Collective Bargaining Summary
Professor Curran – Winter Semester 2013
Table of Contents
Introduction .................................................................................................................................................. 5
Introduction to Collective Labour Law: Development & Policy ................................................................ 5
Health Services and Support – Facilities Subsector Bargaining Association v. British Columbia [2007]
2 SCR 391............................................................................................................................................... 7
The Private and Public Sectors: Key Distinctions Relevant to Collective Bargaining Law......................... 9
Constitutional Protection for Collective Bargaining: The Freedom of Association ................................ 10
Alberta Reference................................................................................................................................ 12
Dunmore 2001 SCC.............................................................................................................................. 13
BC Health Services – Revisited............................................................................................................. 13
Ontario (Attorney General) v. Fraser, 2011 SCC 20, [2011] 2 SCR 3 ................................................... 15
Federal and Provincial Responsibility for Labour Law ............................................................................ 17
Toronto Electric Commissioners v. Snider (1925 PC) ........................................................................... 18
Stevedores Reference (1955 SCC)........................................................................................................ 18
CP Rail ................................................................................................................................................. 18
Tessier Ltee v. Quebec (Commission de la santé et de la securite du travail), 2012 SCC 23 ............... 19
Acquiring Collective Representation Rights ................................................................................................ 20
The Statutory Certification Process ........................................................................................................ 21
Certification Application Procedures .................................................................................................. 21
Timeliness & Time Bars ....................................................................................................................... 27
IUOE v. Beamish Construction (2007) OLRB ........................................................................................ 29
Status & Exclusions ............................................................................................................................. 30
Teamsters and Tecumseh 1998 OLRB ................................................................................................. 30
IUOE v. TWD, 2009 OLRB .................................................................................................................... 31
Children’s Aid Society v. Ottawa-Carlton, 2001 OLRB ......................................................................... 32
Point-Claire v. Quebec, 1997 SCC ........................................................................................................ 33
White Spot Ltd. v. BCLRB, 1997 SCJ ..................................................................................................... 35
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USW v. Kubota, 1995 OLRB ................................................................................................................. 36
University of Toronto Faculty Association (UTFA) v. St. Mike’s, 2011 OLRB ....................................... 36
Requirements for an Appropriate Bargaining Unit ............................................................................. 37
Metroland, 2003 OLRB ........................................................................................................................ 38
SORWUC v. CIBC, 1997 CLRB ............................................................................................................... 39
USW v. TD, 2005 CLRB......................................................................................................................... 40
Statutory Representation in the Public Sector ....................................................................................... 41
Non-Statutory Access to Collective Representation: Voluntary Recognition ......................................... 43
UWU v. Pine Valley, 2007 OLRB .......................................................................................................... 44
Viatek v. IBEW, 2011 BCLRB ................................................................................................................ 44
Freedom of Association: Revisiting Constitutionality Adequate Forms of Collective Representation... 45
Mounted Police Association of Ontario v. Canada, 2009 ONCA ......................................................... 47
Unfair Labour Practices ............................................................................................................................... 48
Introduction ............................................................................................................................................ 48
Requirements.......................................................................................................................................... 55
CPU v. International Wallcoverings, 1983 OLRB ................................................................................. 55
CBC v. CLRB, 1995 SCC......................................................................................................................... 56
CAW v. Toromont, 2001 OLRB ............................................................................................................ 57
Teamsters v. Patrolman, 2005 OLRB................................................................................................... 57
UBC v. Finn Way, 2011 OLRB .............................................................................................................. 58
Particular Types of Unfair Labour Practices Conduct ............................................................................. 59
Simpsons v. CUBFCSDDW, 1985 CLRB ................................................................................................. 59
OPSEU v. Royal Ottawa, 1999 OLRB ................................................................................................... 60
USW v. Wal-Mart, 1997 OLRB............................................................................................................. 60
Canada Post Corp., 1995 CLRB ............................................................................................................ 61
T. Eaton, 1985 OLRB ............................................................................................................................ 62
Cadillac Fairview v. RWDSU, 1989 ONCA ............................................................................................ 62
UFCW v. Sobeys, 2010 OLRB ............................................................................................................... 62
Remedies & Enforcement ....................................................................................................................... 63
Royal Oakes Mines v. CLRB, 1996 SCC ................................................................................................ 64
Barton Metal, 2001 OLRB ................................................................................................................... 65
National Bank, 1982 CLRB................................................................................................................... 65
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National Bank, 1984 SCC ..................................................................................................................... 65
Wal-Mart, 1997 OLRB ......................................................................................................................... 66
LIUNA v. East Elgin Concrete, 2007 OLRB ........................................................................................... 66
Modifying & Terminating Bargaining Relationships ................................................................................... 67
Ajax v. CAW, 1998 ONCA .................................................................................................................... 67
Canada Post v. CUPW, 1990 CLRB ...................................................................................................... 68
Kingston Typo Union, 2008 OLRB ........................................................................................................ 68
Negotiating a Collective Agreement ........................................................................................................... 70
Collective Bargaining............................................................................................................................... 72
UERMWA v. DeVilbiss, 1976 OLRB ...................................................................................................... 72
GAIU v. Graphic Centre, 1976 OLRB .................................................................................................... 72
CAIMAW v. Noranda, 1975 CLRB ........................................................................................................ 73
USW v. Radio Shack, 1980 OLRB ......................................................................................................... 73
Royal Oakes Mines v. CLRB, 1996 SCC ................................................................................................ 74
United Steel, Paper and Forestry […] v. Vale Inco Limited, 2012 OLRB ............................................... 74
AMAPCEO v. Ontario (Government Services), 2012 OLRB .................................................................. 74
IWA v. Consolidated Bathurst, 1983 OLRB .......................................................................................... 75
Royal Oakes Mines, 1996 SCC ............................................................................................................. 76
CAW v. Buhler Versatile Inc., 2001 MLB.............................................................................................. 77
USW v. Neenah, 2006 OLRB ................................................................................................................ 77
First Contract Arbitration ........................................................................................................................ 78
Yarrow Lodge v. Hospital Employees’ Union, 1993 BCLRB.................................................................. 78
Teamsters v. Lafarge, 2004 OLRB ....................................................................................................... 78
Industrial Conflict: Strikes, Lockouts, & Picketing....................................................................................... 80
Introduction ............................................................................................................................................ 80
Rookes v. Barnard, 1964 House of Lords............................................................................................. 87
Teamsters v. Therien, 1960 SCC .......................................................................................................... 89
United Nurses of Alberta v. Alberta, 1992 SCC ................................................................................... 89
Berry v. Pulley, 2002 SCC ..................................................................................................................... 89
PSAC v. Canada, 2002 ONCA ............................................................................................................... 90
RJR-MacDonald v. Canada (AG), 1994 SCC ......................................................................................... 90
St. Anne Nackawic v. CPWU, 1986 SCC ............................................................................................... 91
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OCA Workers v. Polymer, 1958 ........................................................................................................... 92
Rogers Cable v. IBEW, 1987 CLRB ....................................................................................................... 93
Picketing .................................................................................................................................................. 93
Canex Placer v. CAIMAW, 1975 BCLRB ............................................................................................... 94
TTC Case, 1996 OLRB........................................................................................................................... 94
GM case .............................................................................................................................................. 95
Harrison v. Carswell, 1976 SCC............................................................................................................ 95
Cancoil Thermal v. Abbott, 2004 ONSC ............................................................................................... 95
Hersees v. Goldstein, 1963 ONCA........................................................................................................ 96
Pepsi v. RWDSU Local 558, 2002 SCC .................................................................................................. 96
Alternatives to Strikes and Lockouts....................................................................................................... 97
Association of Justice Counsel v. Canada (Attorney General), 2012 ONCA ........................................ 98
Works Stoppages & Dispute Resolution in the Public Sector ................................................................. 99
Toronto v. TCEU, 2012 OLRB ............................................................................................................... 99
RCMP v. Canada (Meredith), 2011 FCA............................................................................................... 99
Federal Government Dockyard Trades and Labour Council v. The Attorney General, 2011 BCSC .... 100
Is There a Constitutional Right to Strike? ............................................................................................. 101
Alberta Reference, 1987 SCC ............................................................................................................. 101
R v. Saskatchewan Federation of Labour, 2013 SKCA (lower court 2012, SKQB) ............................. 102
Issues for Individual Employees under Collective Bargaining................................................................... 103
Introduction .......................................................................................................................................... 103
Duty of Fair Representation .................................................................................................................. 103
Gagnon v. Canadian Merchant Service Guild and Laurentian Pilotage Authority (1984)................. 104
Union Security ....................................................................................................................................... 108
Speckling v. Communications, Energy and Paperworkers’ Union of Canada, Local 76, BCLRB ........ 109
Birch v. The Union of Taxation Employees, Local 70030, 2008 ONCA .............................................. 110
Lavigne v. Ontario Public Service Employees Union, 1991 SCC ......................................................... 110
R. v. Advance Cutting and Coring Ltd., 2001 SCC .............................................................................. 111
Exam Review ............................................................................................................................................. 111
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Introduction
Introduction to Collective Labour Law: Development & Policy
Logic of Collective Action
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Lends credibility to the action, exerts more pressure
Collective action is very intuitive – even if you philosophically disagree with the concept of
unions, in situations where your interests become strongly engages, you are likely to see the
benefits of collective action
Collective action is used as a mechanism to try to equalize bargaining power
Three Key Activities
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Organize (Recognize): right of workers to organize as a union and obligation of employer to
attempt to negotiate a resolution
Collectively Bargain: obligation on the part of management and the union to come together to
attempt to negotiate a resolution
Strike (Lock Out): Mechanism is the parties cannot come to a resolution through collective
bargaining.
o The right to strike (for workers) and the right to lock out workers (for management) are
dispute resolution mechanisms that function by exerting pressure.
Labour Law Structure
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Labour law is meant to be a comprehensive statutory scheme
Key Players: Government (sets the rules for the game), employees, unions and employers
o Note: in the public sector, the government fills the role of setting the rules but also fills
the role of employer – creates clashes
Typically, labour law and policy is heavily influenced by the government of the day – labour
legislation is constantly changing
Rules are administered by tripartite parties i.e. the Ontario Labour Relations Board
o Boards consist of representation from all three sectors – unions, management and
government
Unfair Labour Practices (ULPs): activities by employers that discourage unionization i.e. firing an
employee who is attempting to organize the workplace in a unionization drive
o Employers are also tempted to ignore the legitimacy of unions and want to deal with
employees directly (less bargaining power)
o Collective bargaining contains the duty to bargain in good faith – without this duty, the
employer has the power to essentially stone wall the union and refuse to make
legitimate efforts to negotiate
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Collective Bargaining: Does NOT ensure a substantive outcome but rather ensures a mechanism
which has been designed to attempt to equalize bargaining power
o Abrogation of freedom of contract because the employer is required to negotiate with
the union rather than simply contract the work out to another party
o Limits the influence of the courts:
 Historically, courts have shown little sympathy towards unions and workers
therefore tend to be very suspicious of the courts.
Objectives of the Labour Relationship
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Efficiency: accomplish things in an efficient manner in the employment relationships, avoid
delays in productivity in the workplace
Equity: in terms of material outcomes of the relationship (i.e. guaranteeing a certain level of
remuneration) and in terms of dignity of the individual
Voice: meaningful input into the decisions that affect the enterprise and that affect them
Generally, the interests of management are focused on efficiency (producing as much as
possible for as cheap as possible).
Typically, the employees are focused on equity and voice.
o Equity is addressed by human rights legislation, pay equity, legislation around issues of
minimum wage, overtime etc.
Main focus of collective bargaining is to balance the employee’s interest in voice/equity and the
management’s interest in efficiency
o Different governments make different choices in regards to what extent voice is
favoured over efficiency
Three Main Sources of Labour and Employment Law
1. Employment Contract
2. Collective Bargaining Law
3. Equity
Purposes of the Ontario Labour Relations Act
Section 2: The following are the purposes of the Act:
1. To facilitate collective bargaining between employers and trade unions that are the freelydesignated representatives of the employees. (voice)
2. To recognize the importance of workplace parties adapting to change. (efficiency)
3. To promote flexibility, productivity and employee involvement in the workplace. (efficiency and
voice)
4. To encourage communication between employers and employees in the workplace. (voice)
5. To recognize the importance of economic growth as the foundation for mutually beneficial
relations amongst employers, employees and trade unions. (efficiency)
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6. To encourage co-operative participation of employers and trade unions in resolving workplace
issues. (voice)
7. To promote the expeditious resolution of workplace duties. (efficiency) (used to say “fair and
expeditious resolution” but was removed in the most recent legislation)
Canadian Labour History
Health Services and Support – Facilities Subsector Bargaining Association v. British Columbia
[2007] 2 SCR 391
 3 Eras of Legal Development:
o Repression: Courts were part of the problem. There was a long history in common law
and legislation of anti-union animus. Critical union activities were repressed by criminal
law and common law
o Toleration: Some of the penalties pertaining to organized labour and collective
bargaining were slowly lifted.
 The toleration did come with certain hitches though – there were no guarantees
for workers that they wouldn’t be discriminated against in the context of
employment (i.e. no guarantee that employers wouldn’t refuse to hire people
known for organizing unions, limited penalties against employers for
terminating employees who attempted to unionize workers)
o Recognition:
 Wagner Act: legislated by US Senator Wager in response to the massive
unemployment and problems of the late 1920’s and early 1930’s.
Acknowledgement that free labour market was not working and there needed
to be remedies for employees – intervention into free labour market to give
employees more procedural mechanisms to exercise collective action and
increase bargaining power
 Four legislative hallmarks of the Wagner Act:
1. Explicit recognition of the right of employees to belong to a trade union of
their choice (exclusive majoritarianism – majority of employees elect union
of their choice and employer is obligated to recognize that union)
2. Gives protection against employer coercion or interference with organizing
activities – protects against ULP’s
3. Duty on employers to bargain in good faith with their employees’ union
(becomes relevant when we discuss meaning of “bargain in good faith” in
Fraser and Health Services)
4. Must be a dispute resolution mechanism to resolve impasses. These dispute
resolution mechanisms are used (1) in the process of negotiating collective
agreements if the parties cannot agree (i.e. right to strike/lock out
employees) and (2) during the life of the collective agreement to say that
the other side is not living up to the terms of the agreement (i.e. grievance
arbitration)
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Exclusive Majoritarianism: Allows the employees to present a united front to the employer and
thereby increase their bargaining power
o Without this, different employees could choose different unions and the result would be
free rider employees who do not become members of the union but still benefit from
their negotiations i.e. increased wages
o Not all employees of a workplace will be represented by the same union – bargaining
units exist within workplaces among employees with common roles. For each bargaining
unit there is one union
o Negative Impact of Exclusive Majoritarianism:
 Minority interest union members are often discriminated against or ignored by
the union. This is because the union is really representing the interests of the
majority.
 Young people get the short end of the stick – unions are struggling to maintain
their relevance and are cutting deals with employers that trade off the interests
of future employees in order to preserve the interests of current employees
Canada was slow to adopt the Wagner Act model – it did not fully come into play until the
1940’s with the adoption of the Wartime Labour Relations Regulations (PC 1003)
Collective Bargaining in the Charter Era:
o After looking at the development of the Wagner Act, the SCC went on to look at
collective bargaining rights in the Charter era
o “Collective bargaining, despite early discouragement from the common law, has long
been recognized in Canada. Indeed, historically, it emerges as the most significant
collective activity through which freedom of association is expressed in the labour
context. In our opinion, the concept of freedom of association under s. 2(d) of the
Charter includes this notion of a procedural right to collective bargaining” BC Health
Services at paragraph 66
o Majority concluded that the protection enshrined in s.2(d) recognizes the right to
collective bargaining
o Looked at the enactment of the Charter to determine what Canada intended to enshrine
in it
 Court found that because of the history of Canada, at the time that the Charter
was implemented, there was this history of there being a recognized right to
collective bargaining in Canada
 “The protection enshrined in s.2(d) of the Charter may properly be seen
as the culmination of a historical movement towards the recognition of
a procedural right to collective bargaining” BC Health Services 68
o Note: in many cases it isn’t necessary to consider the Constitutional right to collective
bargaining because the government has enacted legislation guaranteeing this right. You
look to the Charter when the government seems to be interfering with the collective
bargaining process or where the government is expected to help facilitate collective
bargaining for a disadvantaged workforce and is failing to do so
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The Private and Public Sectors: Key Distinctions Relevant to Collective
Bargaining Law
Bill 115 Example
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Ontario Government was facing a deficit of over $14 billion. Collective bargaining began in the
summer of 2012 and the government demanded concessions from educational workers.
Ultimately, only collective agreements were achieved with the Catholic and Francophone
teachers
As a result of the failure to reach agreements, the government passes the “Putting Students
First” Act.
o Locks in monetary and other key non-monetary terms. Boards and unions have until
2013 to conclude the rest of the agreement or the terms of the contracts with the
Catholic teachers will be imposed on all the teachers. (Note: Minister of Education has
the power to withhold approval of the agreements)
o The Act also prohibited legal challenges to the Bill and the agreements and created a
two year strike ban
 Teachers threatened walk outs but the Labour Relations Board ruled that this
would be an illegal strike and the teachers accepted the rulings of the board.
Bargaining takes place between the school boards and the relevant teachers unions
o Different unions for elementary teachers and high school teachers; public school
teachers and catholic school teachers
o Government does not directly negotiate collective agreement with the unions – but the
Harris government was signalling a desire to take a more hands on approach to the
collective agreements with the teachers
 Collective agreements were set to expire in August of 2012
 Government gave directives they wanted to see implemented i.e. wage
freezes and limitations on banking sick days
 Government reserved the right to approve the collective agreements
o This was unusual because normally once the employer approves
an agreement, the agreement is officially accepted
 Catholic and Francophone agreements largely gave the government the
concessions they were seeking
Private vs. Public-Sector Legislation
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Public sector includes: Federal civil service, Provincial civil service, Municipalities, health care,
education, government owned enterprises (i.e. crown corporations)
Private
Public
Bargaining
Almost everything is
Variety of restrictions on
negotiable
what can be bargained and
arbitrated
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Certification
Strikes
Wages
Any bona fide labour
organization can represent
employees
Labour board determines
bargaining unit
Almost all employees have
the right to strike and
employers have the right to
lock out
Unions and employees
bargain over wage rates
Labour organization may be
specified in legislation
Employee choice restricted
Bargaining units established
in legislation
Many employees prohibited
from striking or must carry
out designated services
during strike (essential
services)
Lockouts are often forbidden
Wages often set unilaterally
by special legislation in the
1970’s, 1980’s, and 1990’s
Constitutional Protection for Collective Bargaining: The Freedom of
Association
Charter
1. The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it
subject only to such reasonable limits prescribed by law as can be demonstrably justified in a
free and democratic society
2. Everyone has the following fundamental freedoms:
a. Freedom of conscience and religion;
b. Freedom of thought, belief, opinion and expression, including freedom of the press and
other media of communication;
c. Freedom of peaceful assembly; and
d. Freedom of association
 These fundamental freedoms are not absolute and are subject to s.1 of the Charter
 Is there a significant distinction between freedoms and rights?
o Freedoms are thought of as negative rights (freedom from interference) whereas rights
are thought of as having corresponding obligations against other parties (positive rights)
 Is this an individual or group right?
o There are components of the right that are collective and components that are
individual. Ultimately, it’s an individual right that is exercised collectively.
 Right to dissociate: if you do not agree with the actions of the union you can either leave the
union or can choose to dissociate with a particular union activity (i.e. not be involved or not pay
dues towards that activity)
o There is a need to balance the right to dissociate with the groups rights to prevent
dissociation in some circumstances which would otherwise undermine the effectiveness
of collective action
 Are the right to collective bargaining and the right to strike instrumental or independent?
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o
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Can be thought of as rights that simply enable workers to associate, in which case you
could make decisions about the trade-offs between those rights i.e. not giving the right
to strike so long as workers have other corresponding guarantees that enable them to
exercise their right to collective action in a meaningful way
o OR can be thought of as independent rights such that we cannot allow the legislature to
make policy decisions that would undercut either right
o Ultimately, it comes down to, to what extent is the legislature entitled to deference in
terms of the decisions they are making in the trade-off of rights.
The individual is free to do anything with a group that they could legally do alone
o Note: this is not an absolute rule and does not apply 100% of the time but it is a helpful
way of conceptualizing freedom of association
The International Labour Organization
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Committee on Freedom of Association: gives decisions on complaints arising from member
states (Canada is a member). The decisions are not binding but they are normative and set
standards that member states are expected to adhere to. SCC has relied on these decisions to
interpret the Charter
Instrumental Approach to Freedom of Association:
o Collective bargaining must be voluntary. Where parties bargain they must do so in good
faith. Member states have a duty to provide “machinery that encourages… voluntary
collective bargaining” (Digest, para 880)
o Convention 87 outlines general labour rights and has been ratified by Canada
o There is a more specific convention on collective bargaining which Canada has not
ratified
FOA committee accepts complaints from management or unions of any members states if they
feel their rights are being violated
o The most complaints against nations for labour relations: Canada ranks number 3
behind Chad and Morocco (which both have repressive labour regimes)
o The response of Canada has often been to ignore decisions of the committee
FAO Approach to Collective Bargaining:
o Pragmatic and function – views the right to freedom of association as instrumental
rather than an individual right
o Three key rights for the relationship between labour and management to function
properly:
 (1) right to organize, (2) right to collectively bargain, and (3) right to strike
o Collective bargaining must be voluntary – you cannot force the parties to enter into
collective bargaining and where the parties bargain it must be in good faith
o Member states have a duty to provide machinery that encourages voluntary collective
bargaining
o The committee is not putting a duty on the parties to bargain – rather they want it to be
encouraged but voluntary
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Labour Trilogy
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Jurisprudence on freedom of association in Canada has become confused so don’t expect clear
principles from these cases
Three cases decided together by SCC in 1987
Alberta Reference
Facts: government of Alberta expressed an intention to create legislation for the public sector which
would remove the right to strike and instead have a system of compulsory arbitration. Government
itself would determine when, if ever, compulsory arbitration would be resorted to. Government was not
sure if this legislation would be constitutionally valid and therefore submitted the question to the
courts, which made its way up to the SCC.
Issue: Does s.2 (d) include a right to strike?
Decision: No right to strike under s.2 (d) of the Charter
Reasons: Justice Macintyre – Applied the principle of symmetry between group action and individual
action (can you do as a group what you are entitled to do as an individual?). While an individual can stop
working, your job will not be protected and you could be liable for breach of contract. There is no
symmetry between the individual action and the group action. Generally, when the group stops
working, the jobs are protected and they are not liable to the employer for cessation of work. Also,
there needs to be deference to the legislature – judges are not experts on labour relations and the
legislature is trying to balance bargaining power. The courts should not be second guessing the
legislature’s balancing of those rights within labour relations matters.
Dissent: Wilson J and Dickson J – debated between two conceptions of freedom of association, that of it
being a static right and that of it being a dynamic right. Difference between the two is the extent to
which the rights under FOA can be used to foster or facilitate the goals of the association. Justice
Dickson considered international law and looked to the decisions and treaties of the ILO and concluded
that you can use international norms of the ILO to interpret Canada’s obligations under s.2 (d) of the
Charter. Canada’s obligations under the Charter need to be at least as great as Canada’s obligations
under the ILO. Dickson rejected the static conception of FOA as being a hollow right in which anything
beyond the simple fact of association is not protected. In order for labour organizations of employees to
achieve their objectives together, they must be able to strike – the right to strike is instrumental.
Dickson ultimately decided that the proposed government legislation would violate s.2 (d) and was not
justified under s.1. Application of the Oakes test: the legislative objective is to facilitate the ongoing
provisions of service to the public which is a legitimate objective. There was a rational connection
between the objective and the proposed legislation. The legislation failed at the minimal impairment
point. The legislation is too broad and the government is responsible for determining when an issue
goes to compulsory arbitration which means that employees will be denied that alternative to striking if
the government wishes so.
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Obiter: Court considered the right to collective bargaining and judges split 3-3 with 3 saying that there
was no protected right
Note: Curran says that some of the superior rights attached to the right to strike were developed
because they needed to stop liability under tort and liability under contract. You cannot insist on
absolute symmetry as Macintyre did.
Dunmore 2001 SCC
Facts: Important for understanding Fraser as a continuation of what was happening in Dunmore.
Historically, agricultural workers in Ontario have been expressly excluded from labour relations regimes
on the basis that unionization does not have a place on the family farms, which tend to be small with
small profit margins and require substantial flexibility. Agricultural workers often work long arduous
hours for little pay, tended to be poorly educated and were often times visible minorities from other
parts of Canada or other countries. Historically, they have also been denied rights under the
Employment Standards Act and the Workplace Health and Safety Act. In 1994, NDP government
implemented a piece of legislation that was meant to protect agricultural workers which gave them
rights including the right to unionize. That legislation lasted approximately 1 year before the
Conservative government under Mike Harris made broad changes in 1995. The government eliminated
the collective bargaining regime for agricultural workers and eliminated any agreements that had been
created under that regime (the elimination of the agreements probably could have been challenged but
were not because they decided to being a constitutional challenge) and reinstated the express exclusion
of agricultural workers under the labour regime.
Decision: the exclusion of agricultural workers violates s.2 (d) right to freedom of association
Reasons: Government argues that the Charter gives a freedom to associate but not a right and the
government has not directly interfered with the ability of these workers to associate. The farms
themselves may have interfered by not respecting attempts to associate, but there is no affirmative duty
on the government to step in and introduce a regime that will help workers organize. Majority rejected
this argument. There can be times where inaction is tantamount to denying certain groups of workers
their rights, which was the case here. The absence of any statutory regime for agricultural workers
resulted in them being unable to organize, especially because they were already such a disadvantaged
group. Court develops the substantial interference test: very relevant in Fraser. Legislature has an
affirmative duty here, which is often not the case. Government needs to have a reasonable system in
place to enable agricultural workers to organize. Court also applied the Oakes test and found that the
legislation did not pass the minimal impairment portion of the test and therefore was not saved under
s.1
Note: Curran says that you could argue that the court has crossed the line from s.2 (d) being a freedom
to it being a right by requiring affirmative action from the government to facilitate worker organization.
BC Health Services – Revisited
Facts: The appellants challenged the constitutional validity of Part 2 of the Health and Social Services
Delivery Improvement Act, as violating s.2(d) of the Charter. S.2(d) protects the capacity of members of
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labour unions to engage in collective bargaining on workplace issues. The respondent government
characterizes the impugned legislation as a crucial element of its response to a pressing health care
crisis, necessary and important to the well-being of BC. The appellants, unions and individual workers
respecting some of the subsectors of the health care sector affected by the legislation, by contrast, see
the Act as an affront to the fundamental right of employees and union members under the Charter,
which they understand as including a collective right to pursue fundamental workplace goals through
collective bargaining in respect of terms of employment.
Decision: Subject matter went to the core of the matters the union had tried to bargain for and were
interested in (outsourcing, layoffs, etc.) and therefore met the substantial interference test.
Furthermore, the process was flawed. The government engaged in very little consultation with the
unions and therefore the second part of the substantial interference test has been met as well.
Reasons: Court considered the scope of the right to collective bargaining and said it included (1) right to
present demands and engage in discussion (right of the parties to meet and negotiate), (2) duty on the
employer to bargain in good faith, (3) this duty of collective bargaining is a procedural right, not a
substantive right (employers do have a right to hard bargaining, so long as they engage in the process
meaningfully. Cannot partake in surface bargaining where the parties go through the process with no
intention of reaching an outcome), (4) No right to particular model of labour relations (court did not
require the government to automatically create the Wagner Act model. There are a range of models
that facilitate collective bargaining and would be considered acceptable).
Substantial Interference Test: Court was clear that this test has a relatively high bar to meet –
modest infringements on collective bargaining would not meet the test. There needs to be a
substantial interference on the part of the government in order for the court to find
infringement of s.2 (d).
Were the matters that were being interfered with extremely important to unions? Periphery
matters would not meet the substantial interference test
Was a reasonable process followed? Court states that there are times where interference will
be acceptable if a reasonable process is followed
Court adopted an instrumental view of the right to collective bargaining in that it is instrumental to
unions in achieving their purpose. Collective bargaining is required in order to make the freedom of
association meaningful for workers and unions. Employees have a right to collective action to achieve
workplace goals. Court relied on ILO jurisprudence. The right to collective bargaining is consistent with
Charter values.
Criticisms of this case: An imposition of a duty on employers to not only negotiate, but negotiate in
good faith, was not required in this case. It wasn’t the behaviour of the government as employer that
was being challenged, it was the legislative enactments of the BC legislature that was being challenged
and the court went further than was necessary. This decision had the effect of constitutionalizing the
Wagner Act model. Many academics believe that the imposition of the duty to bargain in good faith is
14
specific to the Wagner Act model which contains that right and mechanism for enforcing the duty and
consequences for failing to do so (strike, arbitration, etc.). However, BC Health Services did not
constitutionalize the right to strike – commentators have said that the court put in place the duty to
bargain in good faith and once that has been done there has to be a corresponding duty for a dispute
resolution mechanism where there is a violation of that right. By virtue of putting in place the first right,
it is going to lead to the second right being put in place and thus the Wagner Act with be
constitutionalized. Court mischaracterized the ILP jurisprudence pertaining to the duty to bargain.
Note: The court clarified in Fraser that there isn’t a constitutional duty on employers directly but rather
a constitutional duty on governments to create mechanism to put that duty on employers
Ontario (Attorney General) v. Fraser, 2011 SCC 20, [2011] 2 SCR 3
Facts: essentially a continuation of the dispute in Dunmore. In Dunmore the SCC told the Ontario
government that they needed to create a meaningful system of organizing for agricultural workers
based on their historic disadvantage and inability to organize without an assisting mechanism in the
legislation, but did not insist that the workers be put under the Labour Relations Act. Ontario
government (under Mike Harris) passed the Agricultural Employees Protection Act. Critics referred to
this as the collective begging act or doing the bare minimum possible act. Under this separate regime
agricultural workers could form an employee’s association which could make representation to the
employer either verbally or in writing and the employer must hear/read the representation. The regime
also put in place a tribunal to deal with disputes. Under the regime there was no right to strike, no
meaningful dispute resolution mechanism, and the tribunal had no labour relations expertise. Lawyers
advised employers to send letters to workers stating that they had read and considered their
representation and then simply proceed to ignore them. There was no meaningful bargaining occurring
between the employers and the employees/their association.
ONCA Decision: Justice Winkler’s decision flows with the decisions in Dunmore and BC Health Services –
looked at the rights provided under the Agricultural Employees Protection Act which included the right
to form and participate in an employee association, the right to assemble, the right to make
representations to the employer through the association and the right to participate in activities of the
association, and also provided for the right for protection from interference in the exercise of these
rights. Winkler went to look at the tribunal tasked with administering this act and found it was a preexisting tribunal which had historically had jurisdiction over purely agricultural matters and had no
expertise in labour relations matters.
First Issue: Did the regime protect the right to organize? Yes, this Act did protect the right to
organize. While he was sceptical of the tribunal’s ability to effectively police any interference,
there was not enough evidence to prove it did not
Second Issue: Did the regime protect the right to collective bargain? No, the Act did not protect
the right to collective bargain. There was not any form of bargaining contemplated by the Act
and there was no evidence that bargaining actually occurred.
15
Winkler was troubled by some omissions in the Act – there was no obligation on the employer to
bargain in good faith, no obligation on the employer to bargain at all. There was no meaningful DRM to
resolve either bargaining impasses or disputes about the collective agreement. No principle of exclusive
majoritarianism in the Act, meaning that there could be competing employee associations negotiating
for the employees. In this case there was evidence that the employer actually created their own
employee organization to compete with the legitimate organization created by the employees. Winkler
said the Act was in need of a statutory duty to bargain in good faith, statutory majoritarianism, and
statutory DRM (Note, this is further evidence of the court constitutionalizing the Wagner Act model as
those three statutory requirements are components of the Wagner Act model). Winkler rejected the
s.15 arguments of the workers stating the Act wasn’t targeting a disadvantaged group of workers but
rather a specific economic sector. Winkler assessed whether the violation of s.2 (d) could be upheld
under s.1. The legislative objective passes constitutional muster as it was to protect the particular
circumstances of the agricultural sector. The Act failed the proportionality component – the Act is
intended to protect family farms but the effect of the Act was too broad because agriculture has moved
beyond the family farm. Furthermore, most other provinces do not exclude agricultural workers but
rather have a small number of employee exclusions which makes more sense from a minimal
impairment standpoint. There are many other businesses that have fairly thin profit margins and small
work forces and yet we still give those workers the right to unionize. The violation of s.2 (d) is not saved
under s.1. Legislation is suspended for 12 months to give the government time to create legislation
which addresses the concerns raised. Government appealed to the SCC
SCC Decision
Issue: Does s.2 (d) impose an obligation on the government to provide a particular form of collective
bargaining?
Decision: S.2 (d) was not violated by the Agricultural Employees Protection Act
Reasons: Majority: Court changes the language for the substantial interference test for where a breach
of collective bargaining rights has been made. In the past, the test was one of substantial interference
which was still a high bar for workers to meet. Now the court changed the language to that of
impossibility – it must be impossible for the workers to reach a collective agreement. There was also no
overt language in the legislation that required employers to consider the representation of the
employees so the court read in that duty. Reading in that duty allowed the court to determine that it
was not technically impossible for collective bargaining to occur and because of the insufficient
evidence; it was too soon to declare that there was a lack of collective bargaining and good faith on the
part of the employers.
Justice Rosthstein (minority) – Believed BC Health Services was not good law and should be overturned
for a number of reasons.
1. Collective bargaining is a policy decision requiring a balancing of interests. The court should not
second guess the legislature. There are many complicated policy considerations that go into
creating labour legislation
16
2. BC Health Services created a lack of symmetry between unionized and non-unionized employees
by creating a duty on the employer to enter negotiations and a duty to negotiate in good faith,
both of which are rights that non-unionized employees do not have. The BC Health Services
decision effectively gave unionized employees superior rights and this is not something s.2 (d)
should entrench (Curran: you cannot insist on absolute symmetry between unionized and nonunionized employees – there should be some special treatment attributed to collective action)
3. The majority in BC Health Services founded their decision on the ILO conventions and
jurisprudence. That was incorrect because these conventions and jurisprudence do not actually
contain an unfettered duty on employers to negotiate and do so in good faith (Curran: this
criticism is actually correct – there is no support for contention that parties must enter into
negotiations)
Justice Abella (minority of 1): One of the ways to reconcile BC Health Services with Fraser is that workers
are on much stronger footing in terms of asserting protection against government interference with
collective bargaining than they are with putting positive obligations on the government to create
systems to help facilitate collective bargaining. (Curran: based on the facts and law, Abella’s decision is
arguably the most correct and closest to Winkler’s ONCA decision
Curran: the SCC watered down the scope of the right to collective bargaining. The right was interpreted
much more broadly in BC Health Services than in Fraser. At paragraph 90 of BC Health Services the court
stated that the right to collective bargaining requires both employers and employees to meet and
bargain in good faith in pursuit of a common goal of peaceful and productive accommodation. At
paragraph 2 of Fraser the court stated that the right to collective bargaining is a process of engagement
that permits employee associations to make representations to employers which employers must
consider and discuss in good faith.
Federal and Provincial Responsibility for Labour Law
Constitution Act 1867 (BNA Act)



