decision must not be arbitrary, capricious, discriminatory or wrongful The representation by the union must be fair, genuine and not merely apparent, undertaken with integrity and competence without serious or major negligence, and without hostility towards the employee Factors for Union to consider: How critical is subject matter to employeeHow valid is the grievance (either by the language of CA or facts of case)How well has union investigated employee’s case Normal practice of Union (any agreements/understandings arrived at with employer) Interests other than e/ees:Resources involved (resources are finite) Contrary interests: Interests of other employees involved Can settle ongoing grievance in exchange for bargaining concessions (minor issues only)Limits on Union:Union cannot show “favouritism” or discriminate on basis improper motivesCannot only give “superficial” attention to potential grievance Must not be arbitraryOptionsLegal opinions a valuable tool Cost/benefit analysis Settling grievances in exchange for bargaining concessions: yes, but risky Employee Duties: Duty to cooperate with UnionFiling grievances in accordance with CAProviding info to union Protecting their own interests Minimizing losses Failure to do these things can compromise a DFR complaint RemediesDamages No more than amount payable by e/er if e/ees grievance had succeeded Generally, no aggravated/punitiveDeclaratory relief of breach of duty Cease and desist order Order that Union proceed with grievance (extend timelines in certain instances) 12 The Collective AgreementBinds: e/ees, e/er, union (128)1 year term unless specified otherwise (129)Bridging provision: continues from service of notice until:New CA, revocation, strike/lockout (130)Usually new agreement is retroactive - depends on agreement between partiesLegal Effect of CAMcGavin Toastmasters Ltd v Ainscough 1976 SCCEmployer planned to close plant In protest, employees went on strikeCollective agreement in effect prohibited strikes/lockouts (illegal strike)Employer closed plant and refused to pay severance pay on the basis that employees had repudiated employment (they quit)Employees brought action in Court for payment of severance pay according to terms of CAHeld: No individual e/ment contracts if there is a CA in placeCommon law concepts, such as fundamental breach and repudiation, do not apply in this contextimplications: constructive dismissal don’t existmust file a grievance Unlawful strike will not terminate employer/employee relationship (may have been justified in terminating the e/ees w/ cause)The Collective Agreement (most contain the following)WagesHours of work/SchedulingVacations and holiday payUnion securitySeniorityVacationsLay off and recallPromotions and job postingsBenefits and pension – usually through an 3rd party insurerDispute resolution process Grievance/arbitrations (required: if absent Act implies term)Term (Required: if absent Act implies 1 year)EnforcementArbitrationMethod of settling dispute is required or model clause is usedAppointment of arbitrator/arbitration board through mediation services (137/8)Boards include a nominee be each sideSome nominees are ineligible (Financial interest/involved previous disputes)Board PowersFiling with board (becomes a public document)can declare a C/A void if: Union is dominated by e/er OR vice versa (133)Can intervene if arbitrator’s decision is too slow (140)Arbitrator PowersCan’t alter terms of C/A (142)Power to conduct site visits, inspections, question witnessesRules of evidence do not applyParties bound by award (144)Courts:Judicial Review (145) Apply w/in 30 daysCourt order can enforce awardTypes of GrievancesIndividual: Alleges breach of agreement affecting particular employeeGroup: The same as individual grievances, but for a group of employeesPolicy: Alleges breach of CA that may not affect any particular employee yetHistorically arbitrator could not make awards re: policy grievancesGrievance Arbitration:CA usually has a process for resolving grievance before arbitrationIf the parties do not comply w/ grievance procedure then the issue may be deemed unarbitratable If unable to resolve the parties appoint a single arbitrator or panelIn AB usually heard by private arbitrationJurisdiction:Weber v Ontario Hydro 1995 SCCFacts: E/er hired PI to spy on e/ee on sick leave. E/ee suspended for abuse of sick leave.E/ee brought a tort action and claimed Charter violationIssue: whether courts have jurisdiction over matters arising from CA Three potential models of jurisdictionConcurrent jurisdictionRegardless of whether matter arises from employment relationship, both courts and arbitrators have jurisdiction concurrentlyOverlapping jurisdictionIf issues go beyond the traditional scope of labour law, part of the dispute can be brought before a labour arbitrator and part before a CourtExclusive jurisdiction (ACCEPTED APPROACH)If the facts of the dispute in their essential character arise from the interpretation, application, operation, or violation of the collective agreement, labour arbitrator have exclusive jurisdictionMajority: only exclusive jurisdiction model is consistent with labour relations legislationDetermining essential character - interpretation, application, administration, or violation of the collective agreement look at 2 things:Factual nature of disputeThe terms of the Collective AgreementAnalysis of facts of Weber:CA terms were very broad: Employer prohibited from “unfair treatment”Held: Dispute in its essential character arose from interpretation, application, operation, or violation of CACourt action dismissedSCC also dismissed Charter application on the basis that labour arbitrators have jurisdiction to provide Charter remediesAB: statute allows arbitrators to decide Charter applicationsOwens v Parry Sound 2003 SCCProbationary e/ee terminated upon return from maternity leaveCA allowed employer sole discretion to terminate probationary employees w/ no grievance processIssue: whether the arbitrator could apply human rights and employment legislationHeld: human rights and employment standards legislation forms part of all collective agreements and arbitrators