TABLE OF CONTENTS
Collective Bargaining Policy ............................................................................................................................................................................... 3
Government and Collective bargaining ................................................................................................................................................ 3
Basics of Unions.............................................................................................................................................................................................. 4
Constitutional Protections and Collective Bargaining ............................................................................................................................. 6
Lead up to BC Health Services....................................................................................................................................................................... 6
BC Health Services ............................................................................................................................................................................................. 7
Effect of BCHS on the s. 2(d) and the right to strike...........................................................................................................................10
Status .........................................................................................................................................................................................................................12
Who is an Employee? ..............................................................................................................................................................................12
Legislative Exclusions from the OLRA ................................................................................................................................................14
Agricultural Workers .................................................................................................................................................................................16
Confidential Capacity .................................................................................................................................................................................17
Managerial Functions.................................................................................................................................................................................17
Qualified Trade Unions..............................................................................................................................................................................18
Who is the Employer? ................................................................................................................................................................................19
UNION RECOGNITION .........................................................................................................................................................................................19
Question 4: Sufficient Support ................................................................................................................................................................20
Union Certification Application: ............................................................................................................................................................20
Employer Response: ...................................................................................................................................................................................21
Question 3: Timeliness ...............................................................................................................................................................................21
Voluntary Recognition ...............................................................................................................................................................................23
Decertification...............................................................................................................................................................................................23
Question 2: Appropriateness of Bargaining Unit .........................................................................................................................25
Case of casual workers ..............................................................................................................................................................................27
Multiple Locations .......................................................................................................................................................................................27
Variance ...........................................................................................................................................................................................................28
Successorship ................................................................................................................................................................................................29
Contracting Out ............................................................................................................................................................................................30
Related Employers ......................................................................................................................................................................................30
Unfair Labour Practices ..................................................................................................................................................................................31
ORGANIZING CONTEXT .................................................................................................................................................................................31
Illicit Motive ULPs (s.72 & 76)................................................................................................................................................................33
Non-Motive ULPs .........................................................................................................................................................................................33
Contracting out or shutting down part of business which captured bargaining unit .....................................................34
Employer’s Speech ......................................................................................................................................................................................34
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Negotiating Context .........................................................................................................................................................................................35
The Statutory Freeze ..................................................................................................................................................................................36
Solicitation on Employer Property .......................................................................................................................................................37
Union-side Unfair Labour Practices ..........................................................................................................................................................38
ULPS- Lawyer’s Professional Responsibility ....................................................................................................................................39
Remedies for ULPs under OLRA .................................................................................................................................................................39
S.98 Interim remedies ...............................................................................................................................................................................40
Remedial Certification ...............................................................................................................................................................................41
Financial Penalties ......................................................................................................................................................................................42
Superior Court of Justice & Criminal Law ..........................................................................................................................................43
NEGOTIATION .......................................................................................................................................................................................................44
Duty to Bargain in Good Faith ................................................................................................................................................................44
Duty to Disclose ............................................................................................................................................................................................47
Remedies for Breach of Duty ..................................................................................................................................................................48
First Contract Arbitration .............................................................................................................................................................................49
STRIKES AND LOCKOUTS................................................................................................................................................................................50
Statutory Requirements ................................................................................................................................................................................51
Limiting Output ............................................................................................................................................................................................53
Concerted Activity .......................................................................................................................................................................................53
Sympathetic Action .....................................................................................................................................................................................53
Political Strikes/Protest............................................................................................................................................................................54
Lockouts ...............................................................................................................................................................................................................54
**PROCESS TIMELINE ...............................................................................................................................................................................55
Legal Forums Regulating Industrial Conflict.........................................................................................................................................56
Labour Relations Boards ..........................................................................................................................................................................56
The Courts ...........................................................................................................................................................................................................57
Grievance Arbitration ................................................................................................................................................................................61
Lavigne v. Ontario Public Service Employees Union, (1991) SCC ..........................................................................................61
PICKETING ..............................................................................................................................................................................................................62
Primary Picketing ........................................................................................................................................................................................64
Secondary Picketing ...................................................................................................................................................................................65
Job Rights of Strikers and Replacement workers ...........................................................................................................................66
Alternatives: Public Sector and Essential Services .............................................................................................................................68
Speaker: Construction Law ......................................................................................................................................................................70
Duty of Fair Representation..............................................................................................................................................................................70
Case law for Duty of Fair Representation ..........................................................................................................................................72
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COLLECTIVE BARGAINING POLICY
Functions of Labour Law
1.
2.
3.
Promote employee rights
Promote industrial Peace
Serve the economic interests of the jurisdiction
OLRA section 2- Purpose Clause
1.
2.
3.
4.
5.
6.
7.
To facilitate collective bargaining between employers and trade unions that are the freely-designed
representatives of the employees
To recognize the importance of workplace parties adapting to change.