S.91 – Federal law making authority
S.92 – Provincial law making authority
o Neither section refers specifically to labour relations and so there is significant room for
judicial discretion
Arguments in favour of Federal Authority:
o Peace, order and good government: labour relations could be considered something as
national importance (strikes can be nation-wide, labour relations affect the national
economy etc.)
o Regulation of trade and commerce, regulation of the postal service, regulation of the
fixing and regulation of salaries and allowance of civil and other officers of Canada,
regulation of navigation and shipping
o Ferries between either two provinces or between a province and foreign countries
o Criminal law – there are existing criminal laws that deal with labour relations matters
i.e. picketing
17


Arguments in favour of Provincial Authority:
o Municipal institutions in the province
o Local works and undertakings (exception: other than such as are the following classes:
steamships, railways, or other ships that go between provinces or from a province to a
foreign country and such works although wholly situated in the province are declared by
the government of Canada to be for the benefit of the whole country)
o Property and civil rights in the province – used to support the argument that labour
relations are primarily within the provincial authority
o Matters of local or private nature
There is not 100% clarity in terms of what should fall where
Toronto Electric Commissioners v. Snider (1925 PC)
 Labour relations generally under 92(13) Provincial authority over property and civil rights in the
province
 Industrial Disputes and Investigations Act (Federal Act) is unconstitutional and ultra vires the
powers of the Federal government.
 Also debate over whether the power might come under s.92(8) which pertains to institutions
within the province
 Federal government changed its legislation and enacted the Canada Labour Code which lists the
industries for which labour relations within the federal authority including navigation and
shipping, railways, banks and airlines.
 There is really no decisive test for determining which level of government definitively governs an
industry – courts have adopted a common sense approach
Stevedores Reference (1955 SCC)
Facts: group of stevedores at Toronto docks who had contracts with a number of shipping lines that
were operating on an international basis. The shipping lines had a contract with the stevedores
company and the employees were responsible for loading and unloading the ships at the Toronto docks.
Industrial Relations and Disputes Investigation Act (IRDIA) had been modified since the Snider case and
stated that it applied to “businesses carried on in connection with navigation and shipping”. There was a
dispute over the characterization of the job of the stevedores. One argument was that there was an
intimate connection between the works of the stevedores and navigation and shipping – necessarily
incidental to an integral part (intimate connection, vital, truly ancillary). The other argument was that
the stevedores operated in Ontario exclusively and didn’t actually have anything to do with shipping
Decision: SCC ruled they are federally regulated by virtue of the connection between their work and the
federally regulated industry of shipping
CP Rail
Facts: Group of CP employees ran a hotel for people ending their journey on the railway to stay at
18
Decision: SCC said that it was possible to have federally regulated CP employees working on the railways
and then having a separate group of provincially regulated CP employees working in the hospitality
industry. Court used the common sense approach and focused on the type of work
Tessier Ltee v. Quebec (Commission de la santé et de la securite du travail), 2012 SCC 23
Facts: 14% of Tessier’s overall revenue comes from stevedoring and 20% of the salaries paid to workers
came from stevedoring activities. Some of the stevedoring was for international or province to province
shipping as opposed to shipping within Quebec. However, there were no employees dedicated
specifically to stevedoring at Tessier. Tessier did not want to be provincially regulated because they
would have to pay into the Quebec worker’s compensation scheme.
Issue: Was Tessier subject to Quebec Occupational Health & Safety legislation?
Decision: Employees governed by Quebec’s Occupation Health & Safety legislation
Reasons: Federal government has jurisdiction in the case of
(1) Direct jurisdiction: where the employment is directly related to a federally regulated
undertaking i.e. an international shipping company. The considerations of direct jurisdiction do not
differ greatly than the requirements for derivative jurisdiction. Courts will generally look at segregation
and the proportion of the company that is involved in the federal undertaking
(2) Derivative jurisdiction: where the employment is an integral part of a federally regulated
undertaking. Integral part – company has to be providing integral work to the federal undertaking i.e.
exclusive, long term contract for stevedores. Organizational Structure – can be a small part of the
company but the unit must be segregated in order for that unit to be federally regulated. If they are not
federally integrated, you need to look at what proportion of the company is involved in the federal
undertaking. If it is a small proportion, none of the employees will fall under federal jurisdiction. If a
significant portion of the company is involved, it is likely that all of the employees will fall under federal
jurisdiction.
Courts must assess the work’s essential operational nature. Tessier argued this was an instance of direct
jurisdiction of the fact that some of their workers were doing stevedore work some of the time and this
brought everyone under federal regulation. The court ultimately ruled that this was an instance of
derivative jurisdiction and that Tessier did not meet the test for derivative jurisdiction and therefore the
company is provincially regulated.
Test: Do the services provided to the federal undertaking form a principal part of related work activities?
Another possible way to be incorporated is the test of: whether services provided to the federal
undertaking was performed by employees in a functionally discrete unit.
Tessier devoted a majority of its efforts to provincially regulated activities. Court also stated that
because the stevedoring was integrated and minor, they did not have to worry about the inquiry of
whether or not the activities were essential to the international or interprovincial shipping companies.
Had the stevedoring work at Tessier been distinct and significant, Tessier would still have needed to
19
provide evidence that their work was integral to this federally regulated industry. Tessier did not adduce
this evidence because they had assumed this was a case of direct jurisdiction when rather it was a
matter of derivative jurisdiction. It is only if the dominant character of the local work or undertaking is
integral to a federal undertaking that it will lose its local nature and no longer remain under provincial
jurisdiction.
Steps for Determining Jurisdiction
Step One:


Determine whether the employment clearly relates to a federally regulated undertaking
(“direct” federal jurisdiction). In order to assess this, the starting point is sections 91 and 92 of
the Constitution Act. Section 2 of the Canadian Labour Code is useful to use in this analysis
because it outline those works, undertakings, and business that have generally been interpreted
to fall under federal authority, pursuant to s.91.
Often times it is unclear whether an employer’s business falls under s.91 or s.92, and here it is
useful to rely on Snider, which stands for the proposition that there is a presumption that
provincial labour law applied, due to s.92(13)(property and civil rights in the province)
Step Two:

Even if the analysis under step 1 points to a provincial jurisdiction, it might be possible for a
group of employees to be covered by federal labour legislation under the concept of “derivative
jurisdiction”. Here you should apply the Stevedores Reference and Tessier.
Acquiring Collective Representation Rights





Think of organizing as distinct from certifying phase
Union organizing campaign/organizing drive is to convince employees to sign union membership
card – indicates that they wish to be exclusively represented by the trade union
One of the main purposes of the OLRA is to ensure that employees are represented by the union
of their choice and exclusively so
o If enough employees in a proposed BU want that union, it will represent them despite
their being a minority that wants a different union
Secrecy, confidentiality and momentum are crucial
o Union needs to get a significant amount of support before the employer finds out that
there is an organizing drive taking place at all.
 They don’t want the employer to say or do anything that will discourage the
employees from joining the union
No persuasion during working hours (s.77 of the OLRA) – both on the part of the union and the
part of the employers
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The Statutory Certification Process
Certification Application Procedures

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
Sanctioned, endorsed and monitored process – Ontario Labour Relations Board acts as a referee
for this process
Process is meant to test the wishes of the employees – intention is to ensure that a majority of
the employees do indeed want to be represented by the union
Fast turnaround is justified on the basis that the longer the process takes, the more
opportunities the employer has to partake in unfair labour practices and discourage employees
from voting for the union
o It is virtually impossible for the employer to delay the five day time limit for the vote
o The vote will still proceed despite their being disputes taking place – vote will take place
and remain sealed until issues are resolved (i.e. who is actually in the BU)
In the representation election you do not need 50% + 1 vote of the total employees in the
bargaining unit, you just need 50% + 1 vote of the employees who actually show up to the vote
Labour relations board meeting – can also lead to a hearing in front of the board if the meeting
fails to resolve disputes
After the meeting and potential hearing, the Labour Relations Board either certified or
dismissed the certification application
o Test is based entirely on the voting numbers (50% + 1 vote) for certification – if the
numbers do not reach majority the board will dismiss the certification application
4 Models for Determining Employee Wishes
1. Representation vote in every case (US)
 Lengthy campaign where both the employer and the union make representations to the
employees and then there is a vote
21
2. Reliance on membership evidence as of the date of application (card-based)
 Union has to produce evidence that a substantial majority of employees has signed the
card and then they can get immediate certification (there is no need for a vote). Unions
prefer this method because it leaves very little room for the employer to influence
employees to not join the union
3. Reliance on membership evidence, with allowance from change of heart
 Sometimes where there is only a card based system, the union will exert certain
pressures on employees and therefore employees should be allowed to have a change
of heart. Counter argument is that the change of heart is not sincere but as a result of
pressure exerted on them by the employer
4. Quick vote in every case (NS, ON, and others)
 Argument that it has some of the best characteristics drawn from the other models


Card based model was used in Ontario up until 1995 and then the mandatory vote model (quick
vote model) was adopted.
Unions prefer the former card based model because it they gain enough support it can be a one
step process whereas under Bill 7 they have to engage in the secret ballot vote regardless of the
amount of support shown in membership cards
Negative Effects of Change from Model 2 to Model 4



Fewer certification application – 19.4% decline
Different characteristics of applicants and certified units
o Less success in organizing vulnerable groups
 Part timers, workers in hard to organize industries, private sector workers,
workers in smaller units
Lower certification success rate – about 10% less in Ontario
o More effective employer unfair labour practices (about twice as effective)
22
o
Role of delay – more time for employers to influence employees
Certification Procedures


Once a union has sufficient membership support the union will make an application for
certification
Served on employer and filed with the Ontario Labour Relations Board
Notice to Employer – 7.(11): The trade union shall deliver a copy of the application for certification to
the employer by such time as is required under the rules made by the Board and, if there is no rule, not
later than the day on which the application is filed with the Board
Proposed Bargaining Unit – 7.(12): The application for certification shall include a written description of
the proposed bargaining unit including an estimate of the number of individuals in the unit
Evidence – 7.(13): The application for certification shall be accompanied by a list of the names of the
union members in the proposed bargaining unit and evidence of their status as union members, but the
trade union shall not give this information to the employer



The bargaining unit description: the group of employees that the union is seeking to represent,
“All employees of ABC Company in the City of Toronto, save and except supervisors and persons
employed above the rank of supervisor”
Serves a number of purposes including: whether the union have sufficient support to be granted
a vote, defines group of employees eligible to vote, defines those employees represented by
union if vote is successful
Application also includes unions estimate of number of employees in the bargaining unit,
membership evidence (not shared with employers) and voting arrangements (including union’s
scrutineer)
Employer’s Response



Employer has 2 days after the receipt of the application to file a response with the Ontario
Labour Relations Board (s.7(14) and s.8.1)
Employer may disagree with the unions proposed bargaining unit, the unions estimate of the
number of employees in the bargaining unit and the proposed voting arrangements
Employer must provide a list of bargaining unit employees to the union and OLRB
Same – 7.(14): If the employer disagrees with the description of the proposed bargaining unit, the
employer may give the Board a written description of the bargaining unit that the employer proposes
and shall do so within two days (excluding Saturdays, Sundays and holidays) after the day on which the
employer received the application for certification
Disagreement by employer with union’s estimate – 8.1(1): If the employer disagrees with the trade
union’s estimate, included in the application for certification, of the number of individuals in the unit,
the employer may give the Board a notice that it disagrees with that estimate
23
Content of notice – 8.1(2): A notice under subsection (1) must include, (a) the description of the
bargaining unit that the employer proposes or a statement that the employer agrees with the
description of the bargaining unit included in the application for certification; (b) the employer’s
estimate of the number of individuals in the bargaining unit described in the application for certification;
and (c) if the employer proposes a different bargaining unit from that described in the application for
certification, the employer’s estimate of the number of individuals in the bargaining unit the employer
proposes
If Application Uncontested


The OLRB will look at the union’s membership evidence and compare to the number of
employees in the bargaining unit
Two possible outcomes:
o If signed membership cards >40%, vote ordered within 5 days of filing
 Direction re representation vote S.8(2) if the Board determines that 40 per cent
or more of individuals in the bargaining unit proposed in the application for
certification appear to be members of the union at the time the application was
filed, the Board shall direct that a representation vote be taken among the
individuals in the voting constituency
 Timing of vote S.8(5) Unless the board directs otherwise, the representation
vote shall be held within five days (excluding Saturdays, Sundays, and holidays)
after the day on which the application for certification is filed with the Board
o If signed membership cards are <40%, Board dismisses the application
The Vote

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
Supervised by an OLRB Labour Relations Officer
Secret Ballot
o Conduct of vote – 8(6): The representation vote shall be by ballots cast in such a
manner that individuals expressing their choice cannot be identified with the choice
made
Who can vote? Individuals who are employees on the date of application and fall within the
bargaining unit
Generally, the employers list of employees is the voters list
Voter can be challenged by union or employer (ballot segregated)
o Sealing of ballot box, etc. – 8(7): The Board may direct that one or more ballots be
segregated and that ballot box containing the ballots be sealed until such time as the
Board directs
Voting constituency – 8(1): Upon receiving an application for certification, the Board may determine the
voting constituency to be used for a representation vote and in doing so shall take into account, (a) the
description of the proposed bargaining unit included in the application for certification; and (b) the
description, if any, of the bargaining unit that the employer proposes
24



If the employer claims fewer employees fall within the bargaining unit, this will not have any
impact on whether the vote is ordered
If the employer claims more employees fall within bargaining unit, this may have an impact
(s.8.1)
OLRB examines the following to see if the employers objection is material: membership
evidence, list of employees and employer’s claimed number of employees
S.8.1 deals with employer claims that the union did not meet the 40% membership card threshold.
The employer gives notice under s.8.1(1), the vote proceeds, and the ballot box is sealed (s.8.1(4)).
After the vote, if the employer continues to maintain the objection, the ballot box remains closed
until the s.8.1 objection is disposed of. The board then turns its mind to whether the objection is
material. If it is not material, the Board does not formally go through the full s.8.1(5) inquiry and
proceeds to unseal the ballot box. If the s.8.1 objection is material, the Board proceeds to go
through the full s.8.1(5) inquiry. If at the end of the inquiry, the Board finds that the union had less
than 40% of signed cards from the bargaining unit, then the Board dismisses the union’s
application for certification (s.8.1(5)(7)). Alternatively, if at the end of the s.8.1(5) inquiry the
Board finds that the union has 40% or more signed cards, the ballot box is unsealed and the
ballots are counted (s.8.1(5)(8)).
Disagreement by employer with union’s estimate – 8.1(1): If the employer disagrees with the trade
union’s estimate, included in the application for certification, of the number of individuals in the unit,
the employer may give the Board a notice that it disagrees with that estimate
Content of notice – 8.1(2): A notice under subsection (1) must include, (a) the description of the
bargaining unit that the employer proposes or a statement that the employer agrees with the
description of the bargaining unit included in the application for certification; (b) the employer’s
estimate of the number of individuals in the bargaining unit described in the application for certification;
and (c) if the employer proposes a different bargaining unit from that described in the application for
certification, the employer’s estimate of the number of individuals in the bargaining unit the employer
proposes
Deadline for notice – 8.1(3): A notice under subsection (1) must be given within two days (excluding
Saturdays, Sundays and holidays) after the day on which the employer receives the application for
certification
Sealing of ballot boxes – 8.1(4): If the Board receives a notice under subsection (1), the Board shall
direct that the ballot boxes from the representation vote be sealed unless the trade union and the
employer agree otherwise
Board determinations, etc. – 8.1(5): The following apply if the Board receives a notice under subsection
(1):
25
1. The Board shall not certify the trade union as the bargaining agent or dismiss the application for
certification except as allowed under paragraph 2 or as required under paragraph 8
2. If the Board did not direct that the ballot boxes be sealed, the Board may dismiss the application
for certification
3. Unless the Board dismisses the application as allowed under paragraph 2, the Board shall
determine whether the description of the bargaining unit included in the application for
certification could be appropriate for collective bargaining. The determination shall be based
only upon that description.
4. If the Board determines that the description of the bargaining unit included in the application
for certification could be appropriate for collective bargaining, the Board shall determine the
number of individuals in the unit as described in the application.
5. If the Board determines that the description of the bargaining unit included in the application
for certification could not be appropriate for collective bargaining,
i. The Board shall determine, under section 9, the unit of employees that is
appropriate for collective bargaining, and
ii. The Board shall determine the number of individuals in that unit
6. After the Board’s determination of the number of individuals in the unit under paragraph 4 or 5,
the Board shall determine the percentage of the individuals in the bargaining unit who appear to
be members of the union at the time the application for certification was filed, based upon the
Board’s determination under paragraph 4 or 5 and the information provided under subsection
7(13)
7. If the percentage determined under paragraph 6 is less than 40 per cent, the Board shall dismiss
the application for certification and, if the ballot boxes were sealed, the Board shall direct that
the ballots be destroyed without being counted
8. If the percentage determined under paragraph 6 is 40 per cent or more,
i. If the ballot boxes were sealed, the Board shall direct that the ballot boxes be
opened and the ballots counted, subject to any direction the Board has made
under subsection 8(7), and
ii. The Board shall either certify the trade union or dismiss the application for
certification
Unusual Process (Contested Application)




Vote is held with OLRB officer, union scrutineer and employer scrutineer in attendance
People show up to vote and challenged individuals are segregated
Typical challenged include:
o Individual is not an employee at date of application
o Individual not an employee in the bargaining unit
o Individual is an excluded employee under the LRA
If challenges are numerically significant or material, OLRB will do nothing until the challenges
are resolved by the parties or the OLRB at a hearing – essentially a mediation
26
Timeliness & Time Bars
 Basic principle: union may apply at any time to be certified as bargaining agent for a unit of
employees not already covered by collective bargaining
 Exception – bars to certification
o Bars balance competing needs – stability in collective bargaining, getting rid of
underperforming bargaining agent, limit the disruption certification drives cause to the
workplace
o If union failed in previous attempts or withdrew application, union barred for a certain
period
 In a raid situation (where employees already unionized) there are tighter bars to a certification
application by the raiding union
o No raids for twelve months following certification (may be extended by conciliation,
strike or lockout)
o Voluntarily recognized unions enjoy less protection than certified ones
o “open season”: another union or employees can apply to terminate current union’s
bargaining rights during certain periods:
 Last 3 months of collective agreement
 Additional periods in the case of exceptionally long collective agreements
(where agreement longer than 3 years)
o Decertification applications by employees are subject to the same timeliness
requirements as applications by raiding unions. If sufficient evidence that employees no
longer support the union, Board will order a decertification vote
Application for certification – 7(1): Where no trade union has been certified as bargaining agent of the
employees of an employer in a unit that a trade union claims to be appropriate for collective bargaining
and the employees in the unit are not bound by a collective agreement, a trade union may apply at any
time to the Board for certification as bargaining agent of the employees in the unit
Same – 7(2): Where a trade union has been certified as bargaining agent of the employees of an
employer in a bargaining unit and has not entered into a collective agreement with the employer and no
declaration has been made by the Board that the trade union no longer represents the employees in the
bargaining unit, another trade union may apply to the Board for certification as bargaining agent of any
of the employees in the bargaining unit determined in the certificate only after the expiration of one
year from the date of the certificate
Same – 7(3): Where an employer and a trade union agree that the employer recognizes the trade union
as the exclusive bargaining agent of the employees in a defined bargaining unit and the agreement is in
writing signed by the parties and the parties have not entered into a collective agreement and the Board
has not made a declaration under section 66, another trade union may apply to the Board for
certification as bargaining agent of any of the employees in the bargaining unit defined in the
recognition agreement only after the expiration of one year from the date that the recognition
agreement was entered into
27
Same – 7(4): Where a collective agreement is for a term of not more than three years, a trade union
may apply to the Board for certification as bargaining agent of any of the employees in the bargaining
unit defined in the agreement only after the commencement of the last three months of its operation
Same – 7(5): Where a collective agreement is for a term of more than three years, a trade union may
apply to the Board for certification as bargaining agent of any of the employees in the bargaining unit
defined in the agreement only after the commencement of the 34th month of its operation and before
the commencement of the 37th month of its operation and during the three-month period immediately
preceding the end of each year that the agreement continues to operate thereafter or after the
commencement of the last three months of its operation, as the case may be

Basically, in the last three months of the third year of the collective agreement (in one that is
longer than 3 years) and during the three month period immediately preceding the end of each
year that the agreement continues to operate
Bar to reapplying – 7(9): Subject to subsection (9.1), if the trade union withdraws the application before
a representation vote is taken, the Board may refuse to consider another application for certification by
the trade union as the bargaining agent of the employees in the proposed bargaining unit until one year
or such shorter period as the Board considers appropriate has elapsed after the application is withdrawn
Mandatory bar – 7(9.1): If the trade union withdraws the application before a representation vote is
taken, and that trade union had withdrawn a previous application under this section not more than six
months earlier, the Board shall not consider another application for certification by any trade union as
the bargaining agent of any employee that was in the bargaining unit proposed in the original
application until one year has elapsed after the second application was withdrawn
Exception – 7(9.2): Subsection (9.1) does not apply if the trade union that withdrew the application is a
trade union that the Board is prohibited from certifying under section 15
Same – 7(9.3): Despite subsection (9.1), the Board may consider an application for certification by a
trade union as the bargaining agent for employees in a bargaining unit that includes an employee who
was in the bargaining unit proposed in the original application if,
(a) the position of the employee at the time the original application was made was different
from his or her position at the time the new application was made; and
(b) the employee would not have been in the bargaining unit proposed in the new application
had he or she still been occupying the original position when the new application was made
Same – 7(10): If the trade union withdraws the application after the representation vote is taken, the
Board shall not consider another application for certification by any trade union as the bargaining agent
of any employee that was in the bargaining unit proposed in the original application until one year after
the original application is withdrawn
28
Bar to reapplying – 10(3): If the Board dismisses an application for certification under this section, the
Board shall not consider another application for certification by any trade union as the bargaining agent
of any employee that was in the bargaining unit proposed in the original application until one year after
the original application is dismissed
IUOE v. Beamish Construction (2007) OLRB
Note: Labour laws in the construction industry are a little different, rules are similar to that of the old
Bill 40 where with 55% membership cards or more, the union can be automatically certified
Facts: August 11, 2005 the union filed an application for certification following which there were a
number of status disputes. The employer raised a number of disputes pertaining to the status of certain
employees in the bargaining unit. There was lengthy litigation on these points and the OLRB issued a
ruling in November 2006 stating that the employer was largely successful. As a result the membership
cards were brought below 55% but not below the 40%. It was understood that a representation vote
would be the next step but before that could take place, on November 30, 2006 the union withdrew the
2005 application and filed a new application
Issue: Should the 2006 application be barred for a year?
Decision: Board used its discretion to impose a 6 month bar on certification applications
Reasons: The employer argued that the union was only withdrawing their application because they
knew that if a representation vote was held they would lose and so they were trying to start the process
anew and look to sign up 55% of people. Employer took issue with the statutory freeze – employer had
already endured a 14 month statutory freeze because of the initial 2005 application. The union argued
that there are exceptions to the statutory freeze and that employment terms could have been
negotiated with the union had the employer come to them. Union argues that the fact that the
employer never came to them demonstrates that the statutory freeze was not actually an issue for
them. S.128.1(21) deals with the construction industry and basically draws on s.7(9) which states that if
the union withdraws the application before the representation vote is taken the board may refuse to
consider another application until 1 year after the application is withdrawn. The union argued that this
provision is discretionary and should not be applied here. The OLRB ruled that the persuasive fact was
the late stage in the proceeding in which the union withdrew the 2005 application and that the only
reason why the union withdrew (that can be inferred from the circumstances) was that they realized
they would likely be defeated in the vote.
Curran: my suspicion is that the union believed that if the vote was held, the employees would more or
less view the union as somewhat weak and ineffectual in light of how long the application process had
been going on. Another reason is that the union in this case (and in many cases) believed they had a
better change of persuading employees to sign membership cards than to vote yes in a confidential vote
because there is more opportunity for face to face persuasion by the union and fellow employees.
29
Status & Exclusions
Line between Employee and Contractor