have jurisdiction to apply such statutesFollows concurrent jurisdiction modelE/ee can make a complaint either to human rights commission or arbitratorCommission may decline jurisdiction to arbitratorAnything e/ment related can be dealt w/ by the arbitrator: OHS, WCB?Nor-Man Regional Health v MAHCP 2011 SCCE/er general practice to not count time as “casual e/ee” toward service for determining vacation level provided by CAArbitrator held: CA granted casual e/ees vacations rights BUT union estopped from relying on strict language of CAEstoppel bc: e/er had been operating in this manner for some time and union had not objectedStandard of review for arbitrations is reasonableness except for questions of general importance to the legal system of Canada or true questions of jurisdictionIssue of estoppel not of general importance to CanadaLabour arbitrators competent and given broad mandates to apply legal/equitable principlesContinuing e/ment relations requires arbitration sensitive to parties interestsApplication: Arbitrator’s decision was reasonableArbitrator’s reasons were intelligible, transparent, and coherentArbitrator not required to apply legal test for estoppel in the same manner as courtsArbitrator must apply estoppel in a manner consistent with labour relations legislation, the principles of labour relations, the nature of the collective bargaining process, and the particular grievanceManagement’s Rightsclause reserving all rights to manage business except as limited by the agreementIf not explicit in CA they are often impliedExercise of management’s rights have been regulated by arbitrators WM Scott & Company v CFAW 1977 Can LRBRFacts:E/ee made negative comments re: e/er to media and was terminatedMajority of Arbitration board held: intentional defamation and upheld terminationUnion appealed to BC Labour Relations BoardIssue: Application of new legislation that allows Board to substitute forms of disciplineCommon law concepts of termination do not apply when there is a CAEmployer can’t unilaterally terminate the employee with notice or pay in lieu thereofBC Legislation overrules SCC decision in Port Arthur Shipbuilding that says that if the employee had given some cause for discipline arbitrators have no jurisdiction to overturn employer’s decision on discipline imposedArbitrators have power to substitute another form of disciplineIssues in discharge grievance:Has the employee given just and reasonable cause for some form of disciplineWas the employer’s decision to dismiss the employee excessiveIf discharge was excessive, what alternative should be substitutedFactors to consider to determine whether discharge appropriate:Seriousness of the offencePremeditated or momentary lapse of judgmentEmployee’s length of serviceDisciplinary historyConsistency of disciplineOthers added by subsequent case law: economic hardship, provocation, remorseLumber and Sawmill Workers’ Union v KVP 1965 Employer unilaterally introduced policy that if an employee had more than one garnishee summons the employee would be terminatedThe grievor, an eight year employee with an unblemished record, was terminated after he received three garnishee summonsLawIf a rule is negotiated between the parties, arbitration boards will enforce itIf a rule is unilaterally imposed by the employer, arbitrators will only enforce it in certain circumstancesThe presence or lack thereof of a management rights’ clause does not affect thisUnilaterally imposed rules must meet ALL the following criteriaRule must:Not be inconsistent with the collective agreementNot unreasonableBe clear and unequivocalBe brought to the attention of the employeeThe employee must be notified of the consequences of the breach of the ruleThe rule must have been consistently enforcedIssue: Whether rule was reasonable and consistent with the CAThe rule must be considered as written not as employer may apply itThe rule was not reasonable Very little impact on operations of employerImposed very serious penaltyThe rule was not consistent with recognized reasons for terminating employeesThe rule was also inconsistent with the Collective AgreementAgreement contained seniority clause that made promotion, protection from lay off, etc. based on senioritySeniority could only be lost in limited situations, including if the employee was discharged for just causeA rule that provides for termination for a minor offence is not consistent with seniority clause13 Resolving Bargaining Disputes without Strike/Lockout?Alternative Dispute Resolutions MethodsMediation (required)Proposal/Recommendation VotesInterest ArbitrationDisputes Inquiry BoardPublic Emergency Tribunal?1. Mediation After notice to commence bargaining has been served either party or the Minister may request the Director of Mediation Services to appoint a mediatorCan be informal (s. 64) or formal (s. 65)Informal:? does not affect any steps towards strike/lockoutFormal: required step before strike/lockoutCan occur before the parties have even metEssential Services, Director may only appoint a mediator if there is a filed essential services agreement, an exemption, a compulsory arbitration declaration, or consentRoster online, one selected from that listFirst 2 days are paid for by the government; beyond that, parties are responsibleRole of mediator:-???mediator shall inquire into dispute and attempt to affect a settlement?65(3)After 14 days w/ no settlement mediator will usually either (a) recommend terms or (b) “book out” Recommendations usually only come when parties are really close-?????Parties can accept terms within time limit set by mediator (s. 66)If one side accepts and the other does not, the one accepting can request a vote by the other party14 day “cooling off” period after one of the following:The mediator books outThe date the mediator sets for acceptance or rejection of recommended termsThe date on which parties are notified of the results of the vote on the termsCan’t strike/lockout?2. Proposal Votes Can be a vote on most recent offer (s. 69) or the mediator’s recommendations (s. 68)Offer, if accepted, must be clear and capable of forming CA (s. 69(2))Each party may apply