To promote flexibility, productivity and employee involvement in the workplace
To encourage communication between employers and employees in the workplace.
To recognize the importance of economic growth as the foundation for mutually beneficial
relations amongst employers, employees and trade unions
To encourage co-operative participation of employers and trade unions in resolving workplace
issues.
To promote the expeditious resolution of workplace disputes.
Wagner Act – 1935 – U.S. – technically the National Labour Relations Act –part of the new deal – unions
basically illegal prior to Wagner Act - much industrial unrest – employers refused to recognize unions – many
strikes and disruptions - Act brought in to promote industrial harmony
Rationale for Introducing NLRA/Wagner Act: (from the preamble)
1) Refusal of employers to recognize unions was causing unrest – causing great difficulties for
commerce
2) Increasing bargaining power = increasing the amount of money in circulation
3) Promoting the interests of workers (implicit and not mentioned by Slinn)
In the years that followed, all Canadian jurisdictions came up with Wagner-inspired legislation
GOVERNMENT AND COLLECTIVE BARGAINING
Government: two roles –both employer and legislator – inherent conflict.
inherent conflict - can change the rules if it does not suit them and our governments have tended to do that -can
legislate back to work -- also may legislate a collective agreement - can simply remove certain topics from the
possibility of debate
Problematic roles: 1) legislating a collective agreement - 2) changing the scope of negotiable matters
--BC case about Health Practitioners - arguable that the gvt now legislating collective agreement
may violate charter--case has the potential to change all labour relations law in Canada
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BASICS OF UNIONS
Union: acts as the agent for a group of employees - group = a bargaining unit - a union may represent many different
bargaining units
Key functions:
1. negotiate a collective agreement with the employer on behalf of the employees
-Becomes important that the union is not acting simply as an agent -- must do more - the parties to the
agreement are the government and the union - there is a privity question? Union and employer, not the
employees - thus not a true agency situation
2. Administering the agreement and applying it - grievance arbitration - will not deal with grievances in this
course
UNION DENSITY
Canada around 30% - much higher in public than private –hasn’t declined in the last decade – going up
marginally – service sector growth – much in gambling sector – women now more unionized – likely due to
prevalence of women in public sector and service jobs
United States
union density around 12% total (8% in private sector) – more American workers want unionization
than Canadian workers – Dunlop Commission: fear of retaliation leads to very low union density – 70%
of employees believe that they will be fired if they try to unionize – 15-20% chance that they actually
will
Union Avoidance and Unfair Practices in Canada
 approximately 88% of employers engage in union avoidance – 13% admit that they took part in
Unfair Labour Practices (ULPs)
 about 35% of managers believe that if their workplace was unionized, they would lose their jobs –
management and employees are both afraid of losing their jobs
REPRESENTATION:
- a few years ago, the US had a commission put together to consult on the possibility of reforming labour laws did some surveys - fear of employer retaliation is very present among American workers - more American
workers want unionization than do so in Canada - so why so little density? - federal committee concluded that it
was fear of retaliation that explained this -the Dunlop commission found that 70 percent of the employees
thought that they would be fired - between a 15 and 20 % chance that a worker who supports a union will be
fired
-in Canada, approximately 88% of employers engaged in union avoidance and 13% admitted that they took part
in unfair labour practices -- much of labour law is about unfair labour practice complaints
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-about 35% of managers felt that if their workplace was unionized they would lose their jobs -- great fear on
both sides - management and employees are both afraid of losing their jobs
What do Unions Do? -- Freeman and Medoff – The Two Faces of Unions
-unions have two faces – two different ways that they are viewed/operate:
1) monopoly
2) collective voice
-What is the effect of unionization on businesses?
- you basically cannot tell prior to unionization what effect will be
-difference between “exit” option and “voice” option  unsafe workplace – exit/quit (bad for
employees, employers and business) or voice/complain (better for employees, employers and business)
 voice is important due to collective action problems in the workplace – (better lighting, safer
equipment)
1) Efficiency – capital/labour ratio – tends to be higher – quality of work increases in union shops – lots of use
of machines - workers often more skilled than necessary – some misallocation of resources  mixed result
2) Turnover – unionized workers have a significantly lower quit rate – benefits to business – workers are better
and more experienced  positive
3) Productivity – both positive and negative effects – positive = reducing quit rate, inducing management to
alter methods of production, improving morale and cooperation among workers, improved communication leads
to better decision making by management – negative = work rules decrease productivity, lower society’s output
through strikes, raise wages above competitive levels which leads to too little labour relative to capital
4) Wage Inequality – both - equalizing - collective voice tends to reduce wage dispersion in an individual
industry or business – collective agreement flattens the wage differential – unions also look out for the interests
of the disadvantaged – creating inequality - unions can increase the wage differential between unionized and
non-unionized employees – create horizontal inequities by creating differentials among comparable workers
 ultimately, say that it is not cut and dry – arguments on both sides – cannot really tell what exactly the effects
will be – can have a lot to do with how management reacts to the union – do they listen to the suggestions?