Four part test (Winnipeg Free Press, 1999 MLRB)
1. Control of the relationship
2. Ownership of the tools
3. Chance of profit
4. Risk of loss
Dependent contractors are employees under the OLRA
o Definitions – 1(1): In this Act, “dependent contractor” means a person, whether or not
employed under a contract of employment, and whether or not furnishing tools,
vehicles, equipment, machinery, material, or any other thing owned by the dependent
contractor, who performs work or services for another person for compensation or
reward on such terms and conditions that the dependent contractor is in a position of
economic dependence upon, or under an obligation to perform duties for, that person
more closely resembling the relationship of an employee than that of an independent
contractor;
o Main concern is whether or not the contractor is in a position of economic dependence
– there is not uniform test for economic dependence, you just have to look at the facts
and try to make an argument
o Act will typically err on the side of considering people dependent contractors and
allowing them to fall within the Act
Should the following have access to collective bargaining?
o Student nurses, medical residents and interns, articling students, prison inmates,
participants in training programs and government funded job creation programs
o Complaint filed with the ILO regarding mandatory training programs for welfare
recipients – program expressly excluded participants from forming unions and having
collective bargaining rights. The ILO ruled this was improper but the government has not
acknowledges or responded to this ruling
Teamsters and Tecumseh 1998 OLRB
Facts: volunteer fire fighters were trying to certify under the OLRA. Fire fighters were paid based on the
amount of work they did (i.e. number of calls they responded to) and did receive benefits but were not
provided with a regular salary. The benefits were not contingent on the number of calls they responded
to. There was a lack of regular work and the fire fighters had a certain degree of autonomy (they could
choose whether or not they went in for training and whether or not they responded to a particular call).
The fire department did have the ability to impose discipline and direct the work of the fire fighters
during a call. Testimony of the fire chief was that if a fire fighter blew off training or calls on a regular
basis that would be cause for discipline.
Issue: Were the volunteer fire fighters volunteers for the purposes of the Act?
30
Decision: OLRB ruled that they were in fact employees – this group appeared to be closer to an
employee than volunteer. There were no full time fire fighters on staff and this was the only way that
the municipality was providing an essential service. The board ultimately certified the fire fighters.
IUOE v. TWD, 2009 OLRB
Facts: TWD does winter road maintenance. There were a bunch of individuals who had seasonal
contracts of employment with TWD to drive trucks (agreed to be on call 24/7 and would be called in if
there was a certain amount of snow). The union filed for certification on April 13, 2007. The date is
critical because it froze the bargaining unit in terms of employees at the time. Both the union and the
company disputed who was in the BU. OLRB handles this by going ahead with the vote and segregating
the disputed ballots. The union claimed that two employees were not in the BU (Barry and Dore). The
evidence showed that they were first hired by TWD in the 2006/2007 winter season and worked very
few hours. They received no hours in March or April. Union claimed that it was clear that they were no
longer working as employees. However, the employer said that was incorrect because their employment
contracts did not end until April 15, 2007. Company claimed there were 6 employees that should not be
considered part of the BU because their short term employment contracts had expired at the beginning
of April. The union argued that these 6 employees had worked for TWD for multiple seasons and had a
reasonable expectation to be hired back each winter season. These 6 employees were very significant
because the bargaining unit was small and without their membership cards the union would not meet
the minimum 40%.
Issue: Did the union get over the 40% threshold thereby entitled it to a representation vote (s.8) and if
so, whose ballots should be counted?
Decision: OLRB ruled that the 6 individuals the company challenged were included in the bargaining
unit. Other 2 individuals are irrelevant because they did not show up to vote.
Reasons: Those 6 employees had a pattern of regular employment and there was an expectation on
both the part of the employer and the employees that they would be rehired each winter. The board
admitted that for other labour relations purposes those 6 individuals would not be considered
employees for the purposes of the Act (i.e. benefits, workers compensation). Board took a purposive
approach in determining that those 6 individuals should have a say in whether the union represented
the bargaining unit or not. Employer argued that based on a material s.8.1 the union did not have the
required 40% to entitle them to a vote based on the fact that those 6 individuals should not be part of
the bargaining unit. The s.8.1 objection is only with respect to the 40% and the board’s decision to
segregate the votes of those individuals is separate matter. The board had also decided to seal the ballot
box at the time of the s.8.1 objection was raised. Had the employer won this objection, the ballot box
would have been destroyed because the union would not have been entitled to that vote in the first
place. Because the employer did not succeed on this challenge, the union was entitled to the vote and
the board was able to unseal the ballot box and count the votes. Once these 6 individuals were part of
the bargaining unit the union was eligible for a vote and so the concern of the other 2 individuals did not
need to be decided for the purpose of the s.8.1 objection. The two individuals did not actually show up
31
to vote and so neither party ultimately needed to decide whether or not they were a part of the BU for
the purposes of the vote.
Note: Once the ballot box is opened, the board would then count all of the ballots that were not sealed
and determine whether out of the total number of ballots there were enough unsealed ballots for it to
be unnecessary to open the sealed ballots and resolve the issue of the status dispute at the time of the
vote. If there were enough unsealed votes to make the 50% +1, the sealed ballots would simply be
destroyed and not counted. If there was not enough, the board would open the sealed ballots of the 6
individuals. The reason for not opening the sealed ballots unless it is necessary is because those ballots
have the potential to compromise the anonymity of those 6 individuals. If it came back that all 6 sealed
voted were in favour of unionization the employer would know that those 6 individuals voted yes and
could potentially make employment matters difficult for them.
Excluded Employees
s.1(3): For the purposes of this Act, no person shall be deemed to be an employee,
(a) who is a member of the architectural, dental, land surveying, legal or medical profession entitled to
practice in Ontario and employed in a professional capacity
(b) who, in the opinion of the Board, exercises managerial functions or is employed in a confidential
capacity in matters relating to labour relations



Rationale is that these professionals have professional duties that would trump the interests of
the union and would hinder the effectiveness of collective bargaining
Also excludes managers as unions have historically not wanted managers as members because
of the risk that they will exercise employer influence on the employees. Employers have
historically not wanted managers as union members because of the concern that their decisions
and actions will be sympathetic to the union and not the interests of the company.
The exclusion of individuals dealing in a “confidential capacity in matters relating to labour
relations” has been interpreted very narrowly.
o Employee must have regular involvement in confidential matters and not just access. If
only access was enough, a janitor could be excluded as working in a confidential
capacity.
o Three part test: (1) do the person’s duties involve labour relations activities, information
or handling? (2) Does the involvement incur on a regular basis? (3) Would disclosure of
the information adversely affect the employer?
Children’s Aid Society v. Ottawa-Carlton, 2001 OLRB
Facts: The supervisors of the Children’s Aid Society wanted to unionize as a bargaining unit separate and
independent from the bargaining unit of the social workers and counsellors. Social Workers &
counsellors were covered by OPSEU. Up the chain of command it then went supervisors and assistant
directors – directors – directors of service – executive director
32
Issue: Are the supervisors considered management and thereby excluded from the OLRA?
Decision: Supervisors are a part of management and thereby excluded from the OLRA.
Reasons: In Ontario, when you are looking at managerial functions you are looking at functions with
respect to human resources and labour relations (things like finance are not relevant). Board held that
these supervisors played a role in hiring and promoting staff, despite not making the final decision.
Union argued that they only made recommendations. However, this met the test of effective
recommendation/effective determination which holds that when assessing effective recommendation,
it is necessary to show that the recommendations are really effective so that in practice and to a
substantial degree they become the effective decision maker. In this case, the recommendations of the
supervisors were regularly followed and implemented. The supervisors played a significant role in
discipline and discharge.
Note: The factors discussed above are what the OLRB focuses on in determining whether or not a group
of individuals is excluded from the status of employee for union purposes. The purpose is to prevent
conflicts of interest and divided loyalty. This concern is applicable even when the individuals who want
to certify are in their own bargaining unit. Decisions could be made by the supervisor bargaining unit
that would benefit their own unit and negatively impact the unit of social workers and counsellors.
Who is the Employer?
Point-Claire v. Quebec, 1997 SCC
Facts: temp agency pays the employees, provides training, and would be responsible for terminating an
underperforming employee. The temp agency certainly has some indications of being an employer but
the clients of the agency also have some indications in that they direct the work of the employee.
Agency provided recruitment, selection and career development. Agency provided employees to the city
of Point-Claire. Agency paid wages and made statutory deductions (QPP, taxes, workers comp, etc.). This
case involved an employee named Lebeau who had two assignments at the city. The city liked the work
of Lebeau and ultimately agreed to hire her on a full time basis. The union that represented the
employees of the city said that Lebeau should be considered an employee within the bargaining unit
(even during periods of her temporary work).
Issue: Is the temp agency or the client of the agency (city) considered the employer of the temporary
contract employees? Should Lebeau be considered an employee within the bargaining unit?
Decision: Labour court judge ruled that the city was the real employer focusing on who had control over
the working conditions and work performance. Even though the pay was coming from the temp agency,
it was really driven by the city. Board set a low bar for determining that the client of the temp agency
should be viewed as the employer. SCC ruled that the reasoning and decision of the trial judge were not
patently unreasonable.
Reasons: Board had to consider which body exercised the most direct control over Lebeau’s work,
including: selection process, hiring, discipline, evaluation, supervision, assignment of duties,
33
remuneration and integration into the business. The city had the ability to direct work of the employee,
determine how many hours she got and indirectly controlled things like discipline and discharge – had
the ability to send the employee back to the agency. Lebeau was really subordinate to the city. Temp
agency tried to argue that complying with the collective agreement would be problematic and that for
the purposes of the labour relations statute (other than the labour code) the temp agency is considered
the employer. The court said that the collective agreement realistically only required the temp agency to
pay the employee a certain wage. In terms of the different statutes the board found that the differences
in statutes did not create an actual inconsistency and did not prevent any of the parties from complying
with their obligations
Note: Ontario has said the focus is on the fundamental control over working conditions
Related Employers


Union needs to bargain with company with real control
Many Canadian jurisdictions provide that labour boards may consider related employers as one
employer for the purposes of bargaining units and collective bargaining
o Example: say you have a company owned by one person and there is a union certified to
represent the employees of the company. The owner of the company then incorporates
a new company and hires employees who are not unionized. All of the employees
perform essentially the same kind of work. As new clients and contract come in, the
owner begins directing the work more and more towards the non-unionized company to
the point that work ceases for the unionized company and employees are let go.
o This did happen historically and eventually the union would lose its bargaining rights.
There was recognition that you needed to go beyond corporate structure and take a
more flexible approach for the purpose of labour relation.
Same – 1(4): Where, in the opinion of the Board, associated or related activities or businesses are
carried on, whether or not simultaneously, by or through more than one corporation, individual, form,
syndicate or association or any combination thereof, under common control or direction, the Board
may, upon the application of any person, trade union or council of trade unions concerned, treat the
corporation, individuals, firms, syndicates or associations or any combination thereof as constituting one
employer for the purposes of this Act and grant such relief, by way of declaration or otherwise, as it may
deem appropriate.
Duty of respondents – 1(5): Where, in an application made pursuant to subsection (4), it is alleged that
more than one corporation, individual, firm, syndicate or association or any combination thereof are or
were under common control or direction, the respondents to the application shall adduce at the hearing
all facts within their knowledge that are material to the allegation.
Three Preconditions under Section 1(4)
1. There is more than one enterprise (and employer) involved;
2. The enterprises are associated or related; and
34
3. The enterprises are under common control or direction
 The enterprises must be distinctly different
o Example: Air Canada created a budget subsidiary – this would not be the same issue
because they are not distinctly separate enterprises. It’s the same enterprise and Air
Canada has just created a separate bargaining unit for the discount airline employees
 The intention of the corporation/employer is not relevant – even if the corporation is not
attempting to avoid bargaining rights, the board can still consider related corporations as one
for the purposes of the Act.
 Both enterprises will be treated as one and will be bound by the collective agreement.
White Spot Ltd. v. BCLRB, 1997 SCJ
Facts: White Spot sold Langley restaurant to a franchisee and claimed that the franchisee was a
successor employer and that Langley’s employees were not in a separate bargaining unit. White Spot
had substantial control over menu prices and food items. Franchisee was required to use White Spot
suppliers and delivery company. Franchisee was obligated to pay a marketing fee and employ a White
Spot trained general manager. White Spot imposes standards. Successor employer provision provided
that when a successor employers steps into the shoes of the previous employer the collective
agreement still applies to the successor employer. The collective bargaining agreement among all of the
White Spot employees continued to apply but the claim was that the Langley employees were not in a
separate bargaining unit and needed to negotiate with the franchisee rather than White Spot. Union
was concerned about losing the bargaining power of a larger bargaining unit and the ability to negotiate
with White Spot directly and therefore tried to have the successor employer rule applied.
Decision: BCLRB concluded that White Spot and franchisee under “common control and direction”.
White Spot sought judicial review. Board decision not patently unreasonable
Reasons: Board was influenced by the single bargaining unit structure previously. Board found that
White Spot dominated the franchise relationship. Effective bargaining by union required negotiating
with White Spot. “Common control and direction” extends to dominant control exercised by a franchisor
under franchise agreement with independent franchisee. Important facts in the decision were the
degree of control White Spot exercised over the franchisee i.e. menu prices, general manager,
marketing free, White Spot standards and suppliers
What Constitutes a Trade Union?
Definitions – 1(1) In this Act, “trade union” means an organization of employees formed for the
purposes that include the regulation of relations between employees and employers and includes a
provincial, national, or international trade union, a certified council of trade unions and a designated or
certified employee bargaining agency


There are many organizations that have morphed into unions and if they were required to show
they fulfilled the procedures it would be impossible for them to exist
That is why the OLRB says that it is just one procedure they must satisfy (see USW v. Kubota)
35
o
However, it is a gold standard procedure – if a union creating itself now follows these
procedures it is almost guaranteed to be considered a union
USW v. Kubota, 1995 OLRB
Facts: USW obtained signed membership cards for most employees and applied for certification.
Employees Association Committee had a 20 year history of negotiating agreements but had no
constitution, no assets, and no employee members. The Association Committee opposed USW’s
application.
Issue: Should the Employee Association Committee be considered a union?
Decision: The Employee Association Committee is not a union
Reasons: One procedure to become a trade union:
1.
2.
3.
4.
5.
A drafted constitution
Constitution approved by employees
Employees attending meeting should be admitted to membership
Constitution ratified by members
Officers elected according to constitution
Contractual relationship must be created and maintained in writing.
University of Toronto Faculty Association (UTFA) v. St. Mike’s, 2011 OLRB
Facts: Faculty associations have historically been hesitant to call themselves trade unions because they
do not want to associate with the blue collar nature of unions. UTFA negotiated memorandum with U of
T which were analogous with collective agreements. UTFA has a constitution and bylaws, meets
regularly and has duly elected officers. UTFA never sought certification with regards to U of T but
applied for certification of St. Mike’s. The words, “regulation of relations between employees and
employer” were not in the constitution of UTFA, and the OLRB has said that trade union constitutions
should contain this working. However, there stated purpose was to “promote the welfare of the current
and retired faculty, librarians, and research associates” which was analogous to the wording suggested
by the OLRB.
Issue: Trade union status of UTFA
Decision: UTFA is a trade union under the OLRA
Reasons: UTFA had a long history of being a successful organization for labour relations purposes. UTFA
had successfully negotiated terms of employment on numerous occasions for faculty of U of T. UTFA had
a constitution, which it followed, had elected officers and regular meetings. The board was careful to
state that the 5 step guideline is NOT a requirement and that the lack of exact phrasing was not fatal
and the lack of UTFA certification in U of T relationship not relevant.
36
Employer Influence
What unions not to be certified – 15: The Board shall not certify a trade union if any employer or any
employer’s organization has participated in its formation or administration or has contributed financial
or other support to it or it if discriminates against any person because of any ground of discriminated
prohibited by the Human Rights Code or the Canadian Charter of Rights and Freedoms


Management interference with unions is prohibited by the OLRA as an unfair labour practice
Prohibitions pose problems for spread of unionization outside the blue collar context
o With changes in the world of work, employees increasingly have responsibilities and
input related to decision making and there is a growing blur between employees and
management.
o Labour Relations Boards increasingly hesitant to rule that an organization is not a “trade
union” due to the presence of managerial employees
 Those managers may ultimately not be allowed to be included in a collective
agreement but there mere presence is not reason enough to restrict declaring
an organization is a trade union
Requirements for an Appropriate Bargaining Unit
General Principles:






Defined on the basis of employer and positions
All employees or a subset
One or more locations
1 union, 1 employer (usually)
Two functions:
o Electoral constituency
o Collective bargaining
“Community of interest”
o OLRB has softened on the requirement of community of interest
Consequences of BU Formation



A broadly defined unit may lead to wage compression, uniformity and inferior terms and
conditions for those with human capital
o Combining a fewer higher skilled workers with many lower skilled workers results in the
union representing the majority interests and the typical result it that the lower skilled
workers receive higher wages than they usually would and the higher skilled workers
receive lower wages than they normally would
Multiplicity of bargaining units might lead to jurisdictional disputes
Design of bargaining units affects:
o Degree of economic pressure and bargaining power
o Frequency and impact of strikes
37
o
Comparisons
 The larger the bargaining unit, the more difficult it will be to find a comparable
bargaining unit to compare with and follow
Voluntary Delineation


Voluntary recognition
o Where employer recognizes the union and they agree on what the bargaining unit will
be
o Safeguards for employees who are either included or excluded from the bargaining unit
and disagree with it being structured as such – ultimately, the OLRB makes the
determination of the appropriate bargaining unit
o Note: public sector legislation often expressly defines the bargaining unit
Union and management can negotiate a modification to bargaining unit in collective bargaining
OLRB Delineation


Board decides whether union’s proposed bargaining unit, or a variation, is appropriate for
collective bargaining
Two widely accepted (and sometimes confliction) criteria:
o Community of interest
o Preference for “all employee” units – the more employees included in the BU the better
the chances that the collective bargaining mechanism will be successful and employees
will have their rights and interests recognized
Metroland, 2003 OLRB
Facts: Metroland had a paper in Midland (10 employees). There was a sales department consisting of 3
ad representatives and one telemarketing representative. All of the individuals were full time
commission employees. There was also a distribution department that took care of the operational
aspects of the newspaper and included an employee named Walker. These individuals were full time (no
commission). There were also part-time employees (who worked somewhat consistent hours but could
be sent home if there was no work) and temp employees (called in during busy periods). The part-time
employees and temps had a written contract that set out the terms of their work and had significantly
inferior benefits to those employees in the sales and distribution offices. There were also co-op students
that worked at the paper from time to time. Union wanted to represent all of the employees of the
paper and the employer said that the appropriate bargaining unit was only the sales and distribution
departments because the part-time and temps were a contingent work force without benefit plans and
therefore should be excluded. The part-timers, temps and co-op students did not have the same
community of interest as the sales and distribution employees. Employer also argued that the co-op
students should not be considered employees. Walker came forward, with the support of the other
distribution employees, and argued that they should be in a bargaining unit separate from the sales
department because their work was different and they were not paid on a commission basis.
Issue: What is the appropriate bargaining unit?
38
Decision: In this case, the bargaining unit should include everyone. Board did express doubts as to
whether the co-op students were in fact employees under the Act but in terms of the sales, distribution,
part-time and temp employees, the Board found that despite their differences in roles and pay
structure, they should all be included in one bargaining unit.
Reasons: There has historically been a two part test for determining the appropriate bargaining unit: (1)
sufficient community of interest (note that sufficient seems less than complete community of interest)
and (2) No “serious labour relations problems for the employer”. OLRB focused on the fact that this was
a unit of only ten employees and they didn’t want to fragment it into several different bargaining units.
The Board tends to favour larger, broad units. The two parts of the test have merged. Generally,
employees will be assumed to have a sufficient community of interest unless there are serious labour
relations problems for the employer. OLRB is referring to concerns such as where the employer has
several employees that are absolutely critical to their business and scarce in the workplace and the rest
of the employees are not. The employer needs to be very flexible with those employees in order to
retain them. The employer might argue that in order to be able to run their business they need to have
those specific employees as a separate bargaining unit. But note that the Board will not bend on this
issue lightly, it is a very high bar that the employer must establish in terms of the need to be flexible
with the highly skilled rare employees.
Bargaining Unit Determination and Organizing


The two main functions often conflict: electoral district (short term) and collective bargaining
(long term)
Banks: a high proportion of females working in clerical jobs
o Resisted unionization – claimed that the whole bank was the appropriate bargaining
unit
 Employers believe claiming this will make organization difficult. However, if the
banks were successful in organizing, having all the branched as one bargaining
unit would prove highly problematic for the employer because of the bargaining
power the unit would hold
o Women became frustrated because they had difficulty unionizing. Unions were not
interested in representing women at the banks, partly because of sexism and partly
because the unions typically dealt with industrial workers.
 Women create the Service, Office and Retail Workers’ Union of Canada and
applied to certify many branches
SORWUC v. CIBC, 1997 CLRB
Facts: SORWUC attempted to unionize a number of branches. Bank responded stating that it was not
appropriate to have branch by branch organization because the bank seeks to maintain standardized
procedures and uniformity of employment procedures. The bank was concerned with administrative
efficiency and convenience in bargaining, administrative convenience for lateral mobility of employees,
common employment conditions, and a reduction in the number of possible strikes. Banks also claimed
39
this was in the public interest – bargaining units at each branch would result in branch shut downs and
people in smaller communities would not be able to access their funds.
Issue: Should the bargaining unit be all of the branches or should each branch be a separate bargaining
unit?
Decision: The appropriate bargaining unit is each individual branch
Reasons: Canada Labour Relations Board ruled that branch wide bargaining unit could facilitate
administrative efficiency and employee mobility. While this structure might be slightly less convenient
for the bank, it was not unworkable by any stretch. Board rejected the bank’s argument that chaos
would ensue by certifying individual branches. Board found that the employees of a single branch had a
“community of interest”.
Aftermath: By 1980 the union lost all of its certifications and was unable to secure a collective
agreement for any of the branches. The bank committed what are now considered to be unfair labour
practices – refused to negotiate on a multi-branch basis thereby limiting the bargaining power of the
union, only extended automatic annual pay raises to the non-unionized branches, etc.
Reasons for Failure: The cost of organizing on a branch to branch basis increased the bargaining cost
massively and at the same time decreased bargaining power. Furthermore, because of transfers and
high turnover rates the union constantly had to convince people to unionize.
USW v. TD, 2005 CLRB
Facts: USW sought bargaining unit of all retail employees working in Sudbury (8 branches, 111
employees). TD argued that the bargaining unit should be each branch.
Decision: Board said that it was not required to define the most appropriate bargaining unit but rather
determine that the bargaining unit proposed by the union in in fact an appropriate one. The Board
claimed a degree of discretion in bargaining unit determination – needs to be based on the
circumstances of each particular case. Board stated it is not bound by the concept of stare decisis –
historically, the Board has said that an individual branch was an appropriate bargaining unit but the
Board claimed it could not be bound by this as an absolute rule. The employees work in a general
geographical area and the working conditions at the 8 branches are sufficiently similar to justify a single
bargaining unit. Bargaining units are not configured to accommodate the employer’s administration
structure but are configured to give the employees bargaining rights. Need to demonstrate majority
support at each individual branch.
Curran: There is still the requirement of avoiding undue labour relations problems for the employer but
the Board is stating that administrative structure and administrative inconvenience on the part of the
employer is not going to be a factor for consideration in the determination of the appropriate bargaining
unit.
40
Statutory Representation in the Public Sector
Teachers: Local Bargaining in Ontario





“local bargaining” – collective agreement is negotiated at the school board level
o A separate collective agreement is bargained in each school district
o Parties to collective agreement are the school board and local teachers’ bargaining
agent
In Ontario, there is a combination of statutes governing labour relations in the education sector
o General education legislation (The Education Act) and there is also the Provincial OLRA
that governs partially
 The Education Act contains provisions that relate specifically to the teaching
collective bargaining regime and in part is an attempt to make labour relations
less acrimonious in the education sector (though this hasn’t necessarily been
the case)
 OLRA applies where issued have not been specifically addressed in The
Education Act. So long as its application is consistent with TEA the OLRA applies
and fills in some of the gaps
A typical two tier system involves some negotiation at the local level and some of the provincial
level
o Bargaining takes place at the local level but the structure of the teachers’ bargaining
agent is provincial and not local
o In practice, local affiliates are actively involved in collective bargaining with support
from the provincial associations
Local bargaining does not imply that the education system is locally funded by local tax revenues
or levies
o Ontario system is funded by the Provincial government
o Historically, bargaining was truly at the local level and school boards had the ability to
levy certain taxes and acquire certain funds for themselves and therefore had a lot more
control over what they could and couldn’t negotiate
 In the late 1990’s the PC government of Mike Harris introduced Bill 160 which
introduced changes to the teachers’ employment relationship
 Instruction time and preparation time was mandated through Bill 160
and therefore no longer subject to negotiation
 Also removed the ability of individual school boards to raise their own
funds and took that power back to the provincial government and
implemented a centralized funding formula
o This created a substantial amount of acrimony between the
government and the teachers
Potential advantages:
o Issues can be negotiated by parties who know each other and have an ongoing
relationship
41
o

Local concerns and differences can be properly addressed by coming up with solutions
that better meet their needs than those adopted at a higher level for multiple boards
Potential disadvantages:
o Imbalance of power in favour of teachers
 Teachers are represented by a provincial teachers association and often the
school boards themselves have not reached the same level of sophistication (in
terms of expertise sharing and assistance between school boards)
o Teachers’ organizations pursue goals and agendas for all provincial teachers and as a
result can lose sight of local interests
o Whip-sawing – association negotiates an agreement with one school board and then
uses the terms of that agreement as a justification for other boards adopting similar
agreements (coercive comparison)
o More labour disputes – as the number of collective agreements increases the number of
potential labour disputes too increases
o More bargaining costs
o Inequities in teacher compensation, benefits, working conditions, and student learning
Teacher Bargaining Agency
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In Ontario the statutory bargaining agent is designated under The Education Act, s.277.3(2)
Legislation makes no provision for changing the statutory designation
o In BC, PEI, and Nfld. the provisions allow for changes
o In AB, MN, PQ, and NB the bargaining agent is determined by certification
ETFO bargains for elementary teachers in the English public system
OSSTF bargains for all secondary teachers in the English public system
OECTA bargains for elementary and secondary teachers in English separate system
AEFO bargains for all elementary and secondary teachers in French public and separate systems
Principals, vice-principals, and other management staff are excluded from the bargaining units –
analogous to OLRA legislation excluding management
Membership in the provincial association is compulsory – Teaching Profession Act
Teachers Associations have two functions
o Professional development
o Collective bargaining representatives
Separate regulatory body (teacher credentials, discipline, other professional matters) – Ontario
College of Teachers
Education Act
Appropriate bargaining units, bargaining agents – 277.8(1): the teachers’ bargaining units shall be
deemed to be appropriate bargaining units
42
Certification of bargaining units – 277.8(2): Each designated bargaining agent shall be deemed to be
certified as the bargaining agent for the corresponding bargaining unit as specified in subsection
277.3(2), 277.4(3) or 4 or 277.7(1)
Same – 277.8(3): No trade union is entitled to apply for certification as the bargaining agent for a
teachers’ bargaining unit
Same – 277.8(4): No person is entitled to apply for a declaration that a designated bargaining agent no
longer represents the members of a teachers’ bargaining unit
Teachers’ bargaining units, district school boards – 277.3(1): Each district school board has the
following bargaining units:
1. One bargaining unit composed of every Part X.1 teacher, other than occasional teachers, who is
assigned to one or more elementary schools or to perform duties in respect of such schools all
or most of the time
2. One bargaining unit composed of every Part X.1 teacher who is an occasional teacher and who is
on the board’s roster of occasional teachers who may be assigned to an elementary school
3. One bargaining unit composed of every Part X.1 teacher, other than occasional teachers, who is
assigned to one or more secondary schools or to perform duties in respect of such schools all or
most of the time
4. One bargaining unit composed of every Part X.1 teacher who is an occasional teacher and who is
on the board’s roster of occasional teachers who may be assigned to a secondary school
Employer Bargaining Agency