to Board only once during each dispute for a vote (s. 69(3))Can apply for a second vote on mediator’s recommendations?3. Interest ArbitrationThis is “interest arbitration” vs “rights arbitration” (e.g. grievances)Voluntary Interest Arbitration (Div 15)Parties may voluntarily agree to appoint of single arbitrator or 3 person arbitration If arbitrator is not able to effect a settlement, will make an award/decision that sets terms of new agreementRare: parties rarely go to arbitration voluntarily bc they loose control of the processCompulsory Interest Arbitration (Div 16)Only applies to Fire/Ambulance and other Hospital e/ees in certain circumstancesProhibited from effecting certain terms4. Disputes Inquiry Boards (Div 17)Can be appointed by Minister of LabourUsually only used when a strike will have a significant impact on the economySimilar to mediation20 days to resolve If no resolution the board makes recommendations which MUST BE voted on5. Public Emergency Tribunal (Div 18)Lieutenant Governor in Council can make orders if dispute between parties threatens health or propertyCan dictate process and or terms of agreement?14 Strikes & Lockouts OverviewRequirements for legal strike and lockoutWhat is a “strike”What is a “lockout”Illegal strikes and lockouts & penalties Prohibition on Strikes/Lockouts (71/72)No strikes or lockouts, or threats of a strike or lockout unless permitted under the Labour Relations CodeWords can be a strike ex. threats to not work over timeRequirements for Lawful Strike/LockoutMUST occur BEFORE a legal strike or lockout: 1. no CA in force (except s. 130 – bridging provision for expired CA)2. strike/lockout vote must be held, and results must be current 3. strike/lockout notice must be given 4. strike/lockout must commence in accordance with notice 5. Dispute Inquiry Boards – time limits in s. 105(3) must have expired 10 days after Minister serves copy of recommendation on parties, or 72 hours after results of vote on recommendations of DIB are released Must give the DIB process finishGenerally lockout provisions “mirror” the strike provisions S. 73 for strikes, s. 74 for lockoutsStrike Vote Must be current w/in 120 daysMust be filed w/ LRBMust have MAJORITY in favour of strike 1. When can a strike vote take place (75)on application to the BoardNot until: No CA in force subject to s. 130 (bridging CA)A mediator has been appointed s. 65“cooling has expired [14 days] But less than two years has passed since its CA expiry Mediation s. 65Mediator can be requested by either part of the MinisterIf after 14 days w/ no agreement:From date of appointmentDate parties notified of s. 69 vote (last offer vote)Or longer period agreed by parties, fixed by directorMediator can recommend terms or “book out”/no recommendationsMediation: Cooling off period 65(7) 14 days from latest:Notification of refusal to make recommendationsDate for acceptance/rejection of recommendationsIf vote recommended then date parties notified of vote results2. Voting Rules Union can apply to LRB for supervision of strike vote (75)Rule 24: Unions must apply for strike votes at least 7 calendar days before planned voting date; single employers, polled as soon as possible after application14 days for employer’s organizations. Can apply for a vote during cooling off period, but proposed date has to fall after expiry of 14 days Director of Settlement may reduce the 7 & 14-day requirements w/ consent or board approvalWhen is a strike vote “current”? Strike vote void after 120 days (77)No vote allowed after 2 years of cooling off period – dispute no longer existsWho is eligible to vote in a strike vote? Majority of those who voteemployees affected by the dispute can vote: 76(3) employed at any time during 60 days preceding the strike vote3. Strike Notice Must Be Given Pursuant to the Code (73(c), 78, 79, 80)Personal service on employer giving at least 72 hours of notice of the: DateTime Initial location at which strike will commence Must also serve notice on the mediator (72 hour rule doesn’t apply)Modifications to notice: parties can agree to amend, but must notify mediator of amendments (79)4. Strike Must Commence in Accordance with Notice If strike doesn’t occur as per notice then notice becomes ineffective and new notice must be served 5. Dispute Inquiry Board DIB (105(3))no strike or lockout shall commence until 10 days after Minister serves copy of recommendations or notification of results of DIB vote on parties (73(3))DIB doesn’t affect existing legal strike or lockout. Definition of Strike:Cessation, refusal or refusal to continue to workby 2 or more employees acting in combination or in concert or in accordance with a common understanding for the purpose of compelling their employer or an employers’ organization to agree to terms or conditions of employment or to aid other employees to compel their employer to accept terms or conditions of employmentElements of a strikeRefused work – (cessation of work, refusal to work, refusal to continue to work) Concerted action – 2 or more employees acting in concert or in accordance with common understanding Purposive/subjective – actions must be for purpose of compelling employer to agree to certain terms or conditions of employment (or to aid other employees in doing so) - BARGAINING PURPOSEHSAA v VS ServicesFacts: notice served, walked off job, e/ees returned to work but refused over timeE/er argued OT ban was an illegal strike and applied for cease and desist orderEmployer argued that new strike notice was required under s. 78 as there had been a change in strike activity which amounted to two strikes Definition of strike: “Strike” has a broad definition, includes reduction of output, and other activities that involve less than a total withdrawal of services. A strike can include any situation where employees deliberately do not work in the way they have agreed. Includes intermittent activity too – no requirement in Code that strike be continuous, Requirements of valid strike notice:Purpose of notice requirement includeServes as a warning to employers and third partiesCreates pressure during which negotiations intensify Gives mediators