So why do managers/employers object so vigorously?
1) Majority of economic gains are had by the employees – may reduce profits, even if it
balances incomes – unions also reduce the power of managers – also makes managers work
harder – no more unilateral discretion
2) Strike cost to individual employers is very high, even if it is not that high a cost to society as
a whole
3) Employers are reactionary – see unionization as expensive, difficult and threatening
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4) Management sees unions as the cause and effect of managerial failure – the company gets the
union it deserves - perceived this way by outsiders
CONSTITUTIONAL PROTECTIONS AND COLLECTIVE BARGAINING
Government Intervention in Work Stoppages: Canada criticized internationally for having very little
freedom to strike. Feature plays out in two ways:
1) Legislative restrictions on strikes and lockouts 2) Government willingness to step in and put end to confict.
Labour relations in Canada often characterized as coercive –“permanent exceptionalism”- Government tends to
end work stoppages through direct legislation- mainly in public sector but also private.
Types of Intervention:
Back To Work Order: - generally, there is not a standalone work order - will be in combination with a
time limit for negotiations to conclude - if they do not conclude, then maybe mandatory arbitration or an
imposed collective agreement - sometimes just mediation - generally when you see that combination,
(BTW and time limit) the parties are able to settle. Remove most effective economic weapon of union.
Mandatory Arbitration: neutral third party who makes a binding decision about what the terms and
conditions of the agreement will be. (Usually brings negotiations to an end, interferes with bargaining)
Mediation: helps parties resolve, but cannot order anything
Imposed Collective Agreement: legislated collective agreement
Most common is a BTW order and mandatory arbitration - but what we have also seen a lot of is BTW
order and an imposed collective agreement AND/OR changing the scope of bargaining - what can the
parties negotiate about - often the government simply says that certain topics cannot be bargained - at the
same time as BC Health Services, there was intervention dealing with teachers - removed the scope of
bargaining - make null any existing provisions
-many of these government responses are called into question by BC Health decision
LEAD UP TO BC HEALTH SERVICES
1980s- Trilogy (Alberta Reference, PSAC v. Canada, and RWDSU v. Saskatchewan) very definitively said
that 2(d) does not encompass collective bargaining or the right to strike- defined freedom of association as a
fundamentally individual right- 2(d) only encompassed only those activities which one could engage in
collectively but were capable of being done by an individual- SCC liken to golf club.
Dunsmore- First crack in trilogy. Established that the law has to recognize that there are certain union activities
which may be central to union and need to be protected- even if inconceivable on an individual level. Begins to
tear down the conception of 2(d) as a purely individual right- CB and striking excluded from decision. BC
health seen as launching off the platform created by Dunmore.
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At issue in Dunmore was the exclusion of agricultural workers in Ont. from any form of labour legislation that
protected them against employer retaliation from joining and participating in a trade union. The union did not
ask for collective bargaining rights, demonstrated instead that the absence of statutory protection meant that agr.
workers, who were an especially vulnerable group of workers, were unable to establish, join and maintain an
employee association. The Court concluded that the statutory freedom to organize ought to be extended to
agricultural workers, along with protections judged essential to its meaningful exercise (such as freedom to
assemble) to participate in the lawful activities of the association and to make representations, and the right to
be free from interference, coercion and discrimination in the exercise of these freedoms.
BC HEALTH SERVICES
Sum: SCC on the Trilogy – Rejected: idea of union rights as merely “Modern rights”; idea of legislative
deference; idea of collective action being only individual right exercised by many people; idea that s. 2(d) did
not protect the “objects or goals” of association; and Insisted on contextual approach. -----Four Propositions
ground decision that 2(d) includes CB: The principles undergirding the trilogy do not withstand scrutiny and
should be rejected; Canada’s historic recognition of collective bargaining; International Law’s recognition of
collective bargaining as a part of freedom of association; The compatibility of bargaining with other Charter
rights ------ What the decision has to say about collective bargaining and s. 2(d): Redefine s. 2(d) as a collective
right; Applicable only to governments; Employees have a right under 2(d) to collectively present demands to
employer, engage in discussion and try to achieve workplace goals; Employees and government have a duty to
bargain in good faith; Government has a duty to consult
TEST: "Substantial interference" with collective bargaining violate s. 2(d) • Two-part test for substantial
interference: (1) Is the matter central to process of collective bargaining, i.e. the capacity of union
members to come together and pursue collective goals?; (2) Does the manner in which the measure
impacts on these rights nonetheless preserve the collective right to good faith negotiation and
consultation? • Element of good faith to commit time to meet and commit time to the process • Important
changes effected through good faith negotiation may still not violate s. 2(d) • Here, provisions on layoffs,
contracting out, bumping central to process of collective bargaining • Also effectively precluded any
bargaining and consultation and therefore violate s. 2(d) • Transfers and reassignments are relatively
minor, and some protection is preserved here.