Legal framework for employer bargaining agency tends to reflect the level at which negotiations
are held
In Ontario, the school board is the employers bargaining agent
o Four subsystems, each made up of “district school boards”
 English language public system (31)
 French language public system (4)
 English language Catholic system (29)
 French language Catholic system (8)
Non-Statutory Access to Collective Representation: Voluntary Recognition
Application for certification – 7(3): Where an employer and trade union agree that the employer
recognizes the trade union as the exclusive bargaining agent of the employees in a defined bargaining
unit and the agreement is in writing signed by the parties and the parties have not entered into a
collective agreement and the Board has not made a declaration under section 66, another trade union
may apply to the Board for certification as bargaining agent of any of the employees in the bargaining
unit defined in the recognition agreement only after the expiration of one year from the date that the
recognition agreement was entered into.
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UWU v. Pine Valley, 2007 OLRB
Facts: CCWU and Pine Valley enter into a Memorandum of Agreement (MOA) dated May 16, 2007
within which there was no reference to an exclusive bargaining unit. Several months later, UWU applied
for certification to which CCWU relied on the statutory bar to certification
Issue: Is the MOA a valid voluntary recognition agreement (VRA)?
Decision: Valid voluntary recognition agreement – statutory bar thus prevents UWU from going through
the certification process
Reasons: OLRA does not define voluntary recognition agreement. Determination lies in the words of the
MOA. S.7(3) does not requires particular language for voluntary recognition agreements but the
requirements must still be manifest. In this case, it was clear that the intention of the parties was for
CCWU to be the exclusive bargaining agent
Viatek v. IBEW, 2011 BCLRB
Facts: On May 28, 2004 the employer and the union signed a letter of understanding (LOU). Viatek
agrees to recognize the union and the union may cancel the LOU at any time. Later, the union and
employer and nine other companies entered into a 2005-2010 “standard agreement”. The union,
employers and other companies commenced next round of collective bargaining in July 2010. On
January 7, 2011, the union informed the employer it was cancelling the LOU. Union took the position
that Viatek was now non-union and that union members could not work there. The employer applied for
a declaration that the strike is illegal and an order for the union to return to the bargaining table.
Issue: Can union invoke letter of understanding and end bargaining relationship?
Decision: The LOU was clear on its face; the union has properly terminated the relationship
Reasons: Voluntary recognition relationships can be created in a variety of ways, including through a
LOU. Unions and employers can define conditions of commencement and end of relationship. LOU is a
foundational agreement which establishes the relationship. Voluntary recognition agreements are
different from collective agreements and certification relationships and a LOU is not necessarily contrary
to the Duty of Fair Representation or duty to bargain in good faith
OLRA Provisions
Termination of bargaining rights after voluntary recognition – 66(1): Where an employer and a trade
union that has not been certified as the bargaining agent for a bargaining unit of employees of the
employer enter into a collective, or a recognition agreement as provided for in subsection 18(3), the
Board may, upon the application of any employee in the bargaining unit or of a trade union representing
any employee in the bargaining unit, during the first year of the period of time that the first collective
agreement between them is in operation or, if no collective agreement has been entered into, within
one year from the signing of such recognition agreement, declare that the trade union was not, at the
time of the agreement was entered into, entitled to represent the employees in the bargaining unit.
44
Powers of Board before disposing of application – 66(2): Before disposing of an application under
subsection (1), the Board may make such inquiry, require the production of such evidence and the doing
of such things, or hold such representation votes, as it considers appropriate
Onus – 66(3): On an application under subsection (1), the onus of establishing that the trade union was
entitled to represent the employees in the bargaining unit at the time the agreement was entered into
rests on the parties to the agreement
Declaration to terminate agreement – 66(4): Upon the Board making a declaration under subsection
(1), the trade union forthwith ceases to represent the employees in the defined bargaining unit in the
recognition agreement or collective agreement and any collective agreement in operation between the
trade union and the employer ceases to operate forthwith in respect of them employees affected by the
application.
Freedom of Association: Revisiting Constitutionality Adequate Forms of
Collective Representation
RCMP Collective Representation
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Norm: Police associations with statutory authority to act as independent representatives of
members
o Statutory designation or certification
o All municipal and provincial/regional police forces covered by collective bargaining
legislation
o Collective bargaining legislation uses interest arbitration to resolve bargaining disputes
RCMP members: prohibited from unionizing, prohibited from other forms of independent
collective representation, excluded from collective bargaining legislation
1967 Public Service Staff Relations Act (PSSRA) established collective bargaining scheme for most
federal government and public sector workers
o PSSRA explicitly excluded RCMP members because of concerns about divided loyalty
and lack of obedience
Historically, federal government and RCMP Commissioners have opposed independent
employee representation
o Staff Relations Representation Programme (SRRP)
 Managerially controlled, non-union, exclusive form of representation
 SRRP is explicitly identified and recognized as the system and program of choice
for management-employee relations
 RCMP Regulations, s.96(1): “Force shall have a Division Staff Relations
Representative Program to provide representation of the interests of all
members with respect to staff relations matters”
 S.96(2): The Division Staff Relations Representative Program shall be carried out
by the division staff relations representative of the members of the division and
zones who elect them
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
The prime purpose of the SRRP is to promote mutually beneficial relations
between Force management and the wider membership. To such ends, the
SRRP is mandated to provide members across the RCMP with fair and equitable
representation in staff relations matters and to facilitate their participation in
the development and implementation of Force policies and programs
(Constitution, 2002: Article 2)
 “Participation” signifies meaningful consultation with RCMP in staff
matters.
 Final decisions remain with management – Commission has agreed to consider,
with SRRP Caucus, referring unresolved issues to a third party for advice – this
mechanism of referring matters to a third party has never come to pass in a
meaningful way though
o Structure of the SRRP
 SRRP organized to align with the management configuration
 Program carried out by elected representatives of the members (Called Staff
Relations Representatives [SRRs])
 National, Regional and Divisional Caucuses
 SRRP has a National Executive Committee (NEC)
o Duties of SRR
 Providing information, guidance, and support to RCMP members
 Representing RCMP members’ interests in “negotiations”
 There isn’t an actual formal mechanism for collective bargaining for the
RCMP – it is more a matter of SRRs attending meetings where managers
are discussing matters of interest to the RCMP
 Attend divisional management meetings
o Formal agreement between Commissioner and the SRRP provides that management
will:
 Recognize the role of the SRRP
 Respond to proposals and requests in a timely fashion
 Provide rationales for major decisions
Broader RCMP Labour Relations
o Pay Council established in 1996
 Neutral chair, 2 management representatives and 2 SRRP representatives
 Solicits input from RCMP members and gives recommendation on pay and
benefits to the Commissioner
 Pay council is based on consensus and collaboration but is does not equal
collective bargaining (Meredith, 2011 FC)
 Treasury Board holds ultimate authority to determine compensation
o In December 2008, Treasury Board reversed previously approved wages for 2009 to
2010
 No consultation with Pay Council
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
o
o
Federal Court ruled this a violation of Freedom of Association (Meredith, 2011)
and this was appealed to the SCC
Legal Fund
 Provides private legal representation for fund members
 Funded the RCMP members’ challenge in Meredith
 Regards itself as “part of the overall labour relations regime with the RCMP”
 May represent fund members in discipline, suspension, dismissal, civil or
criminal actions, or public complaints
Discipline and grievance systems
 Complex, regulated by: RCMP Act, Code of Conduct, RCMP Administration
Manual
 Discipline divided into 3 processes: suspensions, discharge and demotion, and
discipline
 External Review Committee – independent tribunal
 Grievance procedures permit members to grieve a decision, act or omission,
provided that there is no other redress process
Mounted Police Association of Ontario v. Canada, 2009 ONCA
Facts: Mounted Police Association of Ontario (MPAO) and British Columbia Mounted Police Professional
Association (BCMPPA) commenced Charter application challenging the validity of three labour relations
provisions. Canadian Police Association (CPA) and Quebec association (AMPMQ) intervened in support
of MPAO and BCMPPA. Legal fund intervened in support of AG. MPAO, BCMPPA, and AMPMQ are
independent private associations organized by individual RCMP members acting together. Associations
want to collectively bargain on behalf of RCMP members but the PSLRA expressly excludes regulatory
regimes for collective bargaining and therefore were not recognized by management. Section 41 of the
RCMP regulations provide that “a member shall not publicly criticize, ridicule, petition or complain about
the administration, operation, objectives or policies of the Force, unless authorized by law. This case
was decided after BC Health Services but before Fraser.
ONSC Decision: RCMP have a constitutional right to form an independent association for labour
relations purposes. S.96 of RCMP regulations was an unjustifiable violation of the Freedom of
Association protections under the Charter. Court made a declaration that s.96 is of no force and effect.
Declaration suspended for 18 months. Federal AG appealed to ONCA and the ON and BC associations
cross appealed on the grounds that s.2(1)(d) of the PSLRA is in violation of Freedom of Association and
s.41 of the RCMP regulations is a violation of Freedom of Expression
Issue: Does the right to collective bargaining under s.2(d) of the Charter (1) guarantee the right to be
represented by an association of the employees own choosing and (2) does it require that the vehicle by
structurally independent of management? Note: in the balance of the decision they framed the issues as
being: what is the content of the right to collectively bargain under s.2(d)?
Decision: Appeal allowed, cross appeal dismissed
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Reasons: Does s.96 of the Regulations, which creates the SRRP, violate s.2(d) of the Charter? Court
objected to an expansive definition of collective bargaining. The associations had not shown that the
exercise of RCMP members’ FOA was “effectively impossible”. RCMP members have been able to form
voluntary associations – existence of the SRRP and the legal fund. Does s.96 constitute and unfair labour
practice that is prohibited by s.2(d) of the Charter? No, the application judge didn’t appreciate the
derivative nature of the right to collective bargaining; the right must exist before finding an unfair
interference. Does the exclusion of the RCMP from the PSLRA violate s.2(d) of the Charter? No, it is not
effectively impossible for the RCMP to associate collectively to achieve workplace goals. There is no
positive obligation on the government to include RCMP in the PSLRA labour relations regime. Also, this
issue was already decided in Delisle. Does s.41 of the Regulations violate s.2(d) of the Charter? This
argument was not fully raised before the ONSC and therefore there was no error in the ONSC decision.
Derivative right to collective bargaining is not a standalone right. Right arises only in circumstances
where it is a “necessary precondition” to the exercise of the fundamental freedom. A positive obligation
to engage in good faith bargaining will only be imposed on an employer when it is effectively impossible
for the workers to act collectively to achieve workplace goals
Conclusion: Significant setback for several RCMP associations. Where there is a positive obligation to
collective bargaining asserted, the derivative right conception introduces the “effectively impossible”
requirement. Neither voluntariness nor independence is necessary for FOA. FOA satisfied through a
variety of co-existing entities.
Note: SCC appeal scheduled for February 18, 2014
Unfair Labour Practices
Introduction
Freedoms
Membership in trade union – 5: Every person is free to join a trade union of the person’s own choice
and to participate in its lawful activities
Background
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
A number of employer (and some union) activities are unlawful during union organizing
o Interference with employees’ right to freely choose whether or not to be unionized
o Called “unfair labour practices” or ULPs
o ULPs develop as a result of resistance by employers
Does employer interference matter?
o Some studies suggest that illegal employer tactics do not significantly affect the results
of representation elections (Getman, Goldberg, and Herman 1976)
o GGH (1976) study challenged by Weiler (1983) and others
 Based on small sample of average voters rather than focusing on election
verdict
48
o
Bentham (1998 & 2002)
 94% of employers engage in union avoidance
 88% frustrate union access to employees
 68% direct communications with employees
 29% tighten work rule/monitor employees
 12% admit to engaging in illegal action (ULPs)
Key Unfair Labour Practices Provisions
Prohibitions of Employers
70 – Employers, etc., not to interfere with unions: No employer or employers’ organization and no
person acting on behalf of an employer or an employers’ organization shall participate in or interfere
with the formation, selection or administration of a trade union or the representation of employees by a
trade union or contribute financial or other support to a trade union, but nothing in this section shall be
deemed to deprive an employer of the employer’s freedom to express views so long as the employer
does not use coercion, intimidation, threats, promises or undue influence
72 – Employers not to interfere with employees’ rights: No employer, employers’ organization or
person acting on behalf of an employer or an employer’s organization,
(a) Shall refuse to employ or continue to employ a person, or discriminate against a person in
regard to employment or any term or condition of employment because the person was or is a
member of a trade union or was or is exercising any other rights under this Act;
(b) Shall impose any condition in a contract of employment or propose the imposition of any
condition in a contract of employment that seeks to restrain an employee or a person seeking
employment from becoming a member of a trade union or exercising any other rights under this
Act; or
(c) Shall seek by threat of dismissal, or by any other kind of threat, or by the imposition of a
pecuniary or other penalty, or by any other means to compel an employee to become or refrain
from becoming or to continue to be or to cease to be a member or officer or representative of a
trade union or to cease to exercise any other rights under this Act
76 – Intimidation or coercion: No person, trade union or employers’ organization shall seek by
intimidation or coercion to compel any person to become or refrain from becoming or to continue to be
or to cease to be a member of a trade union or of an employers’ organization or to refrain from
exercising any other rights under this Act or from performing any obligations under this Act
77 – Persuasion during working hours: Nothing in this Act authorizes any person to attempt at the place
at which an employee works to persuade the employee during the employee’s working hours to become
or refrain from becoming or continuing to be a member of a trade union

Act does not provide an absolute prohibition of solicitation during work hours. S.77 is worded
such that it is not creating an automatic right to solicitation during work hours. Employers are
therefore free to implement a rule that there’s no solicitation during work hours but that rule
cannot specifically and only target unions.
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86(1) – Working conditions may not be altered: Where notice has been given under section 16 or
section 59 and no collective agreement is in operation, no employer shall, except with the consent of
the trade union, alter the rates of wages or any other term or condition of employment or any right,
privilege or duty, of the employer, the trade union or the employees, and no trade union shall, except
with the consent of the employer, alter any term or condition of employment or any right, privilege or
duty of the employer, the trade union or the employees,
(a) Until the Minister has appointed a conciliation officer or a mediator under this Act, and,
i. Seven days have elapsed after the Minister has released to the parties the report of a
conciliation board or mediator, or
ii. 14 days have elapsed after the Minister has released to the parties a notice that he or
she does not consider it advisable to appoint a conciliation board,
As the case may be; or
(b) Until the right of the trade union to represent the employees has been terminated, whichever
occurs first.
86(2) – Same: Where a trade union has applied for certification and notice thereof from the Board has
been received by the employer, the employer shall not, except with the consent of the trade union, alter
the rates of wages or any other term or condition of employment or any right, privilege or duty of the
employer or the employees until,
(a) The trade union has given notice under section 16, in which case subsection (1) applies; or
(b) The application for certification by the trade union is dismissed or terminated by the Board or
withdrawn by the trade union.
73(1) – No interference with bargaining rights: No employer, employers’ organization or person acting
on behalf of an employer or employers’ organization shall, so long as a trade union continues to be
entitled to represent the employees in a bargaining unit, bargain with or enter into a collective
agreement with any person or another trade union or a council of trade unions on behalf of or
purporting, designed, or intended to be binding upon the employees in the bargaining unit or any of
them.
73(2) – Same: No trade union, council of trade unions or person acting on behalf of a trade union or
council of trade unions shall, so long as another trade union continues to be entitled to represent the
employees in a bargaining unit, bargain with or enter into a collective agreement with an employer or an
employers’ organization on behalf of or purporting, designed or intended to be binding upon the
employees in the bargaining unit or any of them.
17 – Obligation to bargain: The parties shall meet within 15 days from the giving of the notice or within
such further periods as the parties agree upon and they shall bargain in good faith and make every
reasonable effort to make a collective agreement.
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82 – Unlawful lock-out: No employer or employer’s organization shall call or authorize or threaten to
call or authorize an unlawful lock-out and no officer, official or agent of an employer or employer’s
organization shall counsel, procure, support or encourage an unlawful lock-out or threaten an unlawful
lock-out.
Prohibitions on Union
71 – Unions not to interfere with employers’ organizations: No trade union and no person acting on
behalf of a trade union shall participate in or interfere with the formation or administration of an
employers’ organization or contribute financial or other support to an employer’s organization
72 – See above
76 – See above
81 – Unlawful strike: No trade union or council of trade unions shall call or authorize or threaten to call
or authorize an unlawful strike and no officer, official or agent of a trade union or council of trade unions
shall counsel, procure, support or encourage an unlawful strike or threaten an unlawful strike
Reverse Onus
96(5) – Burden of proof: On an inquiry by the Board into a complaint under subsection (4) that a person
has been refused employment, discharged, discriminated against, threatened, coerced, intimidated or
otherwise dealt with contrary to this Act as to the person’s employment, opportunity for employment or
conditions of employment, the burden of proof that any employer or employers’ organization did not
act contrary to this Act lies upon the employer or employers’ organization
Remedies
96(4) – Remedies for discrimination: Where a labour relations officer is unable to effect a settlement of
the matter complained of or where the Board in its discretion considers it advisable to dispense with an
inquiry by a labour relations officer, the Board may inquire into the complaint of a contravention of this
Act and where the Board is satisfied that an employer, employers’ organization, trade union, council of
trade unions, person or employee has acted contrary to this Act it shall determine what, if anything, the
employer, employers’ organization, trade union, council of trade unions, person or employee shall do or
refrain from doing with respect thereto and such determination, without limiting the generality of the
foregoing may include, despite the provisions of any collective agreement, any one or more of,
(a) an order directing the employer, employers’ organization, trade union, council of trade unions,
employee or other person to cease doing the act or acts complained of;
(b) an order directing the employer, employers’ organization, trade union, council of trade unions,
employee or other person to rectify the act or acts complained of; or
(c) an order to reinstate in employment or hire the person or employee concerned, with or without
compensation, or to compensate instead of hiring or reinstatement for loss of earnings or other
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employment benefits in an amount that may be assessed by the Board against the employer, employers’
organization, trade union, council of trade unions, employee or other person jointly or severally.
11(1) – Remedy if contravention by employer, etc.: Subsection (2) applies where an employer, an
employers’ organization or a person acting on behalf of an employer or an employers’ organization
contravenes this Act and, as a result,
(a) the true wishes of the employees in the bargaining unit were not likely reflected in a representation
vote; or
(b) a trade union was not able to demonstrate that 40 per cent or more of the individuals in the
bargaining unit proposed in the application for certification appeared to be members of the union at the
time the application was filed
11(2) – Same: In the circumstances described in subsection (1), on the application of the trade union,
the Board may,
(a) order that a representation vote be taken and do anything to ensure that the representation vote
reflects the true wishes of the employees in the bargaining unit;
(b) order that another representation vote be taken and do anything to ensure that the representation
vote reflects the true wishes of the employees in the bargaining unit; or
(c) certify the trade union as the bargaining agent of the employees in the bargaining unit that the Board
determines could be appropriate for collective bargaining if no other remedy would be sufficient to
counter the effects of the contravention
98(1) – Board power re interim orders: On application in a pending proceeding, the Board may,
(a) make interim orders concerning procedural matters on such terms as it considers appropriate;
(b) subject to subsections (2) and (3), make interim orders requiring an employer to reinstate an
employee in employment on such terms as it considers appropriate; and
(c) subject to subsections (2) and (3), make interim orders respecting the terms and conditions of
employment of an employee whose employment has not been terminated but whose terms and
conditions of employment have been altered or who has been subject to reprisal, penalty or discipline
by the employer
Penalties
104(1) – Offences: Every person, trade union, council of trade unions or employers’ organization that
contravenes any provision of this Act or of any decision, determination, interim order, order, direction,
declaration or ruling made under this Act is guilty of an offence and on conviction is liable,
(a) if an individual, to a fine of not more than $2,000; or
(b) if a corporation, trade union, council of trade unions or employers’ organization, to a fine of not
more than $25,000.
106 – Parties: If a corporation, trade union, council of trade unions or employers’ organization is guilty
of an offence under this Act, every officer, official or agent thereof who assented to the commission of
the offence shall be deemed to be a party to and guilty of the offence
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Enforcement
96(6) – Filing in court: A trade union, council of trade unions, employer, employers’ organization or
person affected by the determination may file the determination, excluding the reasons, in the
prescribed form in the Superior Court of Justice and it shall be entered in the same way as an order of
that court and is enforceable as such.
102 – Filing in court: A party to a direction made under section 100 or 101 may file it, excluding the
reasons, in the prescribed form in the Superior Court of Justice and it shall be entered in the same way
as an order of that court and is enforceable as such.
108 – Proceedings in Superior Court of Justice: Where a trade union, a council of trade unions or an
unincorporated employers’ organization is affected by a determination of the Board under section 96,
an interim order of the Board under section 99 or a direction of the Board under section 100, 101 or 144
or a decision of an arbitrator or arbitration board including a decision under section 103, proceedings to
enforce the determination, interim order, direction or decision may be instituted in the Superior Court
of Justice by or against the union, council or organization in the name of the union, council or
organization, as the case may be
Pre-Certification (Organizing) ULPs
5 – Membership in trade union: See above
13 – Right of access: Where employees of an employer reside on the property of the employer, or on
property to which the employer has the right to control access, the employer shall, upon a direction
from the Board, allow the representative of a trade union access to the property on which the
employees reside for the purpose of attempting to persuade the employees to join a trade union
70 – No employer interference with union: See above
76 – No intimidation and coercion: See above
77 – No persuasion during working hours: See above
86 – No alteration of working conditions: See above
87(1) – Protection of witness rights: No employer, employers’ organization or person acting on behalf
of an employer or employers’ organization shall,
(a) refuse to employ or continue to employ a person;
(b) threaten dismissal or otherwise threaten a person;
(c) discriminate against a person in regard to employment or a term or condition of employment; or
(d) intimidate or coerce or impose a pecuniary or other penalty on a person,
because of a belief that the person may testify in a proceeding under this Act or because the person has
made or is about to make a disclosure that may be required in a proceeding under this Act or because
the person has made an application or filed a complaint under this Act or has participated in or is about
to participate in a proceeding under this Act
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87(2) – Same: No trade union, council of trade unions or person acting on behalf of a trade union or
council of trade unions shall,
(a) discriminate against a person in regard to employment or a term or condition of employment; or
(b) intimidate or coerce or impose a pecuniary or other penalty on a person,
because of a belief that the person may testify in a proceeding under this Act or because the person has
made or is about to make a disclosure that may be required in a proceeding under this Act or because
the person has made an application or filed a complaint under this Act or has participated in or is about
to participate in a proceeding under this Act
Post-Certification ULPs
5 – Membership in trade union: See above
53 – Certain agreements not to be treated as collective agreements: An agreement between an
employer or an employers’ organization and a trade union shall be deemed not to be a collective
agreement for the purposes of this Act if an employer or employers’ organization participated in the
formation or administration of the trade union or contributed financial or other support to the trade
union
70 – No employer interference with union: See above
71 – No union interference with employers’ organization: See above
72 – Employer not to interfere with employee’s rights: See above
73 – No interference with bargaining rights: See above
74 – Duty of fair representation by trade union, etc.: A trade union or council of trade unions, so long
as it continues to be entitled to represent employees in a bargaining unit, shall not act in a manner that
is arbitrary, discriminatory or in bad faith in the representation of any of the employees in the unit,
whether or not members of the trade union or of any constituent union of the council of trade unions,
as the case may be
75 – Duty of fair referral, etc., by trade unions: Where, pursuant to a collective agreement, a trade
union is engaged in the selection, referral, assignment, designation or scheduling of persons to
employment, it shall not act in a manner that is arbitrary, discriminatory or in bad faith
76 – No intimidation & coercion: See above
77 – No persuasion during working hours: See above
78(1) – Strike-breaking misconduct, etc., prohibited: No person, employer, employers’ organization or
person acting on behalf of an employer or employers’ organization shall engage in strike-related
misconduct or retain the services of a professional strike breaker and no person shall act as a
professional strike breaker.
79(1) – Strike or lock-out: Where a collective agreement is in operation, no employee bound by the
agreement shall strike and no employer bound by the agreement shall lock out such an employee.
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81 – Unlawful strike: No trade union or council of trade unions shall call or authorize or threaten to call
or authorize an unlawful strike and no officer, official or agent of a trade union or council of trade unions
shall counsel, procure, support or encourage an unlawful strike or threaten an unlawful strike
83(1) – Causing unlawful strikes, lock-outs: No person shall do any act if the person knows or ought to
know that, as a probable and reasonable consequence of the act, another person or persons will engage
in an unlawful strike or an unlawful lock-out.
84 – Saving: Nothing in this Act prohibits any suspension or discontinuance for cause of an employer’s
operations or the quitting of employment for cause if the suspension, discontinuance or quitting does
not constitute a lock-out or strike
85 – Refusal to engage in unlawful strike: No trade union shall suspend, expel or penalize in any way a
member because the member has refused to engage in or to continue to engage in a strike that is
unlawful under this Act
86 – No alteration of working conditions: See above
87 – Protection of witness rights: See above
Bargaining & Work-Stoppage ULPs (More Later)
17 – Obligation to bargain: The parties shall meet within 15 days from the giving of the notice or within
such further period as the parties agree upon and they shall bargain in good faith and make every
reasonable effort to make a collective agreement
73 – Interfere with bargaining: See above
81 & 82 – Illegal strikes and lockouts: See above
Requirements
CPU v. International Wallcoverings, 1983 OLRB
Facts: Company used strike breakers during strike – strike breakers picked up at restaurant. Strikers
went to restaurant and a number of assaults and property damage occurred. 9 strikers alleged to be
involved were fired. DM, L and P assaulted strike breakers. MM damaged vehicle, but no knife threats.
BR, C, and Mez were at the restaurant, but didn’t assault anyone. Bl and R weren’t at the restaurant.
Decision: Both non-motive and motive approaches to s.70 are valid. For “motive” cases, improper
motive need not be the dominant purpose. Cases arise where employer conduct had a significant impact
on protected activity and, while supported by good faith, does not reflect a persuasive or worthy
business purpose. Company violated s.70 and s.72 by discharging Bl and R (mistake of fact, Bl and R
reinstated with back pay). Discharge of DM, L and P does not violate s.70. Discharge acceptable
punishment for those engaged in assault. If the motive test was used – no anti-union animus here; even
if the non-motive test was used the discharge was proportionate. Discharges of C, Br, and Mez –
company breached s.72. Their presence was adjunct to the strike and the company decided on
termination before the inquiry. Dismissal was in part objecting to their presence at the restaurant and
intended to make an impression on other employees (reinstated with back pay). Discharge of MM –
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company violated s.70 and s.72. Company mistaken about alleged knife threat. MM was terminated, in
part, for being present at the restaurant (motive) or terminated because of mistaken belief (non-motive)
(reinstated without back pay).
Ratio: In the instance of there being a clear motive, s.70 has automatically been violated. In the instance
where there is no clear motive, s.70 may still be violated where the business interests of the employer
do not outweigh the negative effect on the union.
Note: It is important to understand how the non-motive approach can apply to an instance of mistake.
Say an employer honestly but mistakenly believe that an employee stole an expensive piece of employer
property. Say also that the employee in question was the key union organizer in an organizing drive,
which the employer knew nothing about. The employer does not conduct an investigation of the theft
and summarily fires the employee in question. If the union asserts a ULP under s.70 the motive
approach is not going to work because the employer can prove that they have no idea about the
organizing drive. However, a ULP would likely be borne out under the non-motive branch, under the
balancing test, because the employer’s business justification for doing what it did would be weak (it
should have conducted an investigation into the theft).
CBC v. CLRB, 1995 SCC
Facts: Dale Goldhawk was ACTRA’s president and official spokesperson. Goldhawk was then hired by
CBC in 1988 to host Cross Country Checkup. Goldhawk took a strong position against free trade in ACTRA
publication. Journalist wrote article, arguing that there should be disclosure of Goldhawk’s role in ACTRA
and ACTRA’s position of free trade. After the federal election, Goldhawk offered to quit as ACTRA’s
spokesperson, while remaining president. CBC told Goldhawk he had to choose between his CBC job and
his union presidency.
Issue: Whether the CBC violated s.94(1)(a) of the Canada Labour Code (equivalent to s.70 of the OLRA)
Decision: CBC did violate s.94(1)(a)
Reasons: To succeed under s.94(1)(a), it is not necessary to establish anti-union animus. Provision called
for an objective test which focused on the effect of employer’s actions of the rights of employees. Not
every difficulty in formation and administration will support s.94(1)(a) violation.
Balancing test: did adverse impact on union activity exceed “sufficient or legitimate managerial,
entrepreneurial, or collective bargaining justification”? If adverse impact is a result of a business
justification, motive is a determining factor.
Goldhawk’s act of signing the article as union spokesperson was protected by the CLC. Article on a
government economic policy that constitutes a threat or benefit to its membership is lawful union
activity. Goldhawk acting within role as set out in ACTRA by-laws. No anti-union animus, so “motive”
sections of the CLC didn’t apply. Effect of the CBC’s decision was to prevent a CBC journalist from being
president of ACTRA. Balancing test – CBC did not try to reconcile its own business interests with those of
Goldhawk as a union member. No proven relationship between CBC’s impartiality and Goldhawk
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continuing as ACTRA president. Court looked at effect because motive was not an issue. Decision of the
CLRB was not patently unreasonable. CBC’s ultimatum affected two activities of the union: (1) precluded
future articles by union president and (2) prevented union members from choosing on on-air journalist
as president.
CAW v. Toromont, 2001 OLRB
Facts: CAW commenced a legal strike. On the second day of the strike, Valerio threw two apparent
bombs from the picket line. Police cordoned off the property, the bomb squad was called in and the
highway was shut down. The day of the incident, Valerio’s employment was terminated for throwing an
“explosive device”. CAW sought reinstatement pursuant to s.96. CAW alleged termination violated
sections 70, 72, and 76.
Decisions: In order to find a violation of s.72 or 76, there must be a finding of anti-union animus. No
factual basis for anti-union animus here. S.70 is designed to prevent interference in the activities of the
trade union – termination of Valerio did not do this. No need here to balance “business purposes” with
“protected activity” here
Summary of s.70 Analysis:
1. Motive – clear violation of s.70
2. Non-motive –
a. Protective activity: if the activity interfered with is outside the scope of protected
activity, s.70 does NOT apply. If the activity is characterized as protected activity you
move onto the balancing test
b. Balancing test: compare the impact on the union with the business purpose of the
company
 Grey areas of s.70
o SCC CBC Case: Canadian labour relations board and the SCC said that in the event of a
tie in the balancing test you can look at the motive to break the tie. But, if there was a
motive you wouldn’t be turning to the balancing test to begin with…
 Curran: You end up on the motive side where the motive is clear. If you’ve
reached a tie in the balancing test you can consider motives that were unclear
and make more inferences. Couldn’t business motive be construed as anti-union
motive in many cases? The line becomes blurry here
Teamsters v. Patrolman, 2005 OLRB
Facts: employer operates a security business that guards construction sites. Hayat and Shabbir involved
in union organizing and the employer was aware of this. Employer caught Shabbir at a non-assigned site.
Shabbir claimed he was borrowing money from a co-worker to pay for a tire repair. Employer caught
Hayat sleeping on the job and allegedly forging a time report. The two employees were terminated. The
employer maintained that some counselling occurred but neither was disciplined. After termination the
owner of the company stated that a union was not necessary. It was alleged by the union that
supervisors warned employees that Shabbir and Hayat were fired for organizing.
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Issue: Should Hayat and Shabbir be reinstated on a part-time basis, pursuant to s.98 of the OLRA? Was
there a causal relationship between organizing efforts of Hayat and Shabbir and their discharge?
s.98(1): On application in a pending proceeding, the Board may,
(a) make interim orders concerning procedural matters on such terms as it considers appropriate;
(b) subject to subsections (2) and (3), make interim orders requiring an employer to reinstate an employee in employment on
such terms as it considers appropriate; and
(c) subject to subsections (2) and (3), make interim orders respecting the terms and conditions of employment of an employee
whose employment has not been terminated but whose terms and conditions of employment have been altered or who has
been subject to reprisal, penalty or discipline by the employer
s.98(2): The Board may exercise its power under clause (1) (b) or (c) only if the Board determines that all of the
following conditions are met:
1. The circumstances giving rise to the pending proceeding occurred at a time when a campaign to establish bargaining rights
was underway.
2. There is a serious issue to be decided in the pending proceeding.
3. The interim relief is necessary to prevent irreparable harm or is necessary to achieve other significant labour relations
objectives.
4. The balance of harm favours the granting of the interim relief pending a decision on the merits in the pending proceeding.
s.98(3): The Board shall not exercise its powers under clause (1) (b) or (c) if it appears to the Board that the alteration
of terms and conditions, dismissal, reprisal, penalty or discipline by the employer was unrelated to the exercise of rights under
the Act by an employee
s.98(4): Despite subsection 96 (5), in an application under this section, the burden of proof lies on the applicant
Decision: Interim reinstatement granted
Reasons: All 4 elements of s.98(2) are satisfied - irreparable harm to union and vote. Regarding the
s.98(3) analysis, the inquiry into appearance is more cursory (and expeditious) – don’t have to
determine causal relationship as a question of fact. Instead, whether it looks or appears to be causal
relationship of a preliminary review or scan. Here, it appears that the discharges were causally related to
organizing – timing of discharged, employer’s knowledge, employers past practices. The timing of the
discharges was very suspicious – very soon after the employer became aware that these two individuals
were leading the charge in the certification drive the employer terminated both of them. The employer
was unable to adduce evidence that employees in the past had faced such extreme consequences in
similar circumstances. Subsection 98(3) was the main provision at issue in this case. Key wording of
“appears” seems to suggest sometime less than a full inquiry into the case (keep in mind this is ONLY for
an interim order). There has to be an appearance of a causal relationship between the exercise of rights
under the Act and the impugned employer conduct. Parties submit allegations of fact and the Board
looks at them and determines what appears to have happened. There is little to no questioning of
witnesses. This provision does not focus on the irreparable harm to the employees but is intended to
focus on the harm to the union at large.
UBC v. Finn Way, 2011 OLRB
Note: Board went down the clear motive branch of the s.70 analysis
Facts: Union alleges that Finn Way General Contractors Inc. laid off eight individuals upon learning that
the union was obtaining signed membership cards. The union contends that the layoffs were designed
to undermine the union’s organizing efforts and alleges ULPs (ss. 70, 72 and 76). The employer says that
the layoffs were due to a shortage of work. The company argued that s.11 is not a substitute for a union
that is not able to achieve membership support on its own efforts. The employer also argued that the
union must first succeed on its s.96 complaint and prove a violation of the Act has occurred. In this case,
Finn Way says the reasons the union did not achieve the requisite level of employee support is because
the employees were not interested in the union and not because of any acts of the employer.
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Issue: Whether the employer engaged in unfair labour practices in breach of ss. 70, 72, and 76 of the Act
and if yes, whether those contraventions should lead the Board to grant certification under section 11 of
the Act because no other remedy would suffice to counter the effects of the violations?
Decision: Layoffs were imposed by employers in response to union activity. Employer interfered with
employees’ rights to be represented by trade union (s.70). Company refused to continue to employ
employees because they were exercising protected rights (s.72(a)). Job loss amounted to coercion in
that it compelled employees not to be members of the union (s.76). A remedy under s.11 requires that
the union demonstrate that it was unable to obtain requisite support as a result of the employer’s
unlawful conduct. On these facts it is clear to me that the union was garnering some support and its
campaign was brought to an abrupt end by the layoffs. Here, once the employer puts job security in
issue, there is nothing the Board can do by way of remedy in the form of notices, declarations,
reinstatement or other ancillary relief that will allow employees to enter a voter’s booth free of the
threat of job loss. Court found that the remedy for the violation was s.11 (certify the union) as no other
remedy would be sufficient to counter the effects of the contravention.
Particular Types of Unfair Labour Practices Conduct
Alterations of Working Conditions (AKA Statutory Freezes)