and government the opportunity to get involved Union or E/er determine what type of strike activity they will engage inCode “will commence” notice is to be at the start of the action DOES NOT need to indicate progression of action Employers who find uncertainty intolerable may lockout. Ratio: A strike includes withdrawal of services that would normally be provided- includes overtime banRatio: Strike activity can change or be intermittent and NOT require new noticeMcGavin Foods Ltd. Reconsideration of Board’s “cease and desist” order which was issued to stop an illegal strikeBoard’s reconsideration power 12(4)Facts:The bakers (represented by one union) were on a legal strikeThe drivers (represented by another union) refused to cross the bakery employees’ picket line. The CA contained a provision stating that “the Company shall not require any employee who is a member of the union to cross any lawful picket line.” The employer’s position: these employees are engaging in an unlawful strikeThe union’s position: these employees are acting in accordance with the CAThe union filed a grievance and also sought reconsideration of the Board’s decision Board considered 3 issues: 1. Is this a strike? 2. If so, does the Board have discretion to decline to issue a cease and desist order in light of the CA3. Is Article 20.03 of the Collective Agreement, which states that the company shall not require any employee who is a member of the Union to cross any lawful picket line valid in lawIssue 1. Is this a strike: what is “work” “work” for purposes of this definition = work that is that which the employee would ordinarily be expected to do HOWEVER, Employees do not strike illegally when the work they are refusing to do is that which they can legally refuse to do (i.e. unsafe work) Definition does not depend on CA2. Concerted Activity Specific evidence of concerted action is often very difficult to obtain. Once it is established that employees have refused to work when work is scheduled, there is an onus on employees to come forward with a credible and convincing explanation for their conduct. Where no explanation, or where not credible, then Board will draw inference that employees have acted in concert, and therefore illegally.3. Purpose/Intent purpose of compelling employer to agree to terms or conditions of employment, or to aid other employees in so doing.Not essential for employer to call evidence about state of mind of absent/refusing employees: prohibitively difficult to do this Usually a reasonable inference of intent can be drawn in the circumstances which results in shifting of evidentiary burden to union to proffer evidence that rebuts the inference. Must consider other issues: ex. personal safety of crossingContractual ClausesParties cannot contract out of the “No Strike” provision of the CodeThese provisions have no effect on the legality of a strike, but may provide employees or union with defence to disciplinary sanctions and damages claims May affect rights of the parties vis-à-vis one another, but will not render an illegal strike legal Should the clause be void? (NO)Capable of multiple interpretations – not clear its purpose was to circumvent statute “work now, grieve later” principle – hallmark of labour law Arbitration is the method of resolving disputes about interpretation and application of collective agreement and its provisions – given multiple possible interpretations, most appropriate for arbitration board to determine meaningDefinition of LockoutClosing of place of employment by an employer;Suspension of work by an employer; Refusal by an employer to continue to employ employees; For purpose of compelling employees to agree to terms/conditions of employment Lockout – ends CA Western Archrib Facts: E/er purported to lock out e/ees by imposing new work terms upon threat of disciplineTerms of the lockout: not a shutdown Implementing terms and conditions of employment worst than those in offer with threats of discipline:No process to grieve to arbitration, Wage increase 2%, Changes to seniority re: lay offsUnion ResponseStrike vote unsucessful (likely due to employer interference) Argue: This is not a lockout so CA still in force and E/er can’t impose new termsAlternative: new terms w/ threat of discipline are a ULPHeld: This is a lock out because meets the objective and subjective elements.This is a lockout therefore e/er can impose new terms of e/mentStrikes and Lockouts are broadly definedStrikes do not have to consist of walking off the job entirely, nor do lockouts have to consist of a complete plant shut down History: 24-hour lockout in the construction industry (e/ee would loose one shift and then e/er would offer lower wage) – led to disputes Legislative definition of “strike” and “lockout” not exhaustiveElements of a lockoutObjectively, must be suspension or refusal to provide workSubjectively, purpose must be to induce agreement to terms and conditions Paccar SCC – When a CA expires the E/er can change e/ment terms - this is by itself a lockout Airtex 2 – If changes to e/ment are for the purpose of ensuring production continues is not a lockout. Presumptively a lockout if done for the purpose putting pressure on e/ee to agree to terms Distinction between “act of lockout” and “state of lockout” “act of lockout” involves deprivation of work “state of lockout” – only that parties are in a dispute, they have no C/A and employer is free to implement act of lockout at any time Class: Attempts to remove arbitration – serious erosion of union powerCalgary Co-OpFacts: A CA was in place. E/er discusses w/ union re: reducing labour costsMeetings occur but no agreement E/er presented proposal to e/ee: advised if agreement not obtained Coop wold reduce hours of senior e/ees and hire new e/eesIs this a Lockout? YESSubjective and objective componentLockout: can include refusal to provide work on same terms Changes can be made if based on legitimate financial/business concernsObjective element met: threat to reduce hoursSubjective element: ultimatum to coerce acceptance of amendmentsCriticism: did not consider e/ers argument that changes were in accordance w/ CAULP: e/er presented proposal to e/ees before the union (undermines union authority)Status of Workerse/ment continues during strike (89)replacement workers can be hirede/ees entitled to resume work in preference of replacement workers (90)e/ee must make a written requestw/in 30 days of revocation/settlement ORwhen 2 years from strike startingexception: lawful termination, position no longer existsReturn to work agreements can be madeIllegal strikesSympathy strikes: illegal if pre conditions of Code not metCan’t refuse to work OR refuse to work with replacement workers Can’t refuse to handle goods “hot cargo” Court (QB) jurisdiction to intervene is limited (91)Reasonable likelihood of danger to person or property ORResort to LRB impractical (then only interim injunctions until LRB can deal w/ matter)No ex parte injunctions (must be notice) (92)Board powers – declaration and direct action (86)Directive can be filed w/ court for enforcement (88(2))Penalties: Illegal lockout: e/er max $1000/day (159)Individual who commences: $10,000Illegal strike: union max $1000/day (160)Union rep max $10,000Other e/ee max $1,00015 Picketing and Freedom of ExpressionWhat is picketingOnly BC legislation defines picketing Definition comes from common law or board decisionsPurposes:to convey information about a labor dispute in order to gain support for its cause from other workers, or clients or the general publicto put social and economic pressure on the employer, and by extension its suppliers and clients(SCC in Pepsi-Cola)Regulation of Picketing 1. Must be a legal strike/lockout in effect2. Picketing must occur at place of employmentThis is heavily modified by case law – read down and likely unconstitutionalSecondary picketing is allowed unless it is tortious or criminal (SCC)3. Picketing must not involve unlawful actions4. Picketing must be peaceful5. Picketing must be for the purposes: dissuade entry into e/er premises, deal w/ e/ers products or do business w/ e/erBoard AuthorityBoard has authority to regulate picketing (84)Anyone affected by picketing can apply to the Board to regulate picketingBoard can issue order to specify number of picketers, time and place of picketingBoard considers: directness of interest of person complaining, potential violence, right to expression of opinion, not to escalate disputeDispute Related MisconductProhibited - course of conduct (incitement, intimidation, coercion, undue influence, provocation, infiltration or any other similar course of conduct) intended to prevent, interfere with or break up lawful activities or likely to induce a breach of the peace in respect of a strike or lockout.Also prohibits use of “strike breakers” (engaging in physical altercation w/ picketers)Other Options for the Parties Picketing Protocol Consent DirectivesPrimary vs. Secondary PicketingPrimary picketing is picketing at the employee’s place of employmentSecondary picketing is picketing elsewhereSection 84 of Code specifically allows picketing at place of employmentUFCW v. K-Mart SCCDistinguished between distributing leaflets and conventional picketing.Parties agree: Prohibition of leaf letting at e/ers location infringes Charter 2(b) Freedom of Expression Issue: whether or not this restriction could be justified under section 1 of the Charter Facts: Union leaflet at non certified Kmarts Contents of leaflet: details of strike, accusation of exploitation, request boycottProcess of distribution:groups of 2 to 122 to 20 feet outside of the store entrancesNo interference w/ e/ees, deliveries, public accessNo intimidationLaw: This leafleting was captured by the broad definition of picketing contained in BC legislation, because it was an attempt to persuade customers not to enter the stores of the secondary employerFreedom of expressionPicketing - protected form of expression under the Charter (Dolphin Delivery SCC)Often used outside labour context: political, social, religious groupsPublic awareness of issues is important in labour disputesLeafleting: important for conveying information and promote dialogueFocus on: value of work in people’s lives, importance of communicationLimits on secondary picketing:The pressing and substantial objective behind the legislation was to minimize the economic harm and disruption to parties not directly involved in the dispute.Reasonable to restrain picketing so that the conflict will not escalate beyond the actual parties (Dolphin Delivery). SCC in Kmart – differentiated leafleting from conventional picketing to avoid the concern in Dolphin Delivery re: effect on 3rd partiesDistinction between conventional picketing and leafleting:Conventional picket lines act as a signal not to cross a barrier; not based on rational discoursePicketing coercive act Leafleting persuasive act – directed at public through informed and rational discourseAlthough both may result in a loss of business for the employer, picketing does by coercion and leafleting by rational persuasionLeafleting may be similar to conventional picketing if impeded access or if the leaflets were directed towards workersPurpose of the legislationNot to insulate third parties from harmful effects of work disputeMinimize harmful effects to third parties which would result from other impeding access to premisesHeld: Restriction on conventional picketing is rationally connected to objective, but restriction on leafleting is too broadThe legislation is not minimally impairingIt is not tailored to minimizing the harmful effects of others impeding access to the employer’s premises or encouraging employees to break contractsNo explanation given for why prohibition on only conventional picketing would not achieve objectivesFactors: conduct that is leafleting NOT picketing:CONTENT: must be accurate, not defamatory or otherwise unlawful and must not entice people to commit unlawful or tortious actsCLARITY: who the dispute is betweenCONDUCT: can’t be coercive, intimidating, or otherwise unlawful or tortiousLIMIT NUMBER: of people to avoid intimidation factor NO IMPEDING ACCESS: NO IMPEDING E/EES or SUPPLIERS Brewers DistributorsIssue: Whether Code permitted picketing at ally employer site Interpretation