-once that is established, the burden switches to the government to justify the infringement under section 1
Holds that some limits on the right to freedom of association may be justified under section 1 of the Charter in
situations "involving essential services, vital state administration, clear deadlocks and national crisis."
Issue: Does the BC government’s Bill 29 infringe s. 2(d) of the Charter, in whole or in part?
Sub-issue: does s. 2(d) include the right to collective bargaining? If so, is collective bargaining
infringed by Bill 29?
SCC on the Trilogy: go through a number of reasons that the trilogy should not be followed
1) Rejected idea of union rights as merely “Modern rights” – great status than that.
2) Rejected idea of legislative deference – the trilogy said labour relations was for the legislature –rejects
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3) Rejected idea of collective action being only individual right exercised by many people – Dunmore
4) Rejected idea that s. 2(d) did not protect the “objects or goals” of association – the SCC makes an
important distinction between process and substance – 2(d) protects the process, but not the substance
5) Insisted on contextual approach – looked to the history of labour relations in Canada
Four Propositions which ground their decision that 2(d) includes Collective Bargaining:
1) The principles undergirding the trilogy do not withstand scrutiny and should be rejected –
rejected the individual notion of 2(d) – court said that it is not possible to collectively bargain or
strike as an individual - Brian Langille - actually there are individual analogues to collective
bargaining and striking (individual bargaining and individual work stoppages)
2) Canada’s historic recognition of collective bargaining – trilogy seemed to say that labour
relations was purely a creature of statute – not organic enough to be Charter right– SCC goes
through the history of labour relations and says that the right actually pre-dated the statutory scheme
– Criticism by Eric Tucker - they are wrong, there was no right pre-statute
3) International Law’s recognition of collective bargaining as a part of freedom of association –
SCC recognizes that international law, norms and standards are relevant to Canadian labour law –
rely on conventions 87 (ratified by Canada) and 98 (not ratified by Canada) – Criticism by Slinn –
court is relying on something that has not been ratified in Canadian law
4) The compatibility of bargaining with other Charter rights – e.g. democracy – Criticism: seems
to conflate freedom and rights – rights impose obligations – freedoms do not – freedoms focus on
what you are able to do – SCC has defined freedom to associate as including a corresponding duty to
negotiate – seems to conflate
What the decision has to say about collective bargaining and s. 2(d):
1) Redefine s. 2(d) – a collective right
2) Applicable only to governments - legislation - government action
3) Employees have a right under 2(d) to: collectively present demands to employer, engage in
discussion and try to achieve workplace goals
4) Employees and government have a duty to bargain in good faith
5) Government has a duty to consult – purely a procedural right – does not guarantee the end
result – sensitive to circumstances – essential services, vital state administration, clear
deadlock,, national crisis – in these situations, the content and modality of the right may
differ – s. 1 justification may permit interference with the bargaining process – probably
going to end up being a very important part of the decision
Substantial Interference Test – 2(d) only protects against “substantial interference”
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Effect of substantial interference test: test will only be satisfied where the matter is important
to the process of bargaining AND imposed in violation of the duty of good faith and consultation
AND the matter is important in and of itself
Application of the test to the facts:
Did not pass the substantial interference test:
1) Successor employer rights – Bill 29 made it more difficult to keep bargaining rights
with the new employer – did not infringe 2(d) – altered rights did not come from
collective bargaining, but rather from legislation – did not interfere with the process –
but that is a fine distinction, because the result is the same
2) Transferring and reassigning workers
Did pass the substantial interference test:
1) The invalidation of collective agreements and collective agreement provisions
2) Contracting out provisions
3) Lay-off provisions
Oakes Analysis:
Purpose: sustainability in healthcare was pressing and substantial
Means: rationally connected to objective of improving healthcare
Minimal Impairment: fails this part of the test – SCC found that government had not shown
that it had considered other less restrictive means – government did not engage in any
consultation whatsoever
SCC Decision – SCC declares certain provisions of Bill 29 to be invalid – gave one year before decision
would come into force – ended up with expensive settlement for the government – but they continued to
contract out anyways
Fallout from BCHS – not clear how this new “collective right” is going to play out -Problems/difficulties:
-what is this duty to consult?- “consultation” (57) or “meaningful consultations” (5) – duty not known
in labour law – content ? – arbitrators say there is a difference between meaningful consultation and
regular consultation –is the duty satisfied by holding a meeting with the affected union?