Prohibition of unilateral alteration of terms and conditions of employment
1. Certification Process – from filing to dismissal or notice to bargain
2. Bargaining Process – notice to bargain to strike or lockout position
Freeze restrains employer conduct that may undermine union’s organizing or negotiating efforts
Anti-union motive not required
Simpsons v. CUBFCSDDW, 1985 CLRB
Facts: Employer was in financial difficulty, union recently certified, employer gave layoff notice to more
than 10% of staff. Some functions were contracted out. All of this was done for legitimate economic
reasons and there was no anti-union animus
s.86(2) Where a trade union has applied for certification and notice thereof from the Board has been received by the
employer, the employer shall not, except with the consent of the trade union, alter the rates of wages or any other
term or condition of employment or any right, privilege or duty of the employer or the employees until,
(a) the trade union has given notice under section 16, in which case subsection (1) applies; or
(b) the application for certification by the trade union is dismissed or terminated by the board or withdrawn by the
trade union
Decision: Not an absolute freeze – “business as before” test: employer’s right to manage its operation
maintained, but must conform to “pattern of operations” established. “Slippery” concept - two kinds of
events: pattern and first time. “Reasonable expectations approach” is better. It is reasonable for
employees to expect an employer to respond to a significant downtown with layoffs. There must be a
degree of proportionality, there must be an economic justification, and there must be an absence of
anti-union animus. Reasonable expectations approach distinguishes between layoffs and contracting out
– contracting out is harder to justify.
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OPSEU v. Royal Ottawa, 1999 OLRB
Facts: Relates to s.86(1). Hospital reduced employee benefits during bargaining. The hospital maintained
that it was acting bona fide in response to serious budgetary pressures, and that, in the circumstances, it
fairly concluded that reducing benefits was a way of realizing savings without impairing other employee
entitlements and without impinging upon patient care. Hospital argued it was carrying on “business as
usual” – making modifications to employee benefits as it had done in the past, in accordance with its
own assessment of the situation. Bargaining statutory freeze protects against an unexpected shift in the
starting point or basis for bargaining.
Decision: A form of economic regulation, rather than fault-based prohibition. Court questioned both
“business as before” and “reasonable expectations” tests. Court proposes “collective bargaining” test:
Does the change affect employees as a collective? If the change in question is the kind of thing that
affects employees as a collective and is the kind of thing that the employer would be obliged to bargain
about (per s.17), and it is the kind of thing, as a matter of labour relations practice, employers typically
do bargain about, then it is likely to be the kind of thing that employers cannot implement unilaterally
during the currency of the statutory freeze.
Employer Speech



During organizing drives, managers often want to communicate with employees and want to
persuade them against unionization
Employer speech is looked at from the perspective of the employee, not a reasonable person
In an employer free speech issue, focus on the “nothing in this section…” part and assess
whether the employer’s expression of views amounts to “coercion, intimidation, threats,
promises or undue influence”
o You do not need to first go through the motive/non-motive branch if the issue is clearly
employer free speech.
70 – Employers, etc., not to interfere with unions: No employer or employers’ organization and no
person acting on behalf of an employer or an employers’ organization shall participate in or interfere
with the formation, selection or administration of a trade union or the representation of employees by a
trade union or contribute financial or other support to a trade union, but nothing in this section shall be
deemed to deprive an employer of the employer’s freedom to express views so long as the employer
does not use coercion, intimidation, threats, promises or undue influence
USW v. Wal-Mart, 1997 OLRB
Facts: Organizing drive at Wal-Mart’s Windsor store. Between April 14 to April 27, 1996, 84 signed
membership cards. Employee told store manager on April 26, 1996. Company raised issue of economic
and job security and then refused to answer questions i.e. will the store close if the union is certified?
District manager attended morning meeting and employees were called and told to attend. District
manager spent the day speaking with employees. At morning meeting of April 30th, the District manager
against attended, one employee gave an anti-union speech and the employees involved in the
certification drive were not allowed to respond. Store manager told one employee that the union would
not necessarily benefit employees as everything would have to be bargained. Director of Associate
Relations and VP, when asked whether the store would close, indicated they couldn’t answer. Store
manager told one employee that stakeholders’ benefits would be revoked. Between April 27 to May 2,
1996, only 7 more cared were signed. Certification application made on May 2, 1996. Vote took place on
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May 6, 1996 – 43 for certification, 151 against, 9 segregated (not counted). The union alleged numerous
ULPs
Decision: Two concerns with employee’s anti-union speech – company did not distance itself from it and
the union supporters were not allowed to speak. Court said it was crucial to look at the effects of the
speech on employees. Court used the test of average or reasonable employee. The average employee
would have concluded they had concerns for their job security which constitutes intimidation or undue
influence by company, contrary to s.70. Four outside managers constantly approaching employees over
a six day period goes beyond mere assistance to employees and becomes intimidation or undue
influence, contrary to s.70. The average, reasonable employee would conclude from failure to answer
questions that store closing a real possibility and the company was intentionally fuelling the employees’
concerns.
Solicitation on Employer Property
Canada Post Corp., 1995 CLRB
Facts: Canadian Union of Postal Workers (CUPW) was bargaining agent for the operational bargaining
unit which is nationwide. Letter Carriers Union of Canada (LCUC) was engaged in raiding campaign at
Canada Post. Employees wanted to canvas co-workers at other Canada Post premises during nonworking hours (rest periods and lunch breaks) within the designated lunch areas. LCUC filed a complaint
alleging Canada Post was interfering with the organization and formation of a trade union. The
employer’s position was that solicitation was only allowed if carried on by worksite employees, outside
of business hours, and in non-working areas. Canada Post had a general policy against access to facilities
for non-work purposes (defines visitors as non-employees and employees from a different site). The
main concern behind the policy is security. Canada Post wanted to remain neutral with regards to LCUC
and CUPW.
Issues: Was Canada Post’s refusal to grant access for organizing purposes a violation of s.94(1)(a) of the
CLC? Was Canada Post’s refusal to grant employee access to their own worksite for organizing purposes
if the employee was on leave or not scheduled for work a violation of s.94(1)(a) of the CLC? (s.70 of the
OLRA is similar to s.94(1)(a) of the CLC)
s.95: No trade union or person acting on behalf of a trade union shall… (d) except with the
consent of the employer of an employee, attempt, at an employee’s place of employment
during the working hours of the employee, to persuade the employee to become, to refrain
from becoming or to cease to be a member of a trade union
Decision: Absolute rule of non-admittance applied to non-working employees because of perceived
fears related to security and safety is not compatible with the CLC – access can only be restricted for
compelling and justifiable reasons. Canada Post’s rule prohibiting access during non-working hours and
in non-working locations within Canada Post premises is prima facie in violation of s.94(1)(a). The court
must ensure a balance between employer’s rights to productivity/sound management and employees’
right to associate. Employer must prove “compelling and justifiable business reasons” to justify that
actions do not amount to interference contrary to s.94. On the question of whether employees from
another location were “stranger” the Board ruled no. If yes, effectively deprives employees of their right
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to participate in the formation of a trade union of their choice. Employer did not point out any specific
disruption or adverse effect on its business. Canada Post can adapt security guidelines.
T. Eaton, 1985 OLRB
Facts: Union was trying to organize the employees of the flagship Eaton’s store in the Eaton’s centre.
Union had to enter the mall in order to access the store. Union representatives would stand inside the
mall but outside the Eaton’s store entrance at the beginning and end of employee shifts handing out
flyers to the employees. Cadillac Fairview (landlord) on behalf of the Eaton Centre and the Eaton’s store
claimed to have a strict policy of non-solicitation and thus the union is not permitted to hand out flyers
on the mall premises.
Decision: The employer could not prohibit the occasional distribution of union literature before the
store opened. There was no evidence of legitimate business interests being impacted here. The
literature distribution was not interfering with anything and therefore the union soliciting was permitted
outside the store entrance and the Eaton Store’s claim represented an ULP. Cadillac Fairview claimed
that their non-solicitation policy was applicable throughout the mall and that their enforcement of the
policy was not an ULP because they are not the employer of the employees attempting to unionize. The
union in turn argued that CF was acting on behalf of Eaton’s and s.70 states that no person acting on
behalf of an employer shall participate in or interfere with the formation, selection or administration of
a trade union. This case ultimately went to the ONCA (see below)
Cadillac Fairview v. RWDSU, 1989 ONCA
Decision: Landlord unlawfully interfered with the formation of a trade union and the non-solicitation
policy lacked business justifications. The landlord acted on behalf of the employer. This was a very minor
action that the union was undertaking and there was no inconvenience or danger to Cadillac Fairview
and so there was no justification for them to enforce their non-solicitation policy and therefore the
court concluded that they were in fact acting on behalf of the employer.
UFCW v. Sobeys, 2010 OLRB
Facts: Sobeys claimed it had a non-solicitation policy which stated that no employee is permitted to
solicit a colleague for any purpose during working hours due to concerns over productivity, but there
was a lack of clarity with regards to the policy. Squeo attempted to solicit but claimed he didn’t solicit
during business hours, which the employer alleges he did. The Board made a finding of fact that the
solicitation did occur during business hours based on two employee complaints. Sobeys first issued a
verbal warning, then Squeo was temporarily transferred (Sobeys didn’t deny this was disciplinary) to an
area with less employee interaction (inference is that Sobeys wished to limit ability to solicit support)
and was monitored by a team leader. Squeo was then terminated on the grounds that the company
alleged several more complaints. UFCW alleged that the termination was because Squeo was involved in
the organizing campaign and sought interim reinstatement. Employer asserted that termination was due
to repeated violation of non-solicitation policy
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s.77: Nothing in this Act authorizes any person to attempt at the place at which an employee
works to persuade the employee during the employee’s working hours to become or refrain
from becoming or continuing to be a member of a trade union
Decision: The balance of harm (s.98(2)(4)) in this case favours reinstatement of Squeo
Reasons: The Act does not authorize union solicitation, but it also doesn’t prohibit it (see s.77 of the
OLRA). Employer policy prohibiting solicitation is presumptively valid in the absence of evidence that the
rule was adopted for a discriminatory purpose or applied unfairly. Sobeys does not have a no-solicitation
policy in which it can rely – the policy was not in writing, the scope was unclear, the penalty for breach
was unknown, there was no promulgation, and it had not previously been applied to union solicitation.
Therefore, the Board concluded that Squeo was terminated, at least in part, because he was an
organizer. The union’s organizing drive was completely stalled when Squeo was fired and the union will
experience irreparable harm if he is not reinstated (s.98(2)(3)). Balance of harm favours reinstatement –
Squeo was terminated for union organizing, not insubordination. An employer is entitled to adopt a nonsolicitation policy and an employee who breaches such may be subject to discipline, provided there is no
anti-union animus. If employee has been repeatedly defiant of the policy, balance of harm may not
favour reinstatement. Employer can terminate union organizer who engages in unsafe or dangerous act
and balance of harm may not favour reinstatement. However, in this case, the policy didn’t actually
exist.
Note: The Act doesn’t authorize solicitation during the employee working hours whereas the CLC
specifically prohibits solicitation during business hours – there is more flexibility within the OLRA
Union ULPs




Law forbids trade unions for coercing employees into becoming members
Union ULPs are far less common than employer ULPs
Milet Mines Ltd. (1953, OLRB): OLRB dismissed application by union where threats of violence
were made against organizers and supporters of another union. No vote was allowed because
the intimidation had a lasting effect.
Canadian Fabricated Products Ltd. (1954, OLRB): Raiding union threatened employees that it
would exercise economic sanctions against the employer if the application was rejected. The
OLRB found this to be in violation of s.76
76 – Intimidation and coercion: No person, trade union or employers’ organization shall seek by
intimidation or coercion to compel any person to become or refrain from becoming or to continue to be
or to cease to be a member of a trade union or of an employers’ organization or to refrain from
exercising any other rights under this Act or from performing any obligations under this Act.
Remedies & Enforcement

Remedies play an important role
o Time is of tactical importance in organizing campaigns
o Parties have an ongoing relationship
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Labour legislation provides for quasi-criminal penalties (s.104-107 of the OLRA)
o These are rarely used
o Aggrieved parties must get leave from the Minister of Labour or LRB (see s.109 of the
OLRA)
Labour legislation provides for administrative penalties
o Common for ULPs
o Boards in most jurisdictions have broad mandate to provide remedial relief (e.g. s.96(4)
of OLRA)
o Some example:
 Order to provide information to employees
 Orders the enable union to communicate with workers (e.g. meetings on
working time)
 Declaration of statutory violation
 Cease and desist order
96(4) – Remedy for discrimination: Where a labour relations officer is unable to effect a settlement of
the matter complained of or where the Board in its discretion considers it advisable to dispense with an
inquiry by a labour relations officer, the Board may inquire into the complaint of a contravention of this
Act and where the Board is satisfied that an employer, employers’ organization, trade union, council of
trade unions, person or employee has acted contrary to this Act it shall determine what, if anything, the
employer, employers’ organization, trade union, council of trade unions, person or employee shall do or
refrain from doing with respect thereto and such determination, without limiting the generality of the
foregoing may include, despite the provisions of any collective agreement, any one or more of,
(a) an order directing the employer, employers’ organization, trade union, council of trade unions,
employee or other person to cease doing the act or acts complained of;
(b) an order directing the employer, employers’ organization, trade union, council of trade unions,
employee or other person to rectify the act or acts complained of; or
(c) an order to reinstate in employment or hire the person or employee concerned, with or without
compensation, or to compensate instead of hiring or reinstatement for loss of earnings or other
employment benefits in an amount that may be assessed by the Board against the employer, employers’
organization, trade union, council of trade unions, employee or other person jointly or severally.
Royal Oakes Mines v. CLRB, 1996 SCC
Decision: Board will exceed jurisdiction if it imposes a remedy which is (1) not rationally connected to
the breach and its consequences, or (2) is inconsistent with the policy objectives of the statute.
Remedies are a matter that fall directly within the specialized competence of labour boards. Parliament
has given a clear indication that the Board has been entrusted with wide remedial powers. Broad
privative clauses provide that decisions and orders are final. Court should defer to the remedial orders
of the Board which are made within its jurisdiction.
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Legal and Organizing Costs
Barton Metal, 2001 OLRB
Decision: employer found to have committed many egregious ULPs. Union put to unnecessary expense
in its organizing campaign. The board ordered the employer to compensate the union for organizing
expenditures from beginning of campaign to the vote. The board refused legal costs because these are
only ordered where there is no chance of an ongoing relationship between the parties.
National Bank, 1982 CLRB
Facts: union certified to represent employees at Maquire St. branch. There was a three day gap between
the stage one statutory freeze and the stage two statutory freeze and during that gap senior officials
decided to close the branch and transferred all of the accounts to another, non-unionized branch. The
decisions were motivated by anti-union animus.
Order: Union becomes union for Sheppard branch (where accounts transferred to) – (1) give the union a
list of employees at the Sheppard branch, (2) allow union to hold meetings during working hours, (3)
allow the union to install a bulletin board in staff area, (4) pay all associated organizing costs, (5) send a
letter to all employees saying that it had violated rights and that it recognized these rights now (bank
took issue with this) and (6) deposit $144,000 into a trust fund to be administered jointly to promote
CLC objectives among all of the bank’s employees (bank also took issue with this order). Bank appealed
to the SCC
National Bank, 1984 SCC
Decision: Remedies 5 and 6 are punitive and should be set aside. CLRB has no power to impose punitive
measures. There was no relationship between the alleged ULPs/consequences and the trust fund and
the main purpose of the letter was to promote the trust fund.
Remedial Certification

Under s.11 of the OLRA, Board can order a new representation vote or grant remedial
certification
o Remedial certification is only available where the Board concludes that: (1) no other
remedy would suffice, and (2) a representation vote would not likely reflect the
employees true wishes
11(1) – Remedy if contravention by employer, etc.: Subsection (2) applies where an employer, an
employers’ organization or a person acting on behalf of an employer or an employers’ organization
contravenes this Act and, as a result,
(a) The true wishes of the employees in the bargaining unit were not likely reflected in a
representation vote; or
(b) A trade union was not able to demonstrate that 40 per cent or more of the individuals for
certification appeared to be members of the union at the time the application was filed
(2): In the circumstances described in subsection (1), on the application of the trade union, the Board
may,
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(a) order that a representation vote be taken and do anything to ensure that the representation vote
reflects the true wishes of the employees in the bargaining unit;
(b) order that another representation vote be taken and do anything to ensure that the representation
vote reflects the true wishes of the employees in the bargaining unit; or
(c) certify the trade union as the bargaining agent of the employees in the bargaining unit that the Board
determines could be appropriate for collective bargaining if no other remedy would be sufficient to
counter the effects of the contravention.
(4) – Considerations: On an application made under this section, the Board may consider,
(a) the results of a previous representation vote; and
(b) whether the trade union appears to have membership support adequate for the purposes of
collective bargaining
Wal-Mart, 1997 OLRB
Decision: Intentional implied threat to job security meant that the vote was meaningless (question
changed from union representation to job keeping). Board considered other remedies short of
certification – second representation vote would be meaningless because the threat of job security
couldn’t be erased from the employees’ minds. The threats undermined the true expression of
employee wishes. The Board had to consider whether the union had adequate support for collective
bargaining under the Act at that time, union had adequate support for collective bargaining (44%
membership).
LIUNA v. East Elgin Concrete, 2007 OLRB
Facts: Union began campaign to organize construction labourers. LIUNA alleged interference and
intimidation contrary to ss. 70, 72, and 76. LIUNA sought automatic certification as a result of the ULPs
(board found that these were ULPs under those sections). Incident 1: One of the owners of the company
had a telephone conversation with the union organizer during which he repeatedly threatened the
organizer with physical violence. The owner admitted that he told employees that if they wanted to be
unionized they should go work for a competitor. Union organizer claimed psychological trauma but
never called the police or told the union this had occurred. Incident 2: During a mandatory meeting
between owners and employees one of the owners offered cash incentive to punch union organizer. The
owners also made comments about the impacts of unionization of job security including losing
customers (non-unionized contractors), possibly loss of hours and employees might have to drive their
own vehicles to job sites but said the business would not close. Incident 3: Owner told sub-contractor
that company might file for bankruptcy if the union was certified and the sub-contractor in turn told the
employees this (board found there was no evidence to support this allegation).
Decision: Remedial certification granted – the true wishes of the union likely not reflected because of
the threats of violence for association with the union, that employees might suffer loss of work and that
their employment terms and conditions might be adversely affected. No other remedy can counter the
ULPs that took place – no more signatures collected after the meeting.
Reasons: In order to grant remedial certification, the Board must find ULPs. Incident 1 contravenes ss.
70 and 76. Incident 2 – statement about punching the organizer is not protected by freedom of speech.
Suggestions of violence or physical harm create a climate of intimidation – implied that physical harm
might result from one’s association with the union and implied dissent on unionization issues were not
tolerated which violates ss. 70 and 72(c). The threats to job security under incident 2 violate ss. 70,
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72(c), and 76. All of these things could not be washed away, the damage has already been done and is
permanent.
Modifying & Terminating Bargaining Relationships
Successor Employers
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
Without labour legislation, principles of corporate law mean that a change in the employer’s
corporate identity ends: statutory bargaining rights and collective agreements
Labour statutes protect existing bargaining rights where a business is sold or transferred
Ajax v. CAW, 1998 ONCA
Facts: Ajax contracted with Charterways for the provision of drivers, mechanics and cleaners. The
employees of Charterway were represented by CAW. Ajax decided to take back transit operations and
cancelled the contract with Charterway and hired its own drivers, mechanics and cleaners, most of
whom were former Charterway employees. CAW sought a declaration that this was a sale of business
(s.69).
Sale of business s.69(1): In this section, “business” includes a part or parts thereof; “sell”
includes leases, transfers and any other manner of disposition, and “sold” and “sale” have
corresponding meanings
Successor Employer s.69(2): Where an employer who is bound or is a party to a collective
agreement with a trade union or council of trade unions sells his, her or its business, the person
to whom the business has been sold is, until the Board otherwise declares, bound by the
collective agreement as if the person had been a party thereto and, where an employer sells his,
her or its business while an application for certification or termination of bargaining rights to
which the employer is a party is before the Board, the person to whom the business has been
sold is, until the Board otherwise declares, the employer for the purposes of the application as if
the persons were named as the employer in the application.
Successor employer s.69(3): Where an employer on behalf of whose employees a trade union or
council of trade unions, as the case may be, has been certified as bargaining agent or has given
or is entitled to give notice under section 16 or 59, sells his, her or its business, the trade union,
or council of trade unions continues, until the Board otherwise declares, to be the bargaining
agent for the employees of the person to whom the business was sold in the like bargaining unit
in that business, and the trade union or council of trade unions is entitled to give to the person
to whom the business was sold a written notice of its desire to bargain with a view to making a
collective agreement or the renewal, with or without modifications, of the agreement then in
operation and such notice has the same effect as a notice under section 16 or 59, as the case
requires.
Issue: Was this a “sale” of a “business”?
Decision: Contract between Charterways and Ajax emphasized continuity and stability of workforce.
Given centrality to operation, workforce constitutes a distinguishing “part” of business (OLRB). Ajax
acquired a substantial part of that workforce (OLRB) and thus transferred to itself an essential element
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of the business. Chaterways and Ajax transacted a sale of part of the business (OLRB). S.64 has a
remedial purpose which is the preservation of bargaining rights. The definition of “sell” must be given a
broad and liberal interpretation. Transfer does not need to take any particular legal form (a legal
transaction is not necessary). Labour boards have also interpreted “disposition” broadly as something
that must be relinquished and obtained. The workforce was the most valuable asset of that business.
Contracting Out
Canada Post v. CUPW, 1990 CLRB
Facts: Since 1970, Nieman’s operated a post office with its pharmaceutical and retail business (location
1). In 1987 expanded location 1 to include several additional functions. In 1987 opened a second
pharmaceutical and retail business (location 2) which offered similar postal services. CUPW claimed this
constituted a sale of the business. Canada Post asserted this was contracting out.
Decision: Provisions designed to preserve existing bargaining rights and protect collective agreements in
the event business changes hands. Bargaining rights attach to business – not the employees or chattels
or assets or work. Whole or part of business must pass from seller to purchaser. “Part of business” =
coherent and severable part of a business’ economic organization; economic vehicle or going concern
capable of standing alone. Implementation of Canada Post’s “Corporate Retail Representation Plan” has
resulted in less wicket work for the CUPW bargaining unit. Some of the work was subcontracted to
Nieman’s where done by Nieman’s employees. The theory that bargaining rights follow work is rejected.
The purpose of s.44 of the CLC is not to protect jobs, it is to protect existing bargaining rights and
collective agreements.
Variance
Kingston Typo Union, 2008 OLRB
Existing Bargaining Units
Proposed Bargaining Units
Facts: KTU sought consolidation of 6 bargaining units and asserted that the existence of 6 separate units
was primarily because of historical factors. KTU alleged problems with this including that the community
of interest isn’t bargaining together, a lack of confidentiality and potential for labour relations
disruptions.
Jurisdiction 114(1): The Board has exclusive jurisdiction to exercise the powers conferred upon
it by or under this Act and to determine all questions of fact or law that arise in any matter
before it, and the action or decision of the Board thereon is final and conclusive for all purposes,
but nevertheless the Board may at any time, if it considers it advisable to do so, reconsider any
decision, order, direction, declaration or ruling made by it and vary or revoke any such decision,
order, direction, declaration or ruling
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Decision: S.114(1) allows the Board to alter bargaining unit descriptions contained in previous decisions/
certificates. Board has not typically altered bargaining units after collective agreements have been
negotiated. Board has consistently held that once the first collective agreement has been negotiated,
the certificate is spent. After that, the scope of bargaining unit is determined by reference to the
bargaining unit defined under the collective agreement and any modifications would by the subject of
negotiations. Bargaining rights in a collective agreement may supplant bargaining rights contained in a
certificate. Bargaining rights in subsequent collective agreements may supplant those in prior collective
agreements. The parties have had a long-standing bargaining relationship. Board does not have the
statutory authority to alter recognition clauses in a collective agreement. Board reconsideration of initial
decisions will not provide KTU with relief.
Decertification
63(2) – Application for termination, agreement: Any of the employees in the bargaining unit defined in
a collective agreement may, subject to section 67, apply to the Board for a declaration that the trade
union no longer represents the employees in the bargaining unit,
(a) in the case of a collective agreement for a term of not more than three years, only after the
commencement of the last three months of its operation;
(b) in the case of a collective agreement for a term of more than three years, only after the
commencement of the 34th month of its operation and before the commencement of the 37th month
of its operation and during the three-month period immediately preceding the end of each year that the
agreement continues to operate thereafter or after the commencement of the last three months of its
operation, as the case may be;
(c) in the case of a collective agreement referred to in clause (a) or (b) that provides that it will continue
to operate for any further term or successive terms if either party fails to give to the other notice of
termination or of its desire to bargain with a view to the renewal, with or without modifications, of the
agreement or to the making of a new agreement, only during the last three months of each year that it
so continues to operate or after the commencement of the last three months of its operation, as the
case may be
63(3) – Notice to employer, trade union: The applicant shall deliver a copy of the application to the
employer and the trade union by such time as is required under the rules made by the Board and, if
there is no rule, not later than the day on which the application is filed with the Board
63(4) – Evidence: The application filed with the Board shall be accompanied by a list of the names of the
employees in the bargaining unit who have expressed a wish not to be represented by the trade union
and evidence of the wishes of those employees, but the applicant shall not give this information to the
employer or trade union
63(5) – Direction re representation vote: If the Board determines that 40 per cent or more of the
employees in the bargaining unit appear to have expressed a wish not to be represented by the trade
union at the time the application was filed, the Board shall direct that a representation vote be taken
among the employees in the bargaining unit
63(6) – Direction re representation vote: The number of employees in the bargaining unit who appear
to have expressed a wish not to be represented by the trade union shall be determined with reference
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only to the information provided in the application and the accompanying information provided under
subsection (4)
63(7) – Same: The Board may consider such information as it considers appropriate to determine the
number of employees in the bargaining unit.
63(8) – No hearing: The Board shall not hold a hearing when making a decision under subsection (5)
63(9) – Timing of vote: Unless the Board directs otherwise, the representation vote shall be held within
five days (excluding Saturdays, Sundays and holidays) after the day on which the application is filed with
the Board.
63(10) – Conduct of vote: The representation vote shall be by ballots cast in such a manner that
individuals expressing their choice cannot be identified with the choice made.
63(11) – Sealing of ballot box, etc.: The Board may direct that one or more ballots be segregated and
that the ballot box containing the ballots be sealed until such time as the Board directs
63(12) – Subsequent hearing: After the representation vote has been taken, the Board may hold a
hearing if the Board considers it necessary in order to dispose of the application
63(13) – Exception: When disposing of an application, the Board shall not consider any challenge to the
information provided under subsection (4).
63(14) – Declaration of termination following vote: If on the taking of the representation vote more
than 50 per cent of the ballots cast are cast in opposition to the trade union, the Board shall declare that
the trade union that was certified or that was or is a party to the collective agreement, as the case may
be, no longer represents the employees in the bargaining unit
63(15) – Dismissal of application: The Board shall dismiss the application unless more than 50 per cent
of the ballots cast in the representation vote by the employees in the bargaining unit are cast in
opposition to the trade union.
63(18) – Declaration to terminate agreement: Upon the Board making a declaration under subsection
(14) or (17), any collective agreement in operation between the trade union and the employer that is
binding upon the employees in the bargaining unit ceases to operate forthwith
Negotiating a Collective Agreement
Common Provisions:


Recognition clause: employer recognizing union as bargaining agent of employees and the
bargaining unit. It is open to employees to make modifications to the bargaining unit over time
Protection Bargaining Unit work: unions seek provisions prohibiting the assignment of work,
usually performed by their members, to individuals outside that group. Usually includes a “no
subcontracting clause”
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Union Security: less important now than previously – unions have historically been concerned
about union dues and the extent to which employers have to help unions in collecting their
dues. Currently, along with the RAN formula there is an automatic dues check off. For all
employees in the bargaining unit, the employer automatically deducts their union dues and
remits that to the union. This issue no longer needs to be negotiated in collective agreements.
Non-Discrimination: clauses that specifically relate to the respecting of human rights, negotiated
to increase human rights obligations (above and beyond human rights legislation) and allowing
for grievances claims related to human rights violations (which the legislation does necessarily
allow for)
Management rights: One of the few clauses in the collective agreement that is for the benefit of
the employers. Frequently include rights which affect employees directly such as the right to
scheduling work, the right to create certain rules for the workplace, and the right to promote
certain employees, discipline employees, and hire/fire employees. You can classify management
rights into one of two categories: (1) general management rights clause or (2) specifically
enumerate the areas where management has rights or discretion to make certain decisions
Progressive Discipline: Outlines the ways in which management can discipline employees.
Generally, employees need to start with corrective action which then leads to escalating
penalties which ultimately lead to discharge. Will often specify that certain behaviours lead to
specific forms of discipline i.e. theft is grounds for automatic discharge
No strikes or lock-outs: No strikes or lock-outs during the term of the collective agreement
which echoes rules in the OLRA. Provide the work place with labour peace during the term of
the collective agreement
Grievance Procedure: Grievances are disputes about rights or interpretation/application of the
collective agreement during the term of the collective agreement (DR procedure). Most
collective agreements will set out a specific procedure that needs to be followed whereby
disputes are escalated through steps and will ultimately end with arbitration if the parties
cannot resolve the dispute amongst themselves.
Arbitration: Will outline mutually acceptable arbitrators and in what order they will be called
upon
Seniority: Use of seniority to determine shift, hours etc.
Health and safety: Establishment of a health and safety committee
Reporting and Call-In pay: Minimum amount of pay if you’re sent home because of lack of
available work to be done
Jury and Witness Duty Leave
Holiday Pay
Overtime, wages, benefits, vacation pay, bereavement leave, technological change, cost of living
allowance (COLA), leaves of absence, term of the agreement
Collective Agreement: Legal Status

Three essential requirements for validity:
o In writing
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o Between employer and trade union
o Terms and conditions of employment
Memorandum of settlement – ratification (terms are put to the membership and they vote to
accept the terms or not).
o If accepted the memorandum of settlement either says it automatically becomes the
collective agreement or the members will have to sign to agree to the collective
agreement
In the simplest form it is one collective agreement per bargaining unit and it must bind everyone
in that bargaining unit – cannot only apply to trade union members
Not all common law doctrines apply to collective agreements
Collective agreements enforceable via legislation
Collective agreement = labour relations constitution
Collective Bargaining
Statutory Timetable


Notice to bargain triggers statutory “duty to bargain”
o “in good faith” (subjective)
o “every reasonable effort” (objective)
Once collective agreement has been signed, they duty to bargain is suspended until the next
round of bargaining
17 – Obligation to bargain: The parties shall meet within 15 days from the giving notice or within such
further period as the parties agree upon and they shall bargain in good faith and make every reasonable
effort to make a collective agreement
Duty to Bargain in Good Faith


4 policy objectives for imposing a duty to bargain
1. Reduce recognition strikes
2. Improve bargaining power of the union
3. Fosters partnership between union and employer
4. Facilitates “rational persuasion”
Recognition strikes: in the past, unions would get the employees to strike in order to get the
employer to recognize their legitimacy. This is no longer necessary now that there is a duty to
bargain in good faith
UERMWA v. DeVilbiss, 1976 OLRB
Decision: S.17 duty has two principle functions: (1) bargaining agent recognition and (2) foster rational,
informed discussion
GAIU v. Graphic Centre, 1976 OLRB
Facts: In the middle of negotiations, the union brought a grievance under the old collective agreement.
The union claimed it had waited until this point so as not to jeopardize the negotiations. The employer
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refused to sign a renewal agreement unless the grievance was dropped. Although the parties appeared
to have settled all of the outstanding issues before them, the ill feeling generated by the filing of the
grievance led the employer to put forward sixteen new demands for changes to the collective
agreement. The union alleged that the employer had failed to make every reasonable effort to conclude
a collective agreement.
Decision: A party that introduced a new demand late in negotiations destroys decision-making
framework. In the absence of compelling evidence, this is a violation of the duty to bargain in good faith.
The tabling of the grievance did not justify the employer’s response especially in light of the fact that the
response occurred after a verbal settlement had been achieved. The employer’s conduct was in
violation of s.17 of the Act in so far as that section requires the parties to act in such a way as to foster
rather than undermine the decision making capability of the parties.
CAIMAW v. Noranda, 1975 CLRB
Facts: At a bargaining session, the union asked the employer to disclose the cost to the employer of the
benefits in question. The employer refused, taking the position that it was obliged to discuss only the
extent of those benefits and not the price at which the employer could purchase them from third party
providers. The union alleged that this refusal constituted a violation of the duty to bargain in good faith.
Decision: Employer is obligated to provide the union with information relevant to assessing bargaining
proposal. It is a long established principle that a party commits an unfair labour practice if it withholds
information relevant to collective bargaining without reasonable grounds. One could hardly say than an
employer who deliberately withheld factual data which the union needed to intelligently appraise a
proposal on the bargaining table was “making every reasonable effort to conclude a collective
agreement”.
USW v. Radio Shack, 1980 OLRB
Facts: Union certified automatically because of ULPs. Notice to bargain was given on November 30,
1978. Radio Shack sent out a series of memos that criticized the union and bargaining conduct. Radio
shack made a number of strange proposals early in bargaining. In June/July 1979 there was a change in
the employers negotiating team and issues were narrowed considerably. Strike started in August, 1979.
Security consultant may have told strikers about a decertification application. New VP sent a letter
giving thanks to strike breakers. USW alleged ULPs including a violation of s.17
Decision: From November 1978 to June 1979 there was a failure to bargain in good faith. In June, July
and August of 1979 there was also a failure to bargain in good faith and make every reasonable effort to
reach a collective agreement. No one from management testified about instructions to negotiators
(external lawyers). Radio Shack should have provided a detailed explanation to justify its rigid position of
key issues, particularly union security. Position on union security violates s.17 and constitutes other
ULPs. After a long period of bargaining in bad faith, the onus is on Radio Shack to prove a change of
heart. Radio Shack was engaging in surface level bargaining (preserving surface indications of bargaining
without intent of concluding a collective agreement) not hard bargaining (acting in self-interest and
taking positions which may be unacceptable to the other side).
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Royal Oakes Mines v. CLRB, 1996 SCC
Facts: Unionized workers voted overwhelmingly to reject a tentative agreement which led to a violent
18 month strike. CLRB found failure to bargain in good faith. The employer refused to negotiate until the
issue of reinstatement and discipline resolved and demanded a probationary period for returning
workers. CLRB ordered employer to put rejected offer back on the table with 4 items to be negotiated
further. CLRB gave the parties 30 days to finalize the agreement with compulsory arbitration if
necessary. The employer applied for judicial review
Decision: Section 50(a) of the CLC has a subjective and objective standard. The subjective standard of
“every reasonable effort” won’t be met it the employer ought to know that their position is
unacceptable to the union and violates industry standards. The refusal to include basic and standard
terms of agreement lead to an inference that there was no intention to bargain in good faith. Here, the
employer’s refusal to consider grievance arbitration clause was a breach of the subjective standard.
Court noted that arbitration lead to reinstatement with back pay of 44 of 49 employees. The CLRB
decision was not patently unreasonable.
United Steel, Paper and Forestry […] v. Vale Inco Limited, 2012 OLRB
Facts: There was a long and bitter strike by United Steel, Paper and Forestry, Rubber… at Vale Inco
Limited’s Sudbury operations. During the course of the strike, Vale discharged nine employees for
alleged misconduct. In collective bargaining, Vale refused to agree to any procedure which might give
rise to the possibility of reinstatement of the nine employees. The USW alleges that Vale’s position
constitutes a breach of s.17. The USW alleges that Vale has failed to make every reasonable effort to
make a collective agreement but does not allege that Vale’s position amounts to a failure to bargain in
good faith.
Decision: Vale breached s. 17. Having regard to the circumstances and Vale’s position, the court
concluded that Vale’s position was patently unreasonable. In maintaining that position to impasse Vale
was not making every reasonable effort to make a collective agreement.
AMAPCEO v. Ontario (Government Services), 2012 OLRB
Facts: Employer and OPSEU had entered into a confidential agreement pursuant to which the across the
board increase for the fourth years of the unified collective agreement would be given an extra 1% in
addition to the publicly announced 2%. The employer thereafter engaged in collective bargaining
negotiations with AMAPCEO during which time, as a result of the employer and OPSEU’s public
announcements as to the terms on which they had settled, AMAPCEO believed the employer to have
settled with OPSEU for an increase of 2% in the fourth year. The employer and AMAPCEO agreed on
terms of a renewal collective agreement following which AMAPCEO found out about the confidential
agreement between the employer and OPSEU. AMAPCEO alleges that the Employer’s conduct during
the course of negotiations for a renewal agreement with AMAPCEO constitutes bargaining in bad faith.
Decision: One of the functions served by the duty to bargain in good faith and make every reasonable
effort to make a collective agreement is to foster rational and informed discussion. The duty requires
parties to engage in full and honest discussion and censures parties for withholding information that the
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party opposite requires in order to intelligently appraise a proposal. Court found that while the
employer may not have explicitly discussed the OPSEU increases, the employer entered into the
confidential agreement with OPSEU in order to create a construct whereby AMAPCEO would believe
that those were the OPSEU increases and the employer’s conduct in the circumstances amounted to
misrepresentation.
Disclosure of Plans During Bargaining


What are the employer’s obligations?
o Westinghouse (1980, OLRB): Duty to bargain places an obligation on the employer to
respond honestly to union inquiries at the bargaining table about the existence of
company plans that may have a significant impact on the bargaining unit.
 Does not place employer under a duty to reveal, on its own, plans that have not
yet ripened into at least de facto final decisions
o Sunnycrest (1982, OLRB): violation of duty when firm decision to contract out was made
Summary of duty:
o If the union asks a relevant question about something that would impact the bargaining
unit, the employer has to answer honestly. There are some obligations on the employer
to volunteer information about certain plans if silence would be tantamount to
misrepresentation – if an employer is merely considering something, they do not need
to disclose that on their own initiative but where a de facto decision has been made,
even if the union doesn’t ask specific questions about that decision, it is incumbent on
the employer to raise the issue and identify that the decision has been made
IWA v. Consolidated Bathurst, 1983 OLRB
Facts: Plant in Hamilton. From November 1982 until January 13, 1983 there was a negotiation of
renewal collective agreement. Provisions regarding plant closures and severance pay renewed. No
request was made by the union for information regarding closure of the plant. On March 1 the employer
announced the shutdown, effective April 26, 1983. Union alleged a breach of the duty to bargain in good
faith.
Issues: Was the decision to close finalized during bargaining? Should the Westinghouse disclosure
threshold be lowered? Should the Board implement a duty to bargain over unanticipated changes during
the lifetime of the agreement?
Decision: Employer under s.17 obligation to reveal to union on own initiative decisions which have been
made and which may have a major impact on the bargaining. Board discussed policy rationales for
unsolicited disclosure. Board rejected lower “thinking seriously” threshold for unsolicited disclosures.
Failure of employer to disclose on unsolicited basis must be “tantamount to a misrepresentation” to
qualify as a breach of s.17. In this case, a de facto decision was made during the negotiations and silence
amounted to misrepresentation.
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Remedies for Violating Duty to Bargain in Good Faith


Two general principles:
o Remedy is compensatory not punitive
o Can’t impose collective agreements on parties
Common remedies: pay increases or benefit enhancement union would have gotten, cease and
desist orders, orders to bargain in good faith, retractions of false or prejudicial statements,
payment of negotiating costs
Royal Oakes Mines, 1996 SCC
Facts: One of the most rancorous labour disputes in Canadian history – failed conciliation, failed
mediation, workers rejected tentative agreement, changing proposals from the company,
representation dispute within the union, decertification drive, replacement workers, violence (bombs,
murders, death threats)
CLRB Decision: Ordered that employer put former offer back on the table with several modifications
(back to work protocol, with arbitration for grievances of terminated employees) which was
recommended by the Industrial Inquiry Commission. There would be negotiation on 4 contentious
terms, as recommended by the commission. The parties were given 30 days to finalize the agreement
with compulsory arbitration if necessary.
s.99(2) CLC: For the purpose of ensuring the fulfillment of the objectives of this Part, the Board
may, in respect of any contravention of or failure to comply with any provision to which
subsection (1) applies and in addition to or in lieu of any other order that the Board is
authorized to make under that subsection, by order, require an employer or a trade union to do
or refrain from doing anything that is equitable to require the employer or trade union to do or
refrain from doing in order to remedy or counteract any consequence of the contravention or
failure to comply that is adverse to the fulfillment of those objectives.
s.96(4) OLRA: Even though the CLC uses the word “equitable” nothing turns on it. Statute
essentially says that where the Board finds there has been a breach of the duty to bargain in
good faith, the Board may order the employer or union to do or refrain from doing anything to
remedy the wrong – this is a very broad remedial power. Royal Oakes is applicable in Ontario
SCC Decision: There are 4 situations in which the remedy under s.99(2) would be patently unreasonable:
(1) punitive, (2) infringes Charter, (3) No rational connection among the breach, consequences and
remedy, (4) remedy contradicts objects and purposes of the CLC. In this case, the relevant issues were 3
and 4. With regards to the issue of the rational connection there was a clear connection – breach
(intractable position on right to work of violent miners), consequences (impossible to get agreement),
and remedy (arbitration clause, combination of employer proposal and recommendations of
commission). With regards to the issue of policy consistency, free collective bargaining is a cornerstone
of the CLC and labour relations. However, this does not supersede all other objectives and the board is
permitted to violate free collective bargaining if: dispute intractable, breach of DBGF, failure to form
collective agreement, community is suffering from strike. SCC created a test for where the board is
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permitted to violate FCB. The wording of this case indicates you must have all four requirements in
order for the interference on the part of the Board to be considered appropriate and acceptable.
Although the last requirement is phrased as community, indicating a geographical requirement, it can
also be interpreted to include a community of interest that is not necessarily geographically close but is
nonetheless suffering significant negative impacts.
Note: Difference between conciliation and mediation: conciliation happens earlier on in the process and
the main goal is to enhance the communication between the parties and ensure the parties ultimately
understand each other in terms of the various bargaining proposals. The conciliator meets with the
parties separately. Mediation is a little bit more interventionist in that the mediator can propose
solutions to the parties (parties can reject them). Mediator meets with the parties together.
CAW v. Buhler Versatile Inc., 2001 MLB
Decision: Employer breached duty to bargain in good faith and there was a 4 month strike. Employer
was ordered to compensate for lost wages ($3 million for 250 employees)
Note: Should this be done? Yes, if the breach of DBGF is the main cause of the strike. If the strike was
over an issue other than the breach of DBGF than the principle really should apply, but there hasn’t
been enough case law to definitively determine this. The focus is on punitive v. compensatory – this
award was not punitive because the breach of DBGF was directly connected to the strike and the
employees needed to be compensated for the lost wages that were an ultimate result of the employer
breach of DBGF.
USW v. Neenah, 2006 OLRB
Facts: Sectoral bargaining is bargaining in a specific sector between employer association (created by a
group of employers to act as a bargaining agent) and the union representing a bargaining unit from each
of the employers within the employer association. Negotiations between Neenah and the steel workers
were not part of this sectoral bargaining. Traditionally, Neenah and USW would negotiate their own
collective agreement slightly after the collective agreement of the other companies in the form of
pattern bargaining – union would attempt to use the sectoral collective agreement as a template for the
agreement with Neenah on the basis that the employees are in the same industry doing the same work
and therefore deserve the same terms. On June 2, 2005 the notice to bargain was given, on August 31,
2005 the collective agreement expired, on October 6, 2005 conciliation took place, on October 13, 2005
the employer proposed the resumption of bargaining (union wanted to keep waiting) and on October
27, 2005 the company said no more waiting to the union. On November 18, 2005 a “no Bd” report was
sent, on November 25, 2005 the company made another concessionary proposal (will be implemented
on December 5, 2005 unless negotiations resume). The union alleged ULPs (s.86 and s.17) but refuses to
negotiate. Company sends memo to employees. On December 5, 2005 the concessionary proposal is
implemented unilaterally (as company is in lock-out position).
Decision: Employer did not violate s. 86 (statutory freeze). Once the parties are in a strike/lock-out
position s.86 does not prevent an employer from unilaterally altering terms and conditions. It doesn’t
have to be an actual strike/lock-out to thaw. No violation of s.17 DBGF – the right to impose terms and
77
conditions of employment arises after the end of statutory freeze and the parties are at an impasse or
there is a bona fide business reason for immediate action. In this case, an impasse existed. The employer
was not intending to undermine the union’s bargaining authority and were in fact not undermining the
union as only minor concessions were being asked for. The union was also not negotiating in bad faith,
they were just partaking in pattern bargaining.
Note: Remember tests before statutory freeze: Business as before; reasonable expectations; and
“collective bargaining test” - Certification freeze or bargaining freeze: it is not that the parties are
prevented entirely from changing the terms – there are tests for whether or not a change would be
reasonable
•
Business as before, reasonable expectations (usually applied during certification freeze) and the
collective bargaining test (during bargaining freeze)
•
After the expiry of the freeze, if the parties are continuing to bargain, the employer can’t
unilaterally change the conditions of agreement until the parties negotiate to a point of impasse
(even if the freeze is over) or unless there are bona fide business reasons for action
•
In this case, the statutory freeze had ended and the parties had reached an impasse and so the
employer was entitled to make minor concessions to the terms of employment
•
Had the employer made major concessions the board would have been more concerned
because major concessions would likely lead employees to blame the union and
potentially risk decertification – which would unfairly benefit the employer
First Contract Arbitration


First contract interest arbitration if the parties do not reach settlement in negotiations for the
first collective agreement after certification.
Interest arbitration is where an arbitrator actually determines what should be the terms of the
collective agreement, not on the basis of rights, but rather on the basis of the parties’ interests.
Yarrow Lodge v. Hospital Employees’ Union, 1993 BCLRB
Decision: Criteria for terms and conditions: (1) no innovative clauses, (2) Objectives (e.g. comparability),
(3) Internal consistency/equity, (4) Financial state of employer and (5) Conditions of sector/industry
Teamsters v. Lafarge, 2004 OLRB
Facts: Teamsters and Lafarge parties to collective agreement which expired March 31, 1997. The
agreement covered employees in Toronto. Terms of collective agreement: it is agreed that in the event
the employer should engage in ready-mix operations in the area outside of the geographic area of this
agreement (Peel-Halton) and within the area defined below, the employer will recognize Local 230 as
the bargaining agent for the employees performing like duties to those performed by employees
covered by this Agreement. In June 1997 the Union became aware of ready-mix operations in the
defined area and gave notice to bargain. Lafarge resists occasional attempts to bargain from 1997 to
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2002. The parties only disagreed about whether there are employees in the bargaining unit. Lafarge
claims they are employees of a subcontractor. The union claims they are employees of Lafarge.
Issue: Does the company have an obligation to bargain in respect of an empty bargaining unit?
Assuming there is an empty bargaining unit, can the Board order first contract arbitration?
43(1) First agreement arbitration: Where the parties are unable to effect a first collective
agreement and the Minister has released a notice that it is not considered advisable to appoint
a conciliation board or the Minister has released the report of a conciliation board, either pary
may apply to the Board to direct the settlement of a first collective agreement by arbitration
43(2) Duty of Board: The Board shall consider and make its decision on an application under
subsection (1) within 30 days of receiving the application and it shall direct the settlement of a
first collective agreement by arbitration where, irrespective of whether section 17 has been
contravened, it appears to the Board that the process of collective bargaining has been
unsuccessful because of,
(a) The refusal of the employer to recognize the bargaining authority of the trade
union;
(b) The uncompromising nature of any bargaining position adopted by the
respondent without reasonable justification;
(c) The failure of the respondent to make reasonable or expeditious efforts to
conclude a collective agreement; or
(d) Any other reason the Board considers relevant
44(1) Mandatory ratification vote: A proposed collective agreement that is entered into or
memorandum of settlement that is concluded on or after the day on which this section comes
into force has no effect until it is ratified as described in subsection (3).
44(2) Exceptions: Subsection (1) does not apply with respect to a collective agreement,
(a)
(b)
(c)
(d)
Imposed by order of the Board or settled by arbitration;
That reflects an offer accepted by a vote held under section 41 or subsection 42(1)
That applies to employees in the construction industry; or
That applies to employees performing maintenance who are represented by a trade union
that, according to trade union practice, pertains to the construction industry if any of the
employees were referred to their employment by the trade union
Decision: Preconditions set out in s.43(1) have been met. Main issue was whether one or more of
s.43(2) reasons. First contract arbitration is a mechanism available to overcome unjustified intransigence
(not available in all cases of unsuccessful negotiation – just during the negotiation of the first collective
agreement). There is no obligation to bargain at this time. The parties agreed that there were no
employees in the bargaining unit – it was empty from the start and remained empty for some 7 years.
None of s.43(2) enumerated grounds exist – company is refusing to bargain at this time, not refusing to
79
recognize the union’s bargaining authority and bargaining unit work is not being provided by other
employees of Lafarge. The company is justified in refusing to bargain, in light of longstanding empty
bargaining unit. Company has not failed to “make reasonable or expeditious efforts to conclude a
collective agreement” in light of the circumstances. Protection of employees in a different bargaining
unit is not a compelling reason.
Industrial Conflict: Strikes, Lockouts, & Picketing
Introduction







Ultimate means of dispute resolution is economic sanctions
The ability to maintain or withstand work stoppage is critical
Strikes/Lock-outs are rare
o Employees tend to win long strikes
o Strike functions: most often a fight for better wages, job security and working time. Can
resolve pent up and unresolved grievances (spill over from grievance system). To solidify
the support of the rank and file of unions and various positions the union is advocating
for. Creating and “us” and “them” mentality. Show the employer that they have the
resolve to go on strike for subsequent rounds of collective bargaining (not idle threats).
Less common in recession and stagnation of economic activity because employers have
less need to keep an operation going these time
Pluralist approach in Canadian public policy: an acceptance of a plurality of needs and interests
in the employment relationship – 2 groups that are thought to have diverging interests, not
always conflicting but certainly different. Their interests are legitimate and should have a seat at
the table. The system should encourage negotiation and compromise between the two parties.
Repression of the union should be used in the overall system sparingly and kept in the
background so far as possible.
Substitute interest arbitration for strikes/lock-outs: where you can’t come to an agreement, an
arbitrator will decide for you.
o Pros: no work stoppage, no economic sanctions for either party (employer doesn’t lose
profits and employees don’t lose wages), removal of power imbalance
o Cons: more of an incentive in the public sector because work stoppages tend to impose
costs on the public. There is a temptation on the government’s part to stack the rules of
the game in their favour i.e. introduce additional criteria in arbitration (i.e. ability to pay)
intended to have a downward effect on the terms and conditions the arbitrator will
impose. Third party arbitrator doesn’t understand the situation as well as the two
parties involved so the agreement may be suboptimal.
Canada criticized by ILO for frequent use of interest arbitration in the public sector
o Employee rights should only be removed where they are providing an essential service
and Canada has gone beyond this
Governments claim to regulate process of industrial conflict without influencing the results
80
o
This really isn’t possible because the Act is meant to equalize the bargaining power of
the parties which influences the results
Legal Forums


Strike:
o Typically complete cessation of work
o Also rotating or selective strikes, go-slows, work-to-rule campaigns, “study sessions”,
overtime banks, coordinated sick days, consumer boycotts, picketing, hot cargo
declarations and mass resignations
o Seek to restrict or disrupt amount of work done
o Try to induce 3rd parties to cease doing business with the target employer
o 1(1): In this Act, “strike” includes a cessation of work, refusal to work or to continue to
work by employees in combination or in concert or in accordance with a common
understanding, or a slow-down or other concerted activity on the part of employees
designed to restrict or limit output
 Broken down into 3 parts: (1) cessation of work, (2) in combination or in
accordance with a common understanding (employees acting collectively), and
(3) designed to restrict or limit output
 “includes” means this is not exclusive
 Indicates an objective purpose for the strike, which contrasts with BC which is a
subjective purpose test for a strike. For purpose of getting employer to agree –
putting pressure on employer. In Ontario, there doesn’t need to be an intention
to put pressure on the employer (nothing typically turns on this difference)
 The three requirements are interrelated and cannot be thought of as water tight
compartments – both requirements 2 and 3 seem to require some degree of
intentionality.
 The word “design” connotes an element of intentionality. For example if
mine workers refused to work because the union had given them
information about a potential gas leak in the mine, while their refusal to
go down in the mine may very well have the effect of restricting or
limiting output, that is not the “design” or intention.
Lockout
o Employer closes the enterprise to pressure the union
o 1(1): In this Act, “lock-out” includes the closing of a place of employment, a suspension
of work or a refusal by an employer to continue to employ a number of employees, with
a view to compel or induce the employees, or to aid another employer to compel or
induce that employer’s employees, to refrain from exercising rights or privileges under
this Act or to agree to provisions or changes in provisions respecting terms or conditions
of employment or the rights, privileges or duties of the employer, an employers’
organization, the trade union, or the employees;
81




Broken down into 3 parts: (1) must be closing place of employment, suspension
of work, or refusal to employ a number of employees, (2) with a view to compel
the employees (intention to pressure employees and union), and (3) to refrain
from exercising rights under the Act or to agree to provisions or changes in
provisions respecting the terms/conditions of employment.
LRB determines whether a strike/lock-out has occurred and whether it was timely.
o Generally, strikes/lock-outs are prohibited during the life of the collective agreement
 Exception: technological change in BC, MN and federal jurisdiction
o In ON, dispute must be submitted to conciliation or mediation before strike/lock-out
 Purpose: if parties submit, it will decrease the incidence of strikes/lock-outs
because it is possible that the parties do not have enough information and this
process can help with communication
o Compulsory strike votes: Right (by the employer or Minister of Labour) to demand the
union to put to a vote the employer’s last offer
 This should be used very sparingly by the employer because it is going over the
head of the union and can only be used once in a round of collective bargaining
Legality of strike/lock-out depends on whether statutory prerequisites are met
Remedial authority of the Board: cease and desist orders, compensation
40(1) – voluntary arbitration: Despite any other provision of this Act, the parties may at any time
following the giving of notice of desire to bargain under section 16 or 59, irrevocably agree in writing to
refer all matters remaining in dispute between them to an arbitrator or a board of arbitration for final
and binding determination.
41 – Where Minister may require ratification vote: Where, at any time after the commencement of a
strike or lock-out, the Minister is of the opinion that it is in the public interest that the employees in the
affected bargaining unit be given the opportunity to accept or reject the offer of the employer last
received by the trade union in respect of all matters remaining in dispute between the parties, the
Minister may, on such terms as he or she considers necessary, direct that a vote of the employees in the
bargaining unit to accept or reject the offer be held forthwith.
42(1) – Vote on employer’s offer: Before or after the commencement of a strike or lock-out, the
employer of the employees in the affected bargaining unit may request that a vote of the employees be
taken as to the acceptance or rejection of the offer of the employer last received by the trade union in
respect of all matters remaining in dispute between the parties and the Minister shall, and in the
construction industry the Minister may, on the terms that he or she considers necessary direct that a
vote of the employees to accept or reject the offer be held and thereafter no further such request shall
be made
44(1) – Mandatory ratification vote: A proposed collective agreement that is entered into or
memorandum of settlement that is concluded on or after the day on which this section comes into force
has no effect until it is ratified as described in subsection (3).
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44(2) – Exceptions: Subsection (1) does not apply with respect to a collective agreement,
(a) imposed by order of the Board or settled by arbitration;
(b) that reflects an offer accepted by a vote held under section 41 or subsection 42(1);
(c) that applies to employees in the construction industry; or
(d) that applies to the employees performing the maintenance who are represented by a trade
union that, according to trade union practice, pertains to the construction industry if any of the
employees were referred to their employment by the trade union
44(3) – Vote: Subject to section 79.1, a proposed collective agreement or memorandum of settlement is
ratified if a vote is taken in accordance with subsections 79 (7) to (9) and more than 50 per cent of those
voting vote in favour of ratifying the agreement or memorandum. (50% + 1 of those who vote must be
in favour)
79(1) – Strike or lock-out: Where a collective agreement is in operation, no employee bound by the
agreement shall strike and no employer bound by the agreement shall lock out such an employee
79(2) – No agreement: Where no collective agreement is in operation, no employee shall strike and no
employer shall lock-out an employee until the Minister has appointed a conciliation officer or a
mediator under this Act, and
(a) seven day have elapsed after the day the Minister has released or is deemed pursuant to
subsection 122(2) to have released to the parties the report of a conciliation board or mediator;
or
(b) 14 days have elapsed after the day the Minister has released or is deemed pursuant to
subsection 122(2) to have released to the parties a notice that he or she does not consider it
advisable to appoint a conciliation board

This provision, especially (b) is very important as it sets out the timing for strikes/lock-outs
(thought to be cooling off period)
79(3) – No agreement: If a collective agreement is or has been in operation, no employee shall strike
unless a strike vote is taken 30 days or less before the collective agreement expires or at any time after
the agreement expires and more than 50 per cent of those voting vote in favour of a strike
79(6) – Threatening strike or lock-out: No employee shall threaten an unlawful strike and no employer
shall threaten an unlawful lock-out of an employee
79(8) – Same: All employees in a bargaining unit, whether or not the employees are members of the
trade union or of any constituent union of a council of trade unions, shall be entitled to participate in a
strike vote or a vote to ratify a proposed collective agreement or memorandum of settlement
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80(1) – Reinstatement of employee: Where an employee engaging in a lawful strike makes an
unconditional application in writing to the employee’s employer within six months from the
commencement of the lawful strike to return to work, the employer shall, subject to subsection (2),
reinstate the employee in the employee’s former employment, on such terms as the employer and
employee may agree upon, and the employer in offering terms of employment shall not discriminate
against the employee for exercising or have exercised any rights under this Act.