of employee’s place of employmentIssue: whether provision contravenes s. 2(b) of the CharterHeld: secondary picketing ban is contrary to Charter to the extent that it prohibits ally picketingFacts:To prep for lockout: BDL contracted w/ MTE: warehouse space, distribution servicesLockout – MTE performed bulk of distribution services for BDLUnion attempted to picket MTEMTE: sought order declaring unlawful picketing bc it was not at “place of employment”Board held: cease and desist order granted bc MTE was not place of e/mentPicketing (common law definition): Physical presence of persons at or near a targeted parcel of real propertyCommunication with persons passing, entering, or leaving the propertyWith information about a dispute, andMaking an express or implied appeal for support in the disputeThe ally doctrine:Exception to the general legislative prohibitions against secondary picketing.Other employers who intentionally and materially assist the struck employer in resisting a strike or prosecuting the lockout of its employees. The ally doctrine identifies employers who are not neutral in the primary labor dispute, but have consciously inserted themselves into the dispute as an adjunct to the employer’s economic strength.Ally employer factors: Was the work previously performed by striking employees?Was the work actually transferred to another employer?Did the primary employer received any benefit for itself?Did the employer performing the work have actual or constructive knowledge of the existence of the strike?Was there a pre-strike agreement to perform the work?Was agreement motivated by fear of an impending strike?Was the impetus for the transfer initiated or orchestrated by the primary employer?(MTE met all above factors)Interpretation: Ordinary meaning of “place of employment” includes the following:Location where e/ees normally or regularly workMobile e/ees – where they worked at beginning of disputePlace where e/ees would return to workPlace of employment does not include ally employers,BUT: place of employment is a fluid concept that includes locations other than where the employee was performing work before the dispute begans. 84 ban on labor picketing other than at the place of employment. Infringes right to freedom if expressionThe union’s right to leaflet near the MTE warehouse is not in dispute. Picketing does not include leafleting (IN AB).Purpose: The pressing and substantial objective of the geographical restriction is to prevent avoidable economic damage to neutral 3rd parties from picketing activity. Ban is rationally connected to purposeIf an employer can completely insulate itself from the economic pressure of the strike by contracting out its work to an off-site employer who cannot be picketed how is any collective settlement encouraged?The prohibition on picketing non-neutrals is overbroad. Remedy:s. 84 will be treated as having no force and effect to restrain the union from picketing at ally employers The board is limited to such a remedy and cannot make a declaration of invalidity. PepsiPrimary picketing - at the premises of the employer; Secondary picketing - at other premises. No statutory definition of picketingLegislatures sometimes limit where picketing can occur (AB)Facts: Secondary picketing (Sask has no relevant statutory provisions)retail outlets where Pepsi was delivered outside of the hotel where replacement workers were staying,outside of the homes of Pepsi’s management personnel. Pepsi obtained an injunction prohibiting the union from engaging in picketing activities at secondary locations.Picketing: It represents “a continuum of expressive activity”Always involves expressionBalanced against expressive activity is protection of third parties from undue economic harmThree possibilitiesAbsolute bar on secondary picketingAlly - Bar on secondary picketing exception for ally employersWrongful action - Permitting all secondary picketing except tortious or illegal conductPicketing should be legal, subject to limitations to protect third partiesBoth the illegal per se and ally doctrine possibilities are opposite to thisWrongful action model more flexible and rational and focuses on what is importantHeld: Distinction should not be on location but on legalityCaution: Nothing in this case affects the validity of any legislationThis case deals with the common law where no legislation has been enactedHowever, Court confirms that legislatures must act within the broad parameters of the CharterTotal protection is not the goalinnocent 3rd parties should be shielded from undue harm. undue harm is conduct that is tortious or criminal (unlawful)Protection from economic harm is an important value capable of justifying limitations on freedom of expression. Torts: Trespass, intimidation, nuisance, inducing breach of K, defamation, misrepCriminal acts: Mischief, intimidation, assault, theftApplication:Peaceful picketing outside hotel and convenience stores was not illegalAimed at discouraging people to buy PepsiThis is not intimidation because no unlawful actNo interference with contractual relations because no evidence of a contractPicketing at homes was illegal: Intimidation, private nuisanceAlberta (Information and Privacy Commissioner) v UFCWFacts: Union posted photos of people crossing Picket linesPIPA prohibited w/out consentHeld: PIPA Violated Charterread down to exclude labour relations purposes Legislature: amended PIPA to comply w/ ruling16 SuccessorshipModification of bargaining rights due to changes in employer or unionThree applications for dealing with changes in employer operationsReconsideration (12(4)) Boards general power to reconsider its own decisionsSuccessor Employer (46)Spin Off (Common Employer)Successor Union: Union can claim successorship by reason of merger, amalgamation or transfer Successorship (46)Common law: contracts only bind the parties who signed them (privity of K)Implications: organizational changes could compromise an CACode: Modifies common law prohibition on assignment of employment contracts It provides statutory protection of trade union’s right to bargain (certification rights), maintains existing collective