-how do you prove that someone has or has not bargained in good faith? very hard to prove that
party has not negotiated in good faith – labour lawyers/academics have not identified what the content is
– very difficult to disentangle process from substance
-BCHS has created a parallel labour code based on the Charter – certain requirements that are not
part of statutory scheme – only available where the employer is government
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-Only unions can complain, employers cannot – unions are not subject to the Charter – employers
cannot complain that the union is violating the Charter, even though BCHS seems to say that the union
also has duty to bargain in good faith etc.
Judy Fudge – “The Supreme Court of Canada and the Right to Bargain Collectively: The Implications of
the Health Services and Support Case in Canada and Beyond”
-BCHS signals a shift perception of labour rights – fundamental human rights, not merely based on
statute – courts are now the real protectors of labour rights –a significant change – seems to only occur
when unions are quite weak – not necessarily a great thing  constitutional challenges very slow – also,
too aggressive, they can lose big – i.e. trilogy
EFFECT OF BCHS ON THE S. 2(D) AND THE RIGHT TO STRIKE
Policy Perspectives
• Goal is to exert economic pressure
• Promoting industrial peace vs. detrimental effects of work stoppages
• Some analysts argue that legislatures should ban strikes in favour of interest arbitration
• This would not only eliminate disruption but also lead to outcomes based on justice rather than on sheer
economic power
Weiler
• However, right to force work stoppage is fundamental element of our model of industrial relations
• Fosters freedom of contract by fostering the right to disagree
• Impetus for negotiations is threat of economic harm through strike/lockout
• Therefore, right to strike justified not on its intrinsic value, but because of its instrumental role the larger
system
A Constitutional Right to Strike?
Re Public Service Employee Relations Act (Alberta) (1987) SCC
Freedom of association a fundamentally individual right • S. 2(d) protects right to do with others what one can
lawfully do individually • However no analogy can be drawn between right to strike and right to cease working
on an individual basis, therefore right to strike not protected • However, dissent draws on international law and
concludes that effective constitutional protection of associational interests requires concomitant protection of
freedom to withdraw services collectively.
-problem: said no individual analogy for striking but some CB legislation allows for single person BU.
-No positive obligation. All trilogy cases state that labour relations is an area where the courts should
provide tremendous deference to the legislature. Dunsmore- opened up positive obligation, need to be
certain minimum items- deference should be lessoned.
Fudge points outs that the same rationale exists in the trilogy for excluding strike and collective bargaining
from 2(d) and reasons were all rejected in BCHS – will have to come up with new reasons
-seems like it will be very difficult to disentangle the concepts of the right to strike and the right to
collective bargaining –regime is built around the use of economic weapons
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CUPE Strike and BTW legislation: On its face, BTW interferes with the right to strike only, but there is an
argument that it interferes with the process of bargaining itself – also easy to argue that BTW legislation and
mandatory arbitration would substantially interfere – ILO says that mandatory arbitration interferes with
collective bargaining and freedom of association – TTC was legislated back – Why not CUPE (at first)? – likely
due to the passage about “essential services, vital state administration, clear deadlock and national crisis” –
seems like only “clear deadlock” is a possibility
Policy Response to Right to Strike
In the labour trilogy cases the Supreme Court decided that freedom of association does not include the right to
strike or right to collective bargain. However because the Court in BCHS rejects the reasons it relied on in these
case to exclude striking from Charter protection, the issue of whether section 2(d) protects the right to strike
will likely come before the court again. There are a number of reasons to suggest that this challenge could be
successful.
One is the general trend in the towards expanding the scope of 2(d) protections, most notably in Dunmore,
BCHS and Fraser.
Dunmore, the Supreme Court held that the exclusion of agricultural workers from the OLRA violated their
freedom to organize, which it found to be guaranteed by s. 2(d) of the Charter, and there could be a positive
obligation on the gov’t to protect the freedom for certain vulnerable populations. The court ordered that the
Ontario government enact legislation to provide agricultural workers with the protection necessary for them to
meaningfully exercise their freedom to organize.
BCHS (Section 2(d) now includes a right to collective bargaining, which includes an obligation to bargain in
good faith),
Fraser (albeit in the OCA). Justice Winkler expanded 2(d) even further than BCHS by stating that Section 2(d)
protects a right to some form of mandatory bargaining dispute resolution method and that ‘majoritarian
exclusivity is essential to ensure’ the balance of power between workers and employers. Unclear how to SCC
will react to these two additions, since they were clear in BCHS the 2(d) freedoms do not mean that anyone has
right to access a particular statutory scheme, but Winkler seems to be saying this.
Second is the ambiguity in the statement made in BCHS that the state might be justified in infringing the 2(d)
rights “on an exceptional and typically temporary basis, in situations, for example, involving essential services,
vital state administration, clear deadlocks and national crisis.” (para 101) It is difficult to determine when a
deadlock has occurred, especially when the protection of a right is depending on it.