In an non-unionized setting the employee could withdraw labour in order to pressure employer
to succumb to higher terms and conditions but their job may be put in danger. This is not the
case for union employees – they have a right to be reinstated in their prior position without
discrimination of reprisal
To take advantage of this provision, the strike must be lawful and cannot last longer than 6
months
81 – Unlawful strike: No trade union or council of trade unions shall call or authorize or threaten to call
or authorize an unlawful strike and no officer, official or agent of a trade union or council of trade unions
shall counsel, procure, support or encourage an unlawful strike or threaten an unlawful strike
82 – Unlawful lock-out: No employer or employers’ organization shall call or authorize or threaten to
call or authorize an unlawful lock-out and no officer, official or agent of an employer or employers’
organization shall counsel, procure, support or encourage an unlawful lock-out or threaten an unlawful
lock-out
85 – Refusal to engage in unlawful strike: No trade union shall suspend, expel or penalize in any way a
member because the member has refused to engage in or to continue to engage in a strike that is
unlawful under this Act
Legal Forums
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
Courts play an active, important, but narrow role regarding strikes and lock-outs
Grievance arbitrators also play a role
o No strike clauses enforced through grievance procedure and arbitrations (s.48(1))
o Can award damages
o Collective agreement provisions regarding respecting picket lines
Role of the Courts: Criminal Jurisdiction
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Criminal law regulates the conduct of picketing
Basic criminal code prohibitions against assault, mischief
Provincial trespass to property legislation
“watching and besetting” is applicable to industrial conflict (s.42 of the CCC)
Criminal Code of Canada
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423(1) – Intimidation: every one is guilty on an indictable offence and liable to imprisonment for a term
of not more than five years or is guilty of an offence punishable on summary conviction who, wrongfully
and without lawful authority, for the purpose of compelling another person to abstain from doing
anything that he or she has a lawful right to do, or to do anything that he or she has a lawful right to
abstain from doing (f) besets or watches the place where that person resides, works, carries on business
or happens to be
423(2) – Exception: A person who attends at or near or approaches a dwelling house or place, for the
purpose only of obtaining or communicating information, does not watch or beset within the meaning
of this section.
Role of the Courts: Quasi-Criminal Jurisdiction
Ontario Labour Relations Act
104(1) – Offences: Every person, trade union, council of trade unions or employers’ organization that
contravenes any provision of this Act or of any decision, determination, interim order, order, direction,
declaration or ruling made under this Act is guilty of an offence and on conviction is liable,
(a) if an individual, to a fine of not more than $2,000; or
(b) if a corporation, trade union, council of trade unions or employers’ organization, to a fine of not
more than $25,000
104(3) – Disposition of fines: Every fine recovered for an offence under this Act shall be paid to the
Treasurer of Ontario and shall form part of the Consolidated Revenue Fund.
109(1) – Consent: No prosecution for an offence under this Act shall be instituted except with the
consent in writing of the Board.
109(2) – Information: An application for consent to institute a prosecution for an offence under this Act
may be made by a trade union, a council of trade unions, a corporation or an employers’ organization
among others, and, if the consent is given by the Board, the information may be laid by any officer,
official or member of the trade union, council of trade unions, corporation or employers’ organization
among others

Actual prosecution and fines have always been rare but have become more rare for a number of
reasons:
o Prosecution needs to be initiated by employer or union, requirement of consent
o The party seeking the consent must establish a prima facie case (even though this is not
specified in the legislation)
o Where the board believes there is some other remedy available in the Act, they will not
go the route of criminal prosecution
o For the aggrieved party, this is a long process with a lot of high bars to meet and for
little incentive as any award goes to the government and not the aggrieved party
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Role of Courts: Civil Jurisdiction


Injunction preserves status quo pending trial
o Risk of irreparable harm
o Inadequacy of monetary damages as compensation
o Legitimate cause of action; and
o A proper defendant
2 Steps:
o Lawsuit
o Interlocutory injunction
Pleading a Cause of Action: Tort Illegalities
1. Tort of Conspiracy to Injure by Lawful Means



Requires:
o (1) a combination of 2 or more persons’
o (2) an intention to cause economic injury and the causing of such injury;
o (3) a predominant purpose or motive that is not a legitimate interest
Where the conspirators have a wrongful objective – problem with this is the subjective element
of determining whether or not something is a legitimate interest of a wrongful objective.
Example: group of trade unionists who decide it’s a good idea to persuade the employer to
dismiss a group of non-unionized employees and hire its union members instead. They persuade
the employer to implement a “closed shop” in which only members of the union are able to
work for that employer
Rights of Labour Act
s.3(1) Acts done by two or more members: Any act done by two or more members of a trade union, if
done in contemplation or furtherance of a trade dispute, is not actionable unless that act would be
actionable if done without any agreement or combination

Removing the element of the test that requires that there be 2 or more persons and thereby
removing the tort of conspiracy to injure by lawful means – if the element of 2 or more persons
is gone it can no longer be considered a conspiracy
2. Tort of Conspiracy to Injure by Unlawful Means

Requires:
o (1) A combination of 2 or more persons;
o (2) An intention to cause economic injury;
o (3) Use of unlawful means to cause the injury
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Rookes v. Barnard, 1964 House of Lords
Facts: Note that because this is an English case there are some differences in labour law. In this case, the
union had a group of drafts people (two of which were Rookes and Barnard). At one point, both
individuals were union officials. There was a collective agreement between both the employer and the
draftspersons union, which had a main provision stating that there were to be no strikes during the
duration of the collective agreement. There was also a provision that stipulated that the employer
agreed to only employ union members. Rookes became disillusioned and resigned from the union. The
union took steps to try to bring Rookes back into the union and when we declined the union went to the
employer (led by Barnard) and said that Rookes needed to be terminated because he was no longer a
union member. Employer resisted at first but then suspended Rookes temporarily and then terminated
him in accordance with the notice term (1 week) of his contract of employment. Rookes had no recourse
against the employer because the termination was lawful and he was given the required notice. Rookes
brought an action alleging economic tort on the part of the union – tort of conspiracy to injure by
unlawful means. There was a combination of two or more persons (numerous union members pressed
the employer to terminate Rookes), there was an intention to cause economic injury which resulted in
the loss of Rookes’ job, and there was a use of unlawful means to cause the injury (it was unlawful for
the union to threaten strike in the middle of the collective agreement if the employer did not terminate
Rookes)
Reasons: Union tried to argue Rookes did not have a cause of action against it on the grounds that he
did not have a cause of action against the employer. Court disagreed with the argument and said all that
was necessary is evidence of unlawful means. The union also tried to argue the equivalent of s.3(1) of
the Rights of Labour Act to argue that this was an act done by two or more members of the trade union
and therefore should resolve the union of any liability. Court said that there was another economic tort
that could be used against Barnard and the other union members – the threat of an unlawful strike was
an unlawful means and there s.3(1) does not help the union because in this case, the act is actionable
regardless of whether or not there was agreement or combination on the part of union members. In
England at the time, there were two economic torts, one of them was pretty much the same as the tort
of conspiracy by unlawful means. Court held that the union could not defend itself on the basis of s.3(1)
solely by being able to knock out the requirement of combination of 2 or more persons. The tort of
inducing breach of contract had the second requirements and not the first.
Note: In very general terms, s.3(1) of the Rights of Labour Act has eliminated both forms of the tort of
conspiracy (lawful and unlawful means) for acts of trade unions “done in contemplation or furtherance
of a trade dispute”. The tort of conspiracy to injure by lawful means wasn’t at play in Rookes because
unlawful means were being allege. The unlawful means were that 3 union representatives (including
Barnard) were threatening to encourage all union members to go on strike (and breach their individual
employment contracts) if the employer didn’t terminate Rookes. One of the issues in the case was
whether the tort of conspiracy by unlawful means was made out. It was ruled that the three union
representatives were not liable under this tort because the equivalent to s.3(1) in England stated that
“an act done by two or more members of a trade union is not actionable unless the act would be
actionable if done without agreement”. Therefore, it was impossible for Rookes to successfully
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established the tort of conspiracy by unlawful means because one of the elements of the tort is a
combination of two or more persons. This result applies to Ontario. S.3(1) has likely invalidated any
action for either to tort of conspiracy by lawful or unlawful means in relation to union activities related
to a labour dispute. This is because both of these torts have, as an element, the requirement for a
combination of two or more persons.
But the analysis didn’t end there. The further issues in Rookes is whether the three union
representatives may have committed another tort. The court found that the union representatives were
liable under the tort of intimidation. The common law eventually came to a consensus as to the
elements of this tort. Rookes actually helped to establish these elements, which are as follows: (1) an
intention by the defendant (here, 3 union reps) to injure the plaintiff economically; (2) a threat by the
defendant to use unlawful means against a third party unless the latter takes action that will injure the
plaintiff economically; and (3) action by the 3rd party against the plaintiff which is lawful in itself but
causes the plaintiff economic injury.
In defending themselves the union representatives tried to argue that a necessary component of their
threat involved employees acting in combination (all union members would go on strike). In order for
the threat to be effective it involved an element of having to be carried out in combination (employer
only responded because all employees would strike if he didn’t). The court said that even though the
treat involved collective action, the threat by each union rep was actionable against each of them. The
threat perhaps requires the potential mobilization of all union members to have its coercive power but
s.3(1) was not intended to extend immunity to union reps for this. What you can take from this is that
where collective action is only indirectly involved in one of the elements of a tort, union members will
not be shielded from liability by s.3(1). However, where collective action is a specific separate
component of the tort in question (i.e. the conspiracy torts) the union members will be protected from
liability.
3. Tort of Directly Inducing Breach of Contract


Requires:
o (1) An intention to cause economic injury;
o (2) Knowledge of contract (ought reasonably believe or recklessness);
o (3) Use of lawful means to persuade third party to breach (would like to see act, and
does act);
o (4) Breach of contract; and
o (5) Economic injury as a reasonable consequence
Example: Union is on strike and you have a non-unionized employee who decides to cross the
picket line. Union attempts to persuade the employer to terminate that employee (without
reasonable notice). If the employer does terminate the employee without reasonable notice,
this would make out the tort of directly inducing breach of contract.
4. Other Applicable Torts

Indirectly procuring breach of contract by unlawful means;
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


Direct interference with contractual relations failing short of breach;
Tort of intimidation
Tort of intentional injury by use of unlawful means
A violation of labour relations legislation grounds liability in tort. Economic torts now important where
collective action does not breach labour legislation or other statutes


A violation of labour relations legislation can be used to ground liability in tort.
o First, the violation may cause a tort itself
o Second, non-compliance of the statute can constitute an element of illegality necessary
to make out a tort in question.
 This is contrary to the way the law works in most other areas. For example, the
SCC in Seneca College v. Bhadauria (1981) held that the plaintiff could not sue
her employer civilly for a violation of the Human Rights Code, and instead must
pursue remedies before the Human Rights Tribunal
 However, it is more typical in recent times that where labour legislation is
violated, the aggrieved party will pursue remedies before the labour relations
board, not the court.
Economic torts continue to be important where collective action does not breach labour
legislation. An example of where economic torts would be resorted to presently would be
picketing in a lawful strike where the picketer are encouraging suppliers to refuse to deliver
items that they are under contract to deliver (inducing breach of contract).
Legal Capacity of Trade Unions

Does a union have legal capacity in a civil action?
o Traditional common law approach: trade union a voluntary unincorporated association
o Today, unions do generally have legal status to sue and be sued
Teamsters v. Therien, 1960 SCC
Decision: unions have the same duties and funds subject to same liabilities as private individuals. Union
liable for damages either for breach of provision of BC labour relations act or under common law.
United Nurses of Alberta v. Alberta, 1992 SCC
Decision: Union had status to be prosecuted for criminal contempt
Berry v. Pulley, 2002 SCC
Decision: Union members have a contract with the union itself through the constitution and that
contract can be enforced by legal action (But, in Ontario, see the Rights of Labour Act)
Rights of Labour Act
3(2) – Trade union, party to action: A trade union shall not be made a party to any action in any court
unless it may be so made a party irrespective of this Act or of the Labour Relations Act
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3(2) – Collective bargaining agreement subject to action: A collective bargaining agreement shall not be
subject to any action in any court unless it may be the subject of such action irrespective of this Act or of
the Labour Relations Act
PSAC v. Canada, 2002 ONCA
Facts: Federal union tried to sue in Ontario courts to protect certain pension benefits of its members.
Decision: Court said that the Rights of Labour Act only applies to Ontario unions. Judge expressly
question the logic of the Act in so expressly removing the legal status of unions and commented on the
possibility of unions relying on representative actions
Civil Remedies: Damages


USW v. Gaspe Copper Mines Ltd. (1970, SCC)
o Damages of $1.75 million (and 13 years interest). Union committed criminal and tortious
acts during an illegal strike
B.C. Public Schools v. BCTF (2003, BCSC)
o Federation fined $500,000 for civil contempt. Members violated court order to cease
and desist from illegal strike and union officials encouraged it
Civil Remedies: Injunctions



More significant role than damages
Used to enforce legal limitations on industrial actions – particularly picketing, increased Board
powers for cease and desist orders
Concerns over injunction orders:
o Injunctions tend to be asked for and awarded relatively quickly – concerns over the
haste at which things move
o Injunctions are also often awarded based on affidavit evidence – becomes difficult to
determine what the truth is
o Difficult to appeal and often very broad in scope
Common Law Test
RJR-MacDonald v. Canada (AG), 1994 SCC
Test: (1) Serious question to be tried (non-labour setting); (strong?) prima facie case (labour setting), (2)
irreparable harm, and (3) which party would suffer greater harm?
Prima facie case is actually a higher bar than in the non-labour context where the only requirement is a
serious question to be tried. Employer must show, prima facie, that they have a legitimate chance of
winning the case relevant to the injunctions
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Statutory Requirements
Courts of Justice Act
102(1): In this section, “labour dispute” means a dispute or difference concerning terms, tenure or
conditions of employment or concerning the association or representation of persons in negotiating,
fixing, maintaining, changing or seeking to arrange terms or conditions of employment, regardless of
whether the disputants stand in the proximate relation of employer and employee
102(2) – Notice: Subject to subsection (8), no injunction to restrain a person from an act in connection
with a labour dispute shall be granted without notice
102(4) – Evidence: Subject to subsection (8), affidavit evidence in support of a motion for an injunction
to restrain a person from an act in connection with a labour dispute shall be confined to statement of
facts within the knowledge of the deponent, but any party may by notice to the party filing such
affidavit, and payment of the proper attendance money, require the attendance of the deponent to be
cross examined at the hearing
102(5) – Interim injunction: an interim injunction to restrain a person from an act in connection with a
labour dispute may be granted for a period of no longer than four days
102(6) – Notice: Subject to subsection (8), at least two days’ notice of a motion for an interim injunction
to restrain a person from any act in connection with a labour dispute shall be given to the responding
party and to any other person affected thereby but not named in the notice of motion.
102(8) – Interim injunction without notice: Where notice as required by subsection (6) is not given, the
court may grant an interim injunction where,
(a) the case is otherwise a proper one for the granting of an interim injunction;
(b) notice as required by subsection (6) could not be given because the delay necessary to do so
would result in irreparable damage or injury, a breach of the peace or an interruption in an
essential public service;
(c) reasonable notification, by telephone or otherwise, has been given to the persons affected or,
where any of such persons are members of a labour organization, to an officer of that labour
organization or to the person authorized under section 89 of the Labour Relations Act to accept
service of process under that Act on behalf of that labour organization or trade union, or where
it is shown that such notice could not have been given; and
(d) proof of all material facts for the purpose of clauses (a), (b), and (c) is established by oral
evidence
St. Anne Nackawic v. CPWU, 1986 SCC
Facts: Union represented 2 bargaining units (mill workers and office workers). Office workers went on
legal strike and picketed the mill. Mill workers waged illegal sympathy strike (mill worker strike was
illegal because it was untimely). Company obtained an interlocutory injunction but the Mill workers
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ignored the injunction and continued to strike. The court issued contempt orders and the company
claimed damages.
Issues: Could the court grant an injunction and could the court award damages?
Decision: The court could grant an injunction but could not award damages
Reasons: Both collective agreement and labour statute indicated no strike during the collective
agreement. Both the collective agreement and the labour statute provided for binding arbitration.
Courts have no jurisdiction to consider claims arising out of collective agreement. Judicial deference to
the arbitration process (specialized tribunal with expertise which should be given deference). Labour
legislation designed to govern all aspects of the relationships. Historically, it is common for an employer
to claim an injunction and damages at the outset of an illegal strike and eventually what happens is they
end up in the process of the combined jurisdiction of the OLRB and labour arbitrators. Typically, the
employer claims an injunction to enforce the no strike clause coupled with a claim for damages. The
court does have injunctive power to enforce the labour legislation – this helps to give the employer
some remedy and get the parties back to the labour board and the arbitrators. Labour relations
legislation has changed in Ontario and BC so that boards no have the powers of ceased and desist and
therefore courts no longer get involved in injunction issues. It has also been discussed that arbitrators
are the proper individuals to determine if, where, and how much damages should be awarded.
Note: After this case was decided, the labour relations Boards were given more powers to order
injunctions and injunction like remedies
Damages by Arbitrators
OCA Workers v. Polymer, 1958
Facts: Strike took place during the collective agreement. Employer brought a grievance alleging a
violation of the no-strike clause and claimed damages
Decision: Arbitrator has jurisdiction to award damages against union. The union is liable if the strike is
instigated by steward or committee person of the union. The union is not liable if spontaneous strike
arises and stewards or committee people fail to take immediate action. The union is liable if there is
inaction by higher-level officers during a spontaneous strike.
Reasons: Liability of the union is no automatic. An illegal strike doesn’t have to be “official” – the union
can be liable without having directly ordered the employees to strike. On the other hand, union
members can’t bind the union in contract or vicarious liability via representation – the union is not
automatically liable if a union member represented themselves as acting on behalf of the union and
suggested the employees should strike. There must be a failure of the union to take prompt action to
end the illegal strike.
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Arbitration: Strike Discipline

Illegal strike does not terminate the employment relationship but the employee can be
disciplined for an illegal strike
Rogers Cable v. IBEW, 1987 CLRB
Facts: Legal strike took place but was rancorous with numerous picketing incidents – employees
pounded vehicles with wood, broke mirrors, slashed tires etc. on company vehicles, disrupted service to
customers and threatened, with knives, people who crossed the picket lines. Employer imposed
discipline on 8 employees and the union claimed this was a ULP on the basis that the employment
relationship seized during the strike and therefore the employer had no jurisdiction to impose discipline
on employees for actions taken during a legal strike.
Decision: Once the strike or lock-out is over the employer can discipline employees for acts during the
strike, but not for the simple act of partaking in the legal strike
Reasons: this is analogous to other authorized leaves of absence. There are limited circumstances where
the conduct of the employee undermines the viability of the employment relationship. Acts of violence
or of wilful damage are not lawful activities of a trade union.
Picketing




Common Ingredients of Picketing
o Physical presence of “pickets”
o Conveying information
o Object of persuasion
It is generally accepted that pickets are allowed to cause a degree of inconvenience and
interruption to employer and customers
o If the disruption becomes persistent and prevents the employer and customers from
doing business, it may become grounds for an injunction
The purpose is to dissuade customers, suppliers etc. from engaging in business with the
employer and therefore the picket line itself becomes the focus of the conflict.
o The employees are attempting to cause the employer to face costs associated with
picketing and the employer is trying to minimize costs and ensure the premises are
accessible and capable of continuing business
Attempts by courts and arbitrators to make definitive statements about what is and isn’t
acceptable during picketing has proven to be difficult
Primary vs. Secondary Picketing




Primary picketing is done at the employers place of business
Secondary picketing is done anywhere else i.e. at a customer who sells the employer’s goods
Historically, there has been more tolerance for primary picketing
SCC rejected distinction at common law but it is stll used in statutory regulation
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Regulatory Scheme: British Columbia


Most jurisdictions do not explicitly deal with picketing
o Courts have a major role in regulating picketing
o BC is the major exception – the Labour Relations Board has a comprehensive authority
to regulate location of picketing, including secondary picketing
The BC approach has been in place for many decades but there are caveats to the BC Labour
Board’s ability to regulate picketing – see Canex Placer v. CAIMAW
Canex Placer v. CAIMAW, 1975 BCLRB
Facts: Legal strike took place at the employer’s mine. Picketers blocked access to the mine by standing
on the road. There were also isolated threats of violence. The employer applied to the BCLRB for an
order prohibiting the picketing
Issue: Did the BCLRB have the jurisdiction to enforce (1) Criminal Code prohibition of threats, (2)
Highway Act offence of obstruction of traffic, and (3) common law torts of assault and battery?
Decision: BCLRB lacked jurisdiction over “how” of picketing (manner in which picketing is carried on).
BCLRB can only regulate the place, timing and object of picketing
Reasons: When you regulate the “how” of picketing, it can result in picketing becoming far less
effective. There was also concern over boards being able to enforce how restrictions (i.e. blocking roads)
when this enforcement has typically been within the jurisdiction of the courts.
Regulatory Scheme: Ontario


OLRB has broad remedial authority with regards to illegal strikes and the conduct which causes
such strikes including picketing
OLRB can issue cease and desist orders when: “any person has done or is threatening to do any
act and the person knows or ought to know that, as a probable and reasonable consequence of
the act, another person or persons will engage in an unlawful strike” (s.100)
83(1) – Causing unlawful strikes, lock-outs: No person shall do any act if the person knows or ought to
know that, as a probable and reasonable consequence of the act, another person or persons will engage
in an unlawful strike or an unlawful lock-out
83(2) – Application of subsection (1): Subsection (1) does not apply to any act done in connection with a
lawful strike or lawful lock-out
TTC Case, 1996 OLRB
Decision: Board issued a limited injunction to prevent picketing prior to 6:30 am so that TCC workers
could get into work and begin operations. Board balanced the interests of both parties
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GM case
Facts: Picketing had elements of both political protest and a strike. Union argued it shouldn’t be
considered a strike, that it was more a political protest.
Decision: Union probably would have been right in BC but weren’t right in Ontario because of the
differing definitions of strike (BC is subjective, Ontario is objective). Board didn’t want to order a cease
and desist order in light of the unclear state of the law and it wasn’t unfair for the labour leaders to
strike. The board therefore issued simply a declaration that it was an illegal strike with the
understanding that the labour leaders would follow the declaration and the clarification of the law
Primary Picketing



Limitations tend to be based in general tort law and criminal law
o Prohibitions against physical obstruction, nuisance, assault, property damage, and
trespass
Peaceful and informative versus violent and obstructive
Some interference with civil and legal rights of others is okay
Harrison v. Carswell, 1976 SCC
Facts: Carswell was the employee of a tenant in the mall. There was a lawful strike and Carswell was
picketing on the sidewalk in front of the tenant’s premises. Mall owner had Carswell charged under the
Petty Trespasses Act of Manitoba.
Decision: Trespass conviction restored. The right of the individual (mall owner) to unfettered enjoyment
of property is paramount
Dissent: Laskin said that Carswell was entitled to privilege of entry and to remain in public due to being
a member of the public and an employee in a labour dispute. Carswell’s right to picket supersedes the
mall owner’s property rights.
Note: This was a pre-Charter case – it likely would have been decided differently today. Where there is a
peaceful protest, the ability of employers and third party allies to prevent such protests has been
severely limited. Where employers are successful in preventing this kind of action, it is usually the result
of satisfying the prerequisites of injunctions.
Note: After this case, the Manitoba legislature amended the Act such that going on private property for
picketing purposes is not a violation of the trespass Act
Cancoil Thermal v. Abbott, 2004 ONSC
Facts: Two related companies shared an entrance way. The employees of Thermal went on a legal strike
and picketed outside the premises of the related companies. Thermal ended up shutting down for the
duration of the labour dispute. The picketing employees imposed a limited right of access to the
premises (imposed a 15 minute wait time for any individual vehicle that wants to enter into the
premise). Abbot sought an interlocutory injunction but the problem is that the strike had been very
orderly, without any violence, and the picketers have not outright restricted access to the premises.
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Decision: Court refused to exercise discretion and the employer refused to negotiate picketline
protocol. Application for injunction dismissed
Reasons: Does not meet the RJR MacDonald test for injunctions – no prima facie case (strike and
picketing were orderly and peaceful and not sufficiently obstructive in nature, duration or effect), no
irreparable harm to employer (no crime, tort, or incompensible damages), and the balance of
convenience favours the union (usually a total obstruction for a long period of time is required here).
Picketing plays a vital role in labour disputes. Picketing is a constitutionally protected manifestation of
freedom of expression. Picketing must be respected and promoted until the line of tort of criminality is
crossed. Picketing is not merely tolerated or restricted in deference to property rights. Some delay and
inconvenience for employers is acceptable. Relevant considerations in obstruction of entry cases:
degree of obstruction, duration per occasion, how many days. Injunctions are extraordinary and
discretionary.
Secondary Picketing
Hersees v. Goldstein, 1963 ONCA
Facts: Labour dispute between Deacon company and union. Hersees is a retail merchant that sells some
of Deacon’s goods. Union rep requested that Herees cancel any orders with Deacon or their store would
be picketed. One or two union members then picketed Hersees.
Decision: Union members guilty of “watching/besetting” under the CCC. Even if not contrary to the
Criminal Code, it should still be restrained. Any right to secondary picketing must give way to the right of
trade
Note: This is the old secondary picketing model that essentially held secondary picketing was not
allowed. This has been overruled by the SCC but it is important to know about because these principles
were in place for decades and cited by numerous courts in Canada. In Pepsi, the court considered
various models of permitting picketing and the Hersees model was one that was considered and
rejected.
Pepsi v. RWDSU Local 558, 2002 SCC
Facts: Legal strike/lock-out between Pepsi and employees in Saskatchewan. There was peaceful
picketing of retail stores that sold Pepsi.
Lower Court Decisions: Queen’s Bench granted injunction prohibiting secondary picketing citing the tort
of conspiracy to injure 3rd parties. The Court of Appeal struck down the injunction
Issue: When is secondary picketing legal at common law?
Decision: Court quashed the injunction of picketing retail stores – no tort or crime committed by union
or union members. Court upheld the injunction against picketing at private homes of Pepsi employees.
Reasons: McLachlin and LeBel stated that secondary picketing is lawful unless it involves tortious or
criminal conduct. The purposes of the picketing must be to convey information in order to gain support
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and to apply social and economic pressure. Picketing always involves expressive action (freedom of
expression engages s.2(b) of the Charter. Freedom of Expression is critical in the labour context – it
enables employees to define and articulate common interests and enable employees to elicit support
from the public. The freedom of expression is not absolute though and is curtailed by s.1 of the Charter.
Innocent 3rd parties should be shielded from undue hard.
3 potential solutions:
(1) secondary picketing is illegal per se (Hersees model),
(2) A bar on secondary picketing except for “allied” enterprises (modified Hersees approach – became
difficult to ascertain with certainty when exceptions would apply)
(3) permit secondary picketing unless it amounts to a tort or a crime.
Court concluded that the wrongful action model was best as it balances interests in conformity with the
Charter. Torts will protect property interests and ensure access e.g. trespass, intimidation, nuisance and
inducing breach of contract. The wrongful action approach focuses on character and effects of picketing
as opposed to its location.
Issues After Pepsi



Labour relations acts of some provinces distinguish between primary and secondary picketing
o This is likely not okay in light of the Charter
AB, NB, and Nfld prohibit all secondary picketing, even against “allies”
o ABLRB found the distinction to be a limitation on FOE but the legislature has ignored this
decision and still absolutely prohibits secondary picketing
o SCC has said it is permissible for legislatures to impose certain limits on picketing
Economic torts important in the context of labour regulation of picketing
o Secondary picketing can’t be used to establish “unlawful means”
Alternatives to Strikes and Lockouts
Background


In the public sector, legislature have imposed restrictions on the right to strike (RTS)
o Standing
o Ad hoc: back to work legislation i.e. instead of restricting the RTS beforehand, the
government can wait and see what happens and if the strike drags on too long or seems
to be harming public interests, they can legislate workers back to work
Purposes of restrictions:
o Balance budgets
o Limit inflation
o Maintain essential services
Interest Arbitration (Alternative to RTS)
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

Until 1993, Ontario government changed to a limited RTS model.
o Gives workers the RTS albeit in a more limited fashion – only a subset of workers in a
bargaining unit are allowed to strike. There are a critical mass of employees in the
bargaining unit that must continue working in order to provide “essential services”
o The parties are expected to get together to negotiate an essential services agreement
which states that in the event of a strike, we agree that this level of employment is
necessary to maintain the most essential services
By the end of the 1990’s there was a revival of militancy – use of interest arbitration to settle
the negotiations
Essential Services Legislation





Concerns that public will suffer undue hardship from stoppages e.g. health care workers
Is the service really essential?
o No easy way to determine this – something may not be essential but if the strike drags
on it becomes a serious issue i.e. garbage collection
Can “essential” services be provided on limited basis?
What about industries that are extremely important economically?
How to determine types and levels of services to be maintained?
o Legislative specification and negotiation
Interest Arbitration