agreement (representation rights) and continues any proceedings under the Code Three elements: 1. sale, lease, transfer or other disposition 2. of a business or part of a business3. so the control of that business passes to the purchaser “Business” is not defined: combination of physical assets and human initiativeOften referred to as a “going concern” or “functional economic vehicle’Factors for determining whether sale, transfer or disposition occurred: (none is determinative)Transfer of: Fixed assets ex. buildingGoodwill ex. trade nameLogo/trademark Customer listsAccounts receivableExisting contracts Inventory Non-compete agreements An agreement to maintain a good nameLocationBusiness know-how and reputation embodied in key personnel (IMPORTANT FACTOR)Work (in itself does not suffice to constitute successorship)Issue: whether enough significant parts of the business have passed from the predecessor to the successor to warrant a successorship declarationGoverning Bodies under s. 48Public sector bodies that are sometimes changed through legislation may affect bargaining relationship Code allows certificate to pass to successor body and continue C/As Governing body = city, town, village under Municipal Government Act; municipal district, board of trustees of school district, non-regional hospital or health authority Successorship Orders: successor employer assumes the bargaining rights and obligations of its predecessor: trade union continues as bargaining agent, and existing certificates, collective agreements and proceedings under the Code continue Board begins with assumption that bargaining unit appropriate until it is convinced otherwiseUnion mergers1. 80/20 Rule and “run off” votes: If 80% belong to one union = automatic union becomes bargaining agentApplies whether minority of employees unionized or notOtherwise representation vote needed 2. Majority non unionizedUnionized employees will cease to be governed by collective agreement: successorship preserves existing bargaining rights; it does not expand them 3. Joint certificateCompeting unions wanting to avoid vote may apply to Board to hold a joint certificate Requires a clear agreement for administering the single bargaining unitRemedysuccessor employer is bound by an existing bargaining certificate, collective agreement, and proceedingsDeclaration is effective as of the date of the disposition or mergerThis may precede the date of the applicationIAMAW Local 99 v FinningFinning needs a new component rebuild centreGM and Finning create a new centre to provide rebuild services (OEM)Finning Int owns OEM (all voting shares)Finning Canada entered into 10 year services agreement with OEM and abandons old centreUnion applied to Board for declaration that OEM was successor or common employerJudicial history:First panel found that OEM was both a successor and common employerSecond panel overturned decisionFactors:Finning is 100% beneficial owner of OEMFinning financed new plant and purchases of small re manufacturing companiesGM designed and i/c of operation of OEMVery little equipment transferedNo existing contracts were transferredNo goodwill was transferred49 out of 180 employees transferredPrinciples of successorship provisionsMischief addressed is disruption of bargaining rights from change in ownershipBargaining rights attach to business not employer, employees, or work“Contracting out” does not result in a successorshipMust determine “fundamental components” of business and see whether those exist in new employer’s operationsFundamental components will vary by industryWhether “part of business” transferred depends on whether transferred operation is a business capable of being functional economic vehicleAcquisition must be from the transferor to transfereeSecond panel: (overturned by CA)If the transferee receives functional economic vehicle from someone other than unionized business, no successorship (Finning International)All that was transferred from Finning Canada (the unionized business) to OEM was the work Transfer of work is not a functional economic vehicleAlthough OEM required capital that it acquired from Finning, it also required GM’s know-how and entrepreneurial visionSuccessor employer application dismissedCourt of AppealReconsideration panel applied unduly restrictive approachSuccessorship provisions aimed at protecting bargaining rightsSuccessorship provisions should be given broad and expansive interpretationLabour Boards must be wary of “creative” restructuring that undermine bargaining rightsCourt affirmed that test is whether transferee has acquired from transferor a functional economic vehicleConsider factors and commercial realitiesContracting outContracting out is not sufficient to establish successor employerconsider any assistance provided by the party that is contracting out the work, including capital contributions, to see if more than just work is being transferredConsider: did the recipient have capability of doing the work before the assets were transferredFinning had allowed existing equipment to become obsolete, and had option to reinvest in its own or a new facilityTransfers from third parties are also relevantReconsideration panel’s decision was patently unreasonableHeld: OEM was successor employer to Finning CanadaCourt did not address common employer application17 Common EmployersCommon Employer Declarations AKA “spin off” – s. 47 of CodeSeparate rules for Construction Industry Common employer declaration means that one or more businesses are carrying on under common control and direction and are therefore “one” employer for purposes of Code Purpose: ensure established bargaining rights not eliminated because of corporate reorganization Trade union has bargaining relationship with all employers jointly for a single unit of employeesFour statutory conditions:The Applicant is an affected employer or trade union;The activities are associated or related;There is common control or direction; andThere is more than one entity.Remedy: consider is there an attempt to avoid bargaining relationship?Discretionary: is there a valid labour relations purpose for granting such a declaration (47(1))Mandatory when anti-union animus (47(2))Expressly avoiding bargaining relationshipCan issue retroactive remedy to date of application under (2)Commonly Arise in 2 situations: Double breasting: when an employer creates a spin off company that performs the same or similar work but the new entity is non-unionized Permitted in AB w/ limitsContracting out/in: unionized employer contracts in/out a portion of its operations to a non-union subcontractor union seeks to bind the sub-contractor to its bargaining relationship by asking the Board for “common employers” declarationuncommon (union should not be able to indirectly obtain what it could not through certification) Contracting out Permitted for legitimate business reasonsFactors to consider: relationship between parties, business, roles of parties, specifics of work, equipment use/ownership, supervision, location of work, payrollPremetalco Premetalco owned factory Exchanger (unionized)Premetalco purchased Thermotech (non unionized)Prematalco expanded:initially Thermotech was a shell company but then started doing some of the same work as ExchangerExchanger expanding – hiring new e/eesUnion brought common employer applicationPremetalco argued that activities were not being carried on through two divisionsCase law:Diamond International Trucks Board found that two intra-corporate divisions could be common employers (Board questions logic of this decision)Reasons two divisions should not be common employersNot consistent with purpose of common employer applications (i.e. no need to pierce corporate veil)Not necessary because union could bring ULP complaint or application for reconsiderationCreates a paradox; two divisions either common or separate, but not bothStretches meaning of word “persons”Held: Refused to exercise discretionApplication does not seek primarily to defend bargaining rights it seeks to expand themNo evidence that contracting out was affecting bargaining rights of unionUnion did not have majority support amongst Thermotech employees (not necessarily required)Delay issue: Board refused to dismiss bc of delay bc Union had no means of knowing about type of work going on at ThermotechIAMAW Local 99 v FinningRule: Common control and directionDay to day management is primary focusHigh level strategic control is less significantCommon ownership is not determinativeNot every subsidiary is under common controlIssue: What constitutes common control and direction (does contractee control contractor)?Held: Finning is not a common e/erApplication:OEM had great deal of operational independenceCustomers Services Agreement did not provide unusual level of controlWhether Joint Venture Agreement provided Finning greater control (NO)Both parties had significant powerBoth could block votes, terminate the agreementAgreement provided Finning less control than typically exists in parent-subsidiary relationshipSigns of Finning greater control (no evidence it had or would happen therefore disregarded)Finning may have ability to exercise day-to-day control Finning could replace McLaughlan as Director Board not going to consider contingency when making common employer declarationCentral Web OffsetCentral Web (non union) bought Ed Webb (Unionized) (similar businesses)Central Web was much biggerAs a result of a variety of setbacks Ed Webb was not as profitable as hopedCentral Web decided to sell Ed Webb’s press (key asset) and closed Ed WebbAs a result of closure, the following occurred:Paper supplies transferred to Central WebInk held on consignment returnedLease for Ed Webb’s building was surrendered to landlordEd Webb name/logo was discontinued and not usedWork transferred to Central Web without interruptionReceivables taken over by Central WebSale of proceeds from printing press went to Central WebCentral hired 17 new employees (very few from Ed Web)Union brought several complaints, alleging thatCentral was a successor employer;Central was a common employer; and/orThe Ed Webb’s certificate should be reconsideredSuccessor VS Common e/erSuccessor employer provisions apply when there is a transfer i.e. an acquisition coupled by a relinquishment of a businessCommon employer provisions apply when associated or related activities carried on through common control and directionSuccessor and common employer provisions overlap often when there is a transfer of corporate assetsPrinciples of reconsiderationPower to reconsider is plenary independent powerGives ability to adapt to changing conditionsBoard can use power to respond to developments not addressed by other areas of the CodeCannot be used to avoid or shortcut express requirements of the CodeBargaining agent must still enjoy majority supportCan be invoked outside of window periodsReconsideration also overlaps when there is intra corporate transfer of assetsSuccessor and common employer originally contemplated to overcome changes in legal personalityHowever, both successor and common employer declarations have been granted in intracorporate transfer situationsHeld: Ed Webb and Central Web are not common employersDecision to transfer Ed Webb’s operations was not motivated by anti-union animus, but legitimate business reasonsNo labour relations purpose to extending Ed Webb’s bargaining rights to Central Web if Ed Webb went out of businessHeld: Central is a successor employer/bound by existing certificates and CAClose scrutiny required of intracorporate, non-arms length, transfers There was an appropriation of the “life blood” of Ed WebImportant factors in favour of successorship: sales, management staff transferred to Centraljoint managers focused efforts on CentralLarge work contract transferred to CentralCentral began appropriating Eds soft assets almost immediatelyLess important: sale of press w/ proceeds to Ed webUnfair Labour PracticeUnion also brought several unfair labour practice complaintsUpheld: sold press and closed business w/ 12 hours noticeObligation of e/er to disclose to union anything that will seriously impact e/ees as soon as decision is madeCentral refused to hire union aligned Ed Web e/ee ................
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