Thirdly, the Court in BCHS ruled that 2(d) should be interpreted to provide “at least of level of protection”
provided by international labour treaties that have been ratified. Canada has ratified C87 and experts at the ILO
have this convention protects the right to strike. In fact, Canada has been criticized by the ILO for its persistent
failure to protect the right to strike in the way that the government is quick to pass back to work legislation and
mandatory arbitration whenever the public get annoyed by a strike.
Of course, it is possible that the Court could recognize a constitutional right to strike, but still permit back to
work legislation. This could happen if the Court ruled: (1) there is a right to strike under Section 2(d); (2) back
to work legislation violates that right; but (3) limiting that right is justified in the circumstances under Section 1
of the Charter, which allows violations of Charter rights when it is justified “in a free and democratic society”.
This may be a harder argument to make with regards to university education strike but easier if something like,
11
public transit or health care, where the implications of a strike are huge to the public well-being and/or the
economy. Compared to a hospital strike or even a TTC strike, a strike by a few thousand university instructors
would be harder to justify under s. 1.
RCMP CASE: The OSCJ ruled that by excluding the RCMP from the CB bargaining regime established by
the PSLRA, and substituting an alternative model of the SSRP, infringed Section 2(d) and that the infringement
was not ’saved’ by Section 1 of the Charter (not established was the least intrusive means).
The Court ruled that alternative statutory model of employee representation established failed to meet the new
standard for Constitutional collective bargaining, because the SRRP was not ‘independent’ of the employer, so
that the fact that the employer can chose to deal only with the SRRP and thereby refuse to bargain with other
independent representatives freely chosen by the workers effectively denies the workers the right to bargain
through an representative of their own choosing. The Court also ruled that the process engaged in between the
employer and the SRRP was one of mere ‘consultation’ and not collective bargaining as mandated in B.C.
Health Services. Ultimately, all decisions rested unilaterally with the employer.
STATUS
WHO IS AN EMPLOYEE?
EMPLOYEE-in s. 1(1) of the Act, the only definition given is that “employee” includes dependant contractor –
common law determines - OLRA are not the same as the ESA – OLRA understanding of who counts as an
employee is broad – includes dependent contractor
Dependent Contractor – defined in the Act (motivated by Harry Arthurs article)
Section 1(1) “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, and under an obligation to perform duties for, that person more closely resembling the relationship of
an employee than that of an independent contractor; (“entrepreneur dépendant”)
-Key part of this – DC more like EE than IC – economically dependant
Not all workers qualify for collective bargaining. They may be ineligible because:
• No clear employer
• Excluded by legislation (e.g. domestic workers)
• Management responsibilities
• Collective bargaining responsibilities
National Labor Relations Board v. Hearst Publications Inc. (1944) USSC
Newsboys in LA sought to bargain collectively, newspapers claimed they were independent contractors • Classification as
employee depends on (1) Inequality of bargaining power; (2) Dependence on daily wage; (3) Unable to leave employ and
resist arbitrary and unfair treatment; (4) Union essential to give opportunity to deal on equal terms; (5) Collective
bargaining appropriate and effective for friendly resolution of disputes • With newsboys, they rely on their wages, which
are prescribed largely by publishers who determine buying and selling price and control supply, hours of work are
supervised and to an extent prescribed, much of equipment furnished by publishers.
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Winnipeg Free Press v. Media Union of Manitoba (1999) - CANADIAN
Newspaper carriers: are they Dependent Contractor or Independent Contrator?
 Must look at circumstances of each case: focus on relationship between employer and worker
Algonquin Tavern test: Factors may include (1) Use of or right to use substitutes; (2) Ownership of
instruments, tools, etc. (3) Evidence of entrepreneurial activity; (4) Selling of one's services to market generally;
(5) Economic mobility or independence, including freedom to reject job opportunities or work when and where
one wishes; (6) Variation in fees charged for services rendered; (7) Whether individual has become essential
element which has been integrated into the operating organization of the employing unit; (8) Degree of
specialization, skill, expertise, or creativity; (9) Control of manner and means of performing the work; (10)
Magnitude of the contract amount, terms, and manner of payment; (11) Whether the individual renders services
or works under conditions similar to employees.
 Title given by employer is not determinative, Board will consider actual circumstances
Here, carriers pick up specified number of papers from specified depot at specified time and deliver on specified
route for non-negotiable rate, managers can hire, fire, permit absences, negotiate route allowances, warn and
correct employees, carriers could not sell or dispose of route
 no independence: told what route, told what compensation, unilaterally decides what work is going
to be; carrier has no opportunity to decline; carriers have to turn up at certain places, yes, tools of the
trade were provided by newspaper carriers but precondition to work, clearly, they are economically
dependent.