Two concerns about giving public sector employees the RTS:
o (1) removal of “essential” services places too heavy a burden on the public
o (2) too much power in the hands of public employee unions (political and economic
pressure)
Arbitration is thought to be a reasonable alternative
Problems:
o Reduced chance of agreement – threat of strike is a more powerful inducement to settle
o Fear of making concessions during bargaining – chilling effect, arbitrator might “split the
difference”; parties will make unreasonable demands so that they are no making more
concessions than they wanted to when the arbitrator splits the difference.
o Arbitration is habit forming – “narcotic effect”; parties get addicted to arbitration rather
than trying to go through the difficult task of hashing out problems themselves. They
will learn it is easier to submit issues to an arbitrator and allow them to impose an
agreement
Association of Justice Counsel v. Canada (Attorney General), 2012 ONCA
Decision: Further negotiation may be possible after the constitutionally protected phase of the process
of bargaining has concluded but that possibility, a remote one on the facts of this case, does not expand
the scope of the protected right. Fraser makes it clear that s.2(d) has limits: it does not guarantee any
dispute resolution process after the parties have reached an impasse and it does not guarantee any
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particular outcome. In the courts view, the validity of the ERA had to be assessed on the basis of
whether, at the time it was enacted, the parties had the opportunity for a meaningful process of
collective bargaining. If they had, s2(d) was satisfied. The faint hope of further negotiations in the
shadow of a dispute resolution mechanism not protected by s.2(d) cannot expand or extent the reach of
s.2(d) beyond its core guarantee. The AJC failed to demonstrate that the ERA infringed the rights of its
members to engage in a meaningful process of collective bargaining and the claim under s.2(d) must fail.
Works Stoppages & Dispute Resolution in the Public Sector
Toronto v. TCEU, 2012 OLRB
Facts: City and union engaged in collective bargaining. Ambulance Services Collective Bargaining Act
requires parties to negotiate essential services agreement (ESA) and either party can apply to the board
for a determination. Application filed by the City asking the Board to set the number of ambulance
workers that must keep working in the event of a strike/lock-out. The city requested full complement
(100%) which would be 319 on weekdays and 274 on weekends. The union requests that a 2002 Boarch
award be used as a benchmark which would require 225 on weekdays, plus 5% and 175 on weekends,
plus 5%.
Decision: Board looked at the two competing interests: public safety being a prominent consideration
and protecting free collective bargaining (for this to happen there needs to be some negative
repercussions in the event of a strike/lock-out). The previous Board order is relevant but not dispositive
of the issue (not surprising because it was made about 10 years before and the composition of the
ambulance force had changed and the Board needs to look at services right now). Board says if all
workers are essential, there would be no reason to permit strikes/lock-outs. Union made a careful
argument on what was essential and non-essential. Board carefully reviewed statistics and standards
and found the level should be 85% of the paramedic complement – somewhere between that the
employer and the union requested
RCMP v. Canada (Meredith), 2011 FCA
Facts: Pay and allowances for RCMP established by the Treasury Board (branch of the Federal
government) and there is no collective bargaining. RCMP have the Staff Relations Representatives
Program (SRRP) and SRRP representatives make submissions to the Commissioner concerning pay and
benefits. There is no predetermined mechanism for RCMP’s to object to wage determination made by
the Treasury Board. Pay council is comprised of 2 staff representatives, 2 RCMP management
representatives, and an impartial chair. Pay Council makes recommendations to the Commissioner
concerning compensation (consensus and collaboration). If the Commissioner accepts the
recommendation, he forwards it to the Minister. The Minister then chooses whether to submit the
recommendation to the Treasury Board. There are no direct negotiations between the Pay Council and
Treasury Board or the SRRP and Treasury Board. Treasury Board Secretariat communicates the decision
to the deputy head of the institution. TBS announced RCMP pay increases (3.32% for 2008, 3.5% for
2009, 2% for 2010 and also a service pay increase to the Field Trainer Allowance). After the
announcement was made the global economy deteriorated and the government decided to limit wage
increased for Federal public sector servants. In November 2008, TBS informed the Commissioner that
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wages increases would be limited to 1.5% for 2009, 2010 and 2011. There were no negotiations or
discussion with the RCMP about the changes. In November, the Minister of Finance issued a public
statement about the limits. On December 11, 2008, the Treasury Board approved modification to the
Announcement (Decision). The next day the SRRP, Pay Council and members were informed of the
decision. There were some meetings between the SRRP, Pay Council, Minister and MPs but there was
ultimately no variation of the decision. On February 6, 2007 the Expenditure Restraint Act was tabled
and received Royal Assent on March 12, 2009. Following the passage of the ERA, a number of wage
improvements were approved by the Treasury Board (transformation allowances, Service pay increased
for certain members, changes to stand-by pay). Improvements permitted by s.62 of ERA. Meredith
commenced a representative proceeding seeking to quash the treasury board decision as a violation of
s.2(d) of the Charter
FC Issue: Do the ERA and decision make if effectively impossible for Pay Council to make representations
and have them considered in good faith?
FC Decision: The decision and the ERA violate s.2(d) of the Charter (effectively impossible) and are not
saved by s.1
FCA Issues: (1) did the judge err by reviewing the constitutionality of the decision and ERA together? (2)
What is the relationship between the decision and the ERA? (3) If there was a violation, is it saved by s.1
of the Charter?
Decision: Issue 1: Lower court judge did not conduct separate analysis of the decision and the ERA.
RCMP alleges the government violated s.2(d) in two ways: as employer (decision) and as legislator (ERA).
The judge committed an error in law by failing to conduct a separate contextual analysis for each issue.
Issue 2: ERA gave statutory effect to December 2008 decision. If the ERA is valid, the December 2008
decision is valid. Issue 3: Court applied BC Health Services and Fraser. Key contextual factors are the
nature of the members’ association activity (consensual and collaborative role, no direct consultation or
negotiation), purpose of the ERA (to deal with economic crisis, reduce pressure on public sector
compensation, provide leadership in demonstrating restraint, maintain soundness of government’s fiscal
position), effect upon members (must look at application of legal principles). Application of legal
principles: ERA did not make it impossible for members to exercise freedom of association. SRRP reps
did not bargain directly with the employer. ERA modified the terms and conditions which the Treasury
Board was authorized to set. Pay Council exerted meaningful influence over working conditions. Limit on
future wage increases time-limited and minor.
Federal Government Dockyard Trades and Labour Council v. The Attorney General, 2011 BCSC
Facts: ERA imposed a cap on wage increases for members of the federal public service and overrode any
existing collective agreements and arbitration awards which were inconsistent with the terms. The
plaintiffs argued that the legislation unconstitutionally breached their right to freedom of association by
retroactively annulling a term in their collective agreement. The plaintiffs argued that the ERA affected
them in a different manner to all other federal public servants by eliminating a pay increase awarded to
them by arbitration in January 2009, but effective October 1, 2006, more than two years prior to the
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introduction of the ERA. They suggested that every other group who had their pay increased for the
period of 2006-2008 determined before the introduction of the ERA in January 2009 were allowed to
keep those increased, whether or not they were consistent with the salary caps set out in the Act.
Decision: The court concluded that the plaintiffs’ action must be dismissed. The nullification of the
plaintiffs’ 2006 wage increase did not interfere with their right to freedom of association because the
wage increase resulted from binding arbitration. It was a term imposed on the parties and was not the
product of a process of negotiation within the collective bargaining regime. Accordingly, the nullification
of the term in the collective agreement did not undermine a process of good faith negotiation and
consultation that had led to its inclusion in the agreement.
Is There a Constitutional Right to Strike?
Background


Right to Strike not expressly guaranteed by the Charter
o Unions have argued that s.2(d) freedom of association includes right to strike
o Section 2(b) freedom of expression and s.7 liberty also invoked
Curran: The right to collectively bargain (RCB) and the right to strike (RTS) can either be viewed
as “instrumental” for workers’ right to freedom of Association, or they can be viewed as truly
“independent” species of rights under the genus of freedom of association
o In an instrumental conceptualization, the RCB and RTS are viewed as fundamental rights
because they are essential to the basic functioning of unions. This is very similar to the
concept of “derivative” rights. Without the RCB and RTS a union is not able to provide its
members with any useful means of pursuing workplace goals. The union will sooner or
later be decertified and each employee will be left to her own devices – the right to
freedom of association would provide workers with no benefit and would in effect be
hallow
o Under the independent conceptualization, the justification for RCB and RTS is different.
These two rights are fundamental because they are specific species of the right to
freedom of association, derived from a foundational principle, rather than because they
are necessary to the essential functioning of the freedom of association. The
foundational principle is typically symmetry between individual and collective action.
Under the independent view of the RCB, a worker should be free to band together with
fellow employees to negotiate collectively with her employer for improved working
conditions because she is at liberty to negotiate alone for better working conditions.
Under the independent view of the RTS, a worker should be free to cease work in a
concerted fashion with other employees because she is entitled to cease work alone.
Alberta Reference, 1987 SCC
Decision: McIntyre stated that the Freedom of Association does not protect the right to strike or the
right to collectively bargain. The Charter protects individual, not collective, rights and there is a need for
symmetry – you cannot do with a group that which is illegal to do as an individual. Individuals cannot
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unilaterally decide to stop working and except to keep their job, therefore, there is no Charter protected
right to strike
Dissent: Dickson disputed the need for absolute symmetry – felt that it was acceptable to give the
collective rights that the individual doesn’t necessarily have on their own. Also argued that if you accept
that the Charter must be consistent with Canada’s international obligations then there must be a
protected right to strike. ILO convention 87: Canada ratified the convention in 1972 and based on the
wording of that convention, and the interpretations that have been given to that convention, there is a
fairly strong and liberal right to strike. Right to strike can be limited, but only in fairly narrow
circumstances – in the event of a clear and imminent danger to the life, personal safety, or health of the
whole or part of the population (no right to strike for essential service workers). However, there must be
was the ILO calls, compensating mechanisms that are alternatives to the strike option, such as
compulsory arbitration. The alternatives need to be valid, adequate, speedy and impartial.
R v. Saskatchewan Federation of Labour, 2013 SKCA (lower court 2012, SKQB)
Facts: Historically, SK was a labour friendly province and there was an unfettered right to strike for
essential public service workers. This changed in 2008 – the conservative government implemented a
designation model instead of an unfettered strike model, meaning there was no right to strike and no
compulsory arbitration. There was a very board definition of essential services under the legislation –
services where the deprivation would result in the endangerment of life, personal safety or health (this
part would be okay with the ILO) but the second part of the definition related to where the withdrawal
of the services would result in injury to machinery, the environment, or the operation of the courts. The
third part was a catch all stating that any services prescribed by the government could be considered
essential services (part 2 problematic, part 3 most problematic). Under the agreement the parties were
allowed to create an essential services agreement designating who is essential and what level of services
would be provided during a labour dispute. Legislation stated that in the event that an agreement was
not negotiated, the government could dictate unilaterally which services were essential, staffing levels
and which specific employees most work during a labour dispute. The legislation provided only a limited
mechanism for challenging the government dictated terms. The union was only able to challenge the
staffing levels that were set out by the government. If the union challenged it then the SK Labour
Relations Board would be able to make a determination about the appropriate staffing levels.
Trial Decision: Trial judge said that s.2(d) constitutionally guarantees a right to strike, relying on BC
Health Services, Fraser, Dickson’s dissent in the Alberta Reference and Canada’s ILO obligations. As a
remedy he declared the SK Public Services Act unconstitutional on the grounds that it impaired
meaningful strike action. He gave the government one year to fix the legislation and gave a couple of
options: the government could either add a compulsory arbitration mechanism or they could improve
the DR mechanism in the designation process.
CA Decision: SCC precedent trumps international law and if there is any change in the constitutionality
of the right to strike that must be determined by the SCC
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Criticism of CA: should have done a closer analysis and seen that the recent SCC cases
(Dunmore, Fraser, and BC Health Services) have more or less eroded Justice McIntyre’s decision
in the Alberta Reference
Note: This case is on appeal to the SCC
Issues for Individual Employees under Collective Bargaining
Introduction
Duty of Fair Representation
Background
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There has been DFR language in Ontario’s Labour Relations Act since 1971
9 Canadian jurisdiction have a DFR enshrined in their Labour Relations Statutes
o Federal, AB, BC,MB, QB, NS, SK, Nfld. and Ontario
DFR cases are centres on facts – each case is different which leaves to a lot of decisions by the
Board in this area
74 – Duty of Fair Representation by Trade Union, etc.: A trade union or council of trade unions, so long
as it continues to be entitled to represent employees in a bargaining unit, shall not act in a manner that
is arbitrary, discriminatory or in bad faith in the representation of any of the employees in the unit,
whether or not members of the trade union or of any constituent union of the council of trade unions,
as the case may be

DFR complaints are filed under s. 96 Unfair Labour Practices.
DFR v. Internal Workings of the Union
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
Statutory duty applies only to a trade union in its representation of its members to the employer
Labour Relations Boards across Canada have made it clear that the DFR does not apply to the
internal workings of the union (i.e. employee suspended from being union member, nonmember excluded during collective bargaining, conduct of ratification votes etc.)
Angelo Morrow case: Board did not want to concern itself with the matter of how the pension
plan was handled because the Board saw that as an internal union policy. This case established
the principle that that the board has consistently ruled that the duty of fair representation is
concerned only with the representation of an employer by the trade union in interactions with
the employer. S.74 does not give the Board the jurisdiction to intervene in internal union
matters
Amario v. Morriara (1980): the Board has no specific authority under the Act to undertake a
watch dog role over the internal workings, constitution and bylaws of a union
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Scope of Duty of Fair Representation
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
Procedural Elements & Substantive Elements
Both the substance of the decision and the procedure must be free of bad faith, discrimination
and arbitrariness
A breach of the duty may be founded on procedural defects notwithstanding that the ultimate
decision cannot be faulted
o If you make a bad decision you cannot be faulted for it if you actually turned your mind
to making that decision
Complaints under s. 74 usually have to do with procedural elements
o Procedure requires that the decision adversely affecting the interests of an individual or
group of employees be made by a process that is untainted by ill will, hostility, or any
other aspect of arbitrariness, discrimination or bad faith
There is a need to weigh conflicts between the interests of an individual and the interests of the
bargaining unit as a whole and decide what the appropriate course of action is
What if DFR?




An application under s.74 of the LRA is filed by a union member against a union representative
or officers of the union
o Non-union members have filed applications but they are often dismissed because they
do not have a relationship with the union in the collective agreement or collective
bargaining
The DFR applies to the processing of grievances and negotiations
o Typically, the Board won’t interfere with bargaining unless it is forced to
 S.17 of the OLRA (duty to bargain in good faith. If an employee can prove the
union violated the duty to bargain in good faith the OLRB would likely get
involved there
The DFR is designed to ensure that individual or minority rights are not abused
Employer role with respect to DFR
o Employer is often an intervener interest in seeing how disputes are resolved and how to
act in future situations
o Employer can also be named as a party by the employee if the union and employer were
in cohorts
Standard of Representation
Gagnon v. Canadian Merchant Service Guild and Laurentian Pilotage Authority (1984)
Decision: Duty of fair representation arises out of the exclusive power given to the union to act as a
spokesperson for the employees in the bargaining unit. Court developed 5 principles to inform the duty
of fair representation
1. The exclusive power of the union gives rise to an obligation to represent all employees fairly
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2.
3.
4.
5.
No absolute right to arbitration – the union has discretion (not up to the members to decide)
Discretion must be exercised in good faith, objectively, and honesty
The union’s decision must not be arbitrary, capricious, discriminatory or wrongful
The representation must be fair, genuine, not merely apparent, undertaken with integrity and
competence without serious or major negligence, and without hostility (towards the employee)
The Legal Test


A section 74 application against a union will succeed if the union acts in a way that is either
o Arbitrary
o Discriminatory; or
o Bad faith
You only need to meet one of the prongs of the three pronged test in order to have a violation
of DFR.
o The majority of DFR cases arise from members complaining that their union will not take
their case to arbitration
Arbitrary Treatment
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Failure to turn one’s mine to the merits of the matter in question
Failure to inquire or act on available evidence
Failure to conduct a meaningful investigation to obtain full information to justify their decision
Displaying an attitude that is indifferent, summary, capricious, non-caring, or perfunctory
o Capricious – impulsive, unpredictable or fickle
o Perfunctory – unthinking or automatic (you cannot make snap decisions about
someone’s grievance)
One of the most potent defences to arbitrariness is legal advice – the Board will look at the fact
that union sought legal advice on the claim and therefore did not make an automatic decision
about the claim
Common cases include refusal to seek judicial review of an unsuccessful arbitration on an
employee’s dismissal and refusal to take a claim to arbitration
Discriminatory Treatment
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
Broadly interpreted by the OLRB and not confined to discrimination based on race, gender etc.
Requires the union to consider the position of all members and weigh competing interests
Discriminatory conduct is that which “will result in a difference in treatment that has no labour
relations rationale” (Susan Barrows case)
The mere act of discrimination is not enough
Examples:
o OLRB says productive settlement discussion are best when those emotionally involved
are kept informed but at a distance – they do not need to be involved in every step of
the process
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o
o
o
Trade union can amend its bylaws to enable it to exclude from membership employees
who are opposed to its certification
Affirmative action programs are not discriminatory
Collective agreement cannot be a bar to your accommodation in the workplace – if you
are ill or injured and the only job you can do in the workplace is held by a senior
employer, the employer/union will have a very hard time arguing that that position
should not be made available to you
Bad Faith Treatment
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Less frequent basis for complaint
Refers to conduct motivated by ill will, hostility, dishonesty, malice, personal animosity or
sinister purposes (subjective state of mind)
May include wilfully misrepresenting the member, concealing information from him or her, and
withdrawing grievances without explanation
Example: member filed a grievance which is settled and they sign an agreement. Member then
claims they were railroaded into signing the agreement because English is not their first
language, they don’t have a legal background, and they did not realize they were signing away
their rights. Member admits to Board they knew they were signing to move the process along.
Board found that this was not bad faith – the member knew it was going to proceed to
arbitration
Employee needs to know all of the relevant information in order to properly defend themselves
If the union does not explore allegations and find out information, that is grounds to say that
the union violated the DFR
DFR can also be violated with bad faith by concealing certain events or information with the
membership because the union has an obligation to communicate.
Onus/Burden of Proof
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
The onus is on the person who has brought the application to the OLRB (“the complainant”)
Where the OLRB cannot determine whose evidence they prefer, the complainant will fail
The Board has found that a high standard of representation is required
o The board will look at the size and sophistication of the union (Smith v. Stone, 1984) to
determine the appropriate standard of representation
o Larger sophisticated unions will be held to a higher standard
Procedure

The s.74 provisions of the OLRA were changed in 1995 – typically the OLRB will not address a
complaint which is still within the internal grievance process
1. After receiving the application, the Union will file a response with the OLRB (time sensitive) and
the employer can apply as an intervener
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2. The OLRB may choose to dismiss the application once the response is received (board does not
often do this because it wants an opportunity for the claimant to come face to face with the
union and mediate a result, which is done at the pre-hearing meeting with the LRO)
3. The parties enter into a pre-hearing meeting with a Labour Relations Officer (meeting is all off
the record and nothing can be used against the parties at the hearing. LRO will tell the parties
the likeliness of success of the claim)
4. The Board can then dismiss the application or set the application for a prima facie review or set
the application for consultation/hearing (vice chair conducts the prima facie review and can
choose to narrow the complaints for which there are adequate grounds to proceed.)
5. A consultation is held with all the parties and a vice chair of the OLRB (less formal), after which a
decision may be issued and the application dismissed (vice chair is usually looking for key
particular facts and evidence and then will make a determination)
6. The OLRB may set the application for a hearing with the same rules as an arbitration but more
formal

Procedural issues:
o Delay – if the complainant union member files a s.74 application sometime after the
incident, the Board must assess:
 The length of time in filing;
 The reasons for the delay; and
 The prejudice caused to the respondent union/union representative for the
delay
o If the complainant has also filed an complaint with a tribunal such as the Human Rights
Tribunal the Board will often defer their decision until that tribunal has made a decision
Possible Remedies



Under s.96 of the OLRA, the OLRB has the power to restore the status quo and put the parties
back in the position they would have been in had the violation of the DFR not occurred
This gives the OLRB wide discretion when fashioning a remedy
Examples:
o Grievance has to go to arbitration, waving objection from employer that grievance was
not filed in time, interpret collective agreements where the union and member have
different interpretation and find the correct interpretation,
o Reinstatement can be ordered – but is relatively rare
o Compensation award or damages award, union may be ordered to conduct an
investigation into the case, union may bear the costs of the arbitration process based on
complainant’s case, OLRB decision to be posted in the workplace
Right to Work Legislation

Premised on the idea of have the right to not pay union dues and the right to now join the union
BUT the union still has a duty of fair representation towards you
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
o This is because you are still included in the collective agreement
The goal of RTW is really to take down unions – they won’t have the money to exist but will still
have to put out resources to represent employees in grievances
Union Security


Consists of:
o (1) rules about union membership
o (2) union dues
“forced unionism” as involving both mandatory union membership and mandatory union dues
History of union security issues
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

1944: Mackenzie King’s Liberals during WWII introduced PC 103 which followed the Wagner Act.
Essentially created a North American labour model.
o Exclusivity and majoritism: if a majority of employees want to have their terms and
conditions determined through collective bargaining instead og individual bargaining
they can go to a union and the union can try and get majority support. If the union is
successful in getting majority support the government will give them a legal right to
representation certificate to represent ALL of the employees in the bargaining unit (not
just the majority that supported that union)
 This was an American idea that Canada adopted. This is an usual concept by
international standards – in most other countries you do not need a majority,
you just join a union if you want to
Collective Agreement coverage: in a system in which the union represents all of the employees
in the bargaining unit, do we allow individual employees to opt out of the collective agreement?
o S.56 of the OLRA: a collective agreement is, subject to and for the purposes of this Act,
binding upon the employer and upon the trade union that is a party to the agreement
whether or not the trade union was certified and upon the employees in the bargaining
unit defined in the agreement
Can the union give preferential treatment to the employees that are its biggest supporters and
give poor representation to the employees that are against the union?
o S.74: Duty of fair representation by trade union “shall not act in a manner that is
arbitrary, discriminatory or in bad faith in the representation of any of the employees in
the unit, whether or not members or the trade union”
Union membership: does every employee in the bargaining unit need to become a union
member?
o In Ontario, we have a permissive system
 S.51(1): Despite anything in this Act, but subject to subsection (4), the parties to
a collective agreement may include in it provisions,
 (a) for requiring, as a condition of employment, membership in the
trade union that is a party to or is bound by the agreement or granting a
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
preference of employment to members of the trade union or requiring
the payment of dues or contributions to the trade union
Essentially, the legislation does not require that employees be a member of the
union or that union dues be paid – it is a matter of negotiation between the
union and the employer and employees in drafting the collective agreement
Union Security Clauses
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Closed shop agreement clause: in order to be hired by the employer, you must be a member of
the union. All Canadian jurisdictions permit closed shop provisions in collective agreements but
limit their effects in certain ways
o Closed shops are not very common in Canada except for in specific industries such as
construction, entertainment
Union Shop clause: you don’t have to be a member of the union to get hired, but once you are
hired you have to become a member of the union.
o Also not that common in Canada
Maintenance of Membership clause: once you become a member of the union you cannot quit
so long as you are still employed
The agency shop, or Rand Formula: A Rand Formula clause does not require employees to be
members of the union, but does require that they pay to the union an amount equivalent to
union dues.
o The idea is that because each employee in the bargaining unit gets the benefit of the
collective agreement, each should have to pay a share of the union’s costs, but should
be allowed to register opposition to the union and its goals by declining to join
o Ontario has made this clause a statutory minimum for private sector collective
agreements, to be included at the union’s request
Why does it matter whether or not you are a union member?
o As a member, you can participate in the internal affairs of the union (as per the
constitution of the individual union)
o Once you become a union member you are governed by that constitution – it is in effect
a contract between the member and the union
o Crossing picket lines: if you are a union member the constitution may say that you are
not allowed to cross picket lines and if you do, you will be fined. If you are not a union
member, Ontario legislation does not prevent you from crossing picket lines
Speckling v. Communications, Energy and Paperworkers’ Union of Canada, Local 76, BCLRB
Facts: Union insisted that instead of assigning overtime, the employer should recall laid off employees
and give them the work. The employer refused and so the union enacted a policy prohibiting its
members from working overtime when laid off employees were available and capable of doing the
work. Speckling was charged with violating this policy and fined $50, which he refused to pay. The
unions bylaws stipulated that members must pay all fines within a specified time in order to maintain
their status in the union. Union told employer that Speckling was no longer a member in good standing.
Collective agreement contained a union security clause that required employees to maintain
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membership in the union as a condition of their continued employment. The employer refused to
dismiss Speckling but finally agreed to not let him return to work until he paid the fine. Speckling
refused, he was terminated, and then filed a grievance. Union refused to take it to arbitration and so
Speckling brought a DFR complain against the union.
Decision: The union is prohibited from exercising their exclusive bargaining agency in a manner that is
arbitrary, discriminatory, or in bad faith. The union is the case at hand used its exclusive bargaining
agency to negotiate the union security clause, and to apply it, and therefore must not have sought to
apply it in a manner that was arbitrary, discriminatory or in bad faith. The union acted reasonably, for a
legitimate and compelling purpose (to provide work for the laid off employees) and not in a
discriminatory purpose or in bad faith.
Birch v. The Union of Taxation Employees, Local 70030, 2008 ONCA
Facts: The union appealed the judgement of the application judge on the ground that he erred in failing
to find that the penalty clause in the PSAC constitution was not unconscionable and therefore could be
enforced. The Union also asserted that Birch and Luberti should have appealed the find under the
provisions of the PSAC constitution, and if necessary, filed a complaint with the Public Service Labour
Relations Board.
Issue: Whether a trade union may invoke the jurisdiction of the courts to enforce fines that it has
imposed against its members for crossing a picket line
Decision: a determination of unconscionability involves a two part analysis – a finding of inequality of
bargaining power and a find that the terms of an agreement have a high degree of unfairness. Union
members have no bargaining power against the union and the union failed to show that the fines were
proportional to the damage suffered by the union as a result of Birch and Luberti crossing the picket
line.
Lavigne v. Ontario Public Service Employees Union, 1991 SCC
Facts: Lavigne was a teacher in a community college that had a collective agreement with OPSEU. The
agreement had a Rand Formula provision. Lavigne did not challenge the requirement to pay union dues
but claimed that his constitutional rights to freedom of expression and freedom of association were
violated by the union’s use of some of its funds, of which his dues were a part, for purposes other than
collective bargaining, such as support of the NDP, funding of nuclear disarmament and abortion rights
etc.
Decision: Because Ontario community colleges were under substantial government control, the SCC
held that they were governmental actors within the meaning of s.32 of the Charter and that the
provision of the applicable collective agreement therefore had to respect employees’ Charter rights.
However, the court unanimously dismissed Lavigne’s claim that the union’s use of a portion of his dues
for political purposes violated his Charter rights. The fact that the appellant is obliged to pay dues
pursuant to the agency shop clause in the collective agreement does not inhibit him in any meaningful
way from expressing a contrary view as to the merits of the causes supported by the union.
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R. v. Advance Cutting and Coring Ltd., 2001 SCC
Facts: Quebec legislation required every construction worker to join one of five unions in order to obtain
the “certificate of competence” that was a prerequisite for employment in the industry. A limited
number of certificates were available in each region of the province. Several constructions firms were
convicted and fined for hiring workers without the certificate. Workers alleged the legislation infringed
their freedom of association and more precisely, their freedom to not associate
Decision: 8-1 decision that the freedom of association does include a right of non-association. Judges
split 3 ways on whether the right had been violated and whether it would be saved under s.1. Majority
said the right had not been violated and that even if it had, it would be saved under s.1
Other Information on Union Security


When Tim Hudak says he’s going to ban forced unionism, it means that he is going to prohibit
collective agreements from containing closed shop, union shop, and maintenance &
membership clauses.
S.47(1): Except in the construction industry and subject to s.52, where a trade union that is the
bargaining agent for employees in a bargaining unit so requests, there shall be included in the
collective agreement between the trade union and the employer of the employees a provision
requiring the employer to deduct from the wages of each employee in the unit affected to remit
to the union
o If the union requests the provision, the employer has to say yes. Government policy
decision to prevent strikes over union dues
Exam Review


Tips for the fact pattern:
o Considering adopting the IRAC model for answering the question
 Identify the issue(s), identify and discuss the applicable statutory and case law
rules, apply those rules to the facts of the case and then come to a conclusion
 Make sure you reach a firm conclusion – there may be more than one possible
conclusion but a firm conclusion may be necessary in order to address other
issues
o Fact situation may begin by having to deal with the issue of provincial v. federal
jurisdiction
o Then you will have to address the rest of the fact pattern as if under the jurisdiction of
Ontario
o Case law that is not from Ontario can be treated as applicable
Tips for the essay question:
o Take time to think through the question and come up with a road map – don’t just write
down everything and anything
o Make sure you do NOT answer both essay questions
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o
If you’re running out of time revert to using point form on the essay question to at least
get your outline out
Practice Problem


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
Exclusion of team leaders – union has done so on the basis that they are akin to management
(conduct appraisals and award/discipline review of customer service representatives) and where
they make a recommendation for dismissal, management is likely to defer to that
recommendation
o Note that on an exam you would argue the case that set out the principle that where
the recommendations are routinely accepted that is close enough to the managerial
power of dismissal. However, you could also argue that they do not have that express
power and so they should not be considered management
Part time v. Full time employees – sufficient community of interest. Full time and part time
employees perform identical functions
o Labour board also operates on a general presumption that everyone at a particular
location will be a part of the bargaining unit
Exclusion of plant employees – different location, perform different functions, insufficient
community of interest, union represents call centres and the plant is not a call centre. It would
be more appropriate for the plant to be a separate bargaining unit.
Different Call Centre Locations – You could propose the potential argument of the employer that
the bargaining unit should include the call centre employees of the Toronto and Hunstville
locations and explain that this might be in the interest of the employer because it would make it
more difficult for the union to organize the drive and achieve the 40%. However, you would also
need to note that should the union be successful in organizing this larger bargaining unit, the
employer would face significant disadvantage because of the increased size of the bargaining
unit.
Board would likely accept the bargaining unit proposed by the union
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