 A couple of factors indicative of true employee relationship- warning letters issued to carriers and
explicitly reserved the right to terminate carriers on notice.
Takeaway: Algonquin Tavern case gives 11 factors --- no one factor is determinative--– main question is:
in all of the circumstances, does the relationship more closely resemble that of an independent contractor
or that of an employee? --- in this case, the board found that the carriers were more like employees --mainly due to control and discipline and economic dependence
Toronto Star Newspapers Ltd. (2001) OLRB
Facts: In 2001, the TorStar had about 28,000 newspaper carriers. The union organized these
workers and won a vote at the labour board. The Toronto Star argued that these paper carriers
are IDs, they are running their own businesses. Union argues they are dependent contractors.
Applies Algonquin Travel to the facts.
 Factors that make the newspaper carriers resemble independent contractors:
o
The distributors driver their own cars. TorStar does not pay any expenses for these cars.
o
There is no direct supervision over these distributors.
o
The contract says these people are independent contractors (para 63).
o
Under the tax act, most people treat themselves and independent contractors.
o
If a customer does not pay, the carrier incurs that loss.
o
The carrier buys the newspaper from the TorStar and then sells them to customers at a
retail price, so it looks like they are making a profit rather than earning a wage.
 Factors that make the distributors that resemble employees:
o
Torstar finds almost all of the customers.
o
TorStar determines the wholesale and retail costs of their service, thereby determining
the revenues of distributors.
o
Only the TorStar can cancel a customer (even if they are not being paid).
o
TorStar can and has disciplined people.
13
o
o
TorStar put an end to people taking extra routes and hiring people to deliver on their
behalf. So there is very little entrepreneurial discretion.
The distributors can use substitutes, but only if they tell TorStar ahead of time and it can
only be for a short period of time.
Reasoning: The integration and engagement of the carriers in The Star's business, the terms of
engagement of the carriers and their conditions of engagement, the level of monitoring and
control exercised by The Star over the carriers, the lack of any real opportunity for
entrepreneurial activity, and the capacity of The Star to terminate the services of a carrier on
notice, or for cause, suggests strongly that the carriers' engagement by The Star more closely
resembles that of an employer in relation to a wage earner, than it does a service user in relation
to an independent contractor.
o
Held: The newspaper carriers (distributors) resemble employees more than independent
contractors.
Takeaway: provides a detailed weighing of the Algonquin Tavern factors
Fownes Construction Co. (1974) BC Labour Relations Board.
How far down the chain can work go to remain an employee. IE: if B hires C and C contracts out to D and E –
can B still be considered an employee under the act? Yes, this does not automatically exclude a finding that B is
an employee. Control is the most determinative factor
Section 9(5) of the OLRA - dependent contractors - valid unit on their own –can be lumped with employees if
the board is satisfied of majority wish --- board will hold a ballot to determine this
Near Employees: Near-employees such as medical residents, articling students, inmate workers, or workfare
workers may also be ineligible for collective bargaining. The answer appears to depend on how closely their
employment resembles traditional employment
LEGISLATIVE EXCLUSIONS FROM THE OLRA
OLRA Section 3:
Non-application
3. This Act does not apply,
(a) to a domestic employed in a private home;
(b) to a person employed in hunting or trapping;
(b.1) to an employee within the meaning of the Agricultural Employees Protection Act, 2002;
(c) to a person, other than an employee of a municipality or a person employed in silviculture, who is employed in horticulture by an
employer whose primary business is agriculture or horticulture;
(d) to a member of a police force within the meaning of the Police Services Act;
(e) except as provided in Part IX of the Fire Protection and Prevention Act, 1997, to a person who is a firefighter within the meaning
of subsection 41 (1) of that Act;
(f) to a member of a teachers’ bargaining unit established by Part X.1 of the Education Act, except as provided by that Part, or to a
supervisory officer, a principal or a vice-principal;
(h) to an employee of a college of applied arts and technology;
(i) to a provincial judge; or
(j) to a person employed as a labour mediator or labour conciliator.
OLRA section 1(3)
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(3) Subject to section 97, 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 practise in Ontario and
employed in a professional capacity; or
(b) who, in the opinion of the Board, exercises managerial functions or is employed in a confidential capacity in matters relating to
labour relations.
Ontario Works Act, section 73
Community participation
73.1(1)The Labour Relations Act, 1995 does not apply with respect to participation in a community participation activity under this
Act.
Unionization for participants prohibited
(2)Without limiting the generality of subsection (1), under the Labour Relations Act, 1995 no person shall do any of the following
with respect to his or her participation in a community participation activity:
1. Join a trade union.
2. Have the terms and conditions under which he or she participates determined through collective bargaining.
3. Strike.
Sum-the Act excludes many types of workers – farm workers, police, professionals, judges, those who
exercise managerial functions and those who are employed in a confidential capacity in matters related to
labour relations – participants in the Ontario Works program are also excluded
Judicial Exclusions:
Workers can also be excluded due to their workplace/industry being subject to federal jurisdiction and the
Canada Labour Code- List of workers under federal jurisdiction: aeronautics, air transport and airports, cross
border transportation, most railways, shipping and navigation, grain elevators, telecommunications, television
and radio broadcasting, banking, customs, postal services, atomic energy, federal civil servants, employees of
federal crown corps, anyone working in Yukon, NWT and Nunavut.
RATIONALES
Section 1(3)(a) professional exclusions – RATIONALE: the economic interests of some professionals can be
best advanced through professional associations
S. 1(3)(b) Management rationale: is to preserve arm's length relationship and avoid conflict of interest. Protect
union from management control and ensure loyalty of management to company.
Section 3 exclusions: domestics, hunting/trapping, agricultural employees, police, fire fighters, supervisory
principal, vice principle, provincial judges – no other provinces exclude agricultural workers – RATIONALE:
these groups often have their own labour relations legislation
Section 4 excludes certain types of public workers – i.e.: Crown employees. Many of these employees have
access to separate labour relations legislation – Public Services Act.
-Why no Domestics or Agricultural Workers? – concern about it being too burdensome on employer –
concern for the family farm –family farm is not the norm anymore – but Ontario still has not addressed this fact
– some jurisdictions deal with this by setting a specific number of workers who must be in the workplace etc –
complete ban not the answer
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AGRICULTURAL WORKERS
DUNSMORE: For decades, agricultural workers in Ontario have been excluded from the protection of the
labour relations legislation governing nearly all other workers in the province. In 2001, Dunmore, the Supreme
Court held that the exclusion of agricultural workers from the OLRA violated their freedom to organize, which it
found to be guaranteed by s. 2(d) of the Charter, and there could be a positive obligation on the gov’t to protect
the freedom for certain vulnerable populations. The court ordered that the Ontario government enact legislation
to provide agricultural workers with the protection necessary for them to meaningfully exercise their freedom to
organize. In response to Dunmore, the government enacted the Agricultural Employees Protection Act, 2002,
which excludes agricultural workers from the LRA but provides certain protections for organizing.


Access to organizing and not on collective bargaining. Dunmore said the trilogy still stands and does
not speak to bargaining or the right to strike. Exclusion was struck out to allow leg to address
Dunmore. Did by drafting Ag. Emp. Pro. Act.
gave rights of assembly, joining, participate in lawful activities etc – also created remedies for
breaches – but it is all about organizing and not collective bargaining
Fraser (2008) OCA: Challege to AEPA
Issue: whether the impugned legislation violates s. 2(d) of the Charter by failing to provide agricultural
workers in Ontario with sufficient statutory protections to enable them to exercise (a) their freedom to organize
and (b) their right to bargain collectively (asking for positive rights). Holding- AEPA substantially impairs the
capacity of agricultural workers to meaningfully exercise their right to bargain collectively.
Reasoning- Important elements missing from Act: no impose an obligation on employers to bargain in good
faith or, to bargain at all with an employees association; no mechanisms to resolve either bargaining disputes
regarding the interpretation or administration of the collective agreement; and does not preclude the formation
of multiple employees associations within a single workplace, purporting to simultaneously represent
employees in that same workplace with similar job functions.
Thus, AEPA does not provide necessary protections for freedom to organize and collective barg and provides
insufficient protection against employer interference in part because the tribunal has no expertise in labour
relations.
In Dunmore court set out a test for positive rights claims – in 2007 refined a bit in Baier case.
Application of Dunmore/Baier test:
1) Are the activities for which the appellants seek s. 2(d) protection associational activities? yes
2) Are the appellants seeking a positive entitlement to government action, or simply the right to be free
from government interference? Yes, seeking positive rights.
3) Are the claims grounded in a fundamental freedom protected by s. 2(d), rather than in access to a
particular statutory regime? Yes, fundamental freedom of association.
4) Have the appellants demonstrated that exclusion from a statutory regime has the purpose or effect of
substantially interfering with the freedom to organize or the right to bargain collectively?
Finds union has demonstrated that this leg has substantially interfered with coll bar ability but not freedom to
organize. Continues to find ag workers are especially vulnerable and require statutory support to have
representation for collective bargaining.
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


Focus on Roland farms- found that workers had gained collective representation with UFCW - and
that the UFCW had made some representations to the employer. The employer gave union and
opportunity – 15 minutes to make representation. Employer’s position was company was not
required to bargain with union. UFCW gave counsel a draft collective agreement and employer has
not responded.
In Roland when employer failed to collective bargaining there was no recourse for the employees.
Statutory duty to bargain in good faith, exclusivity – only 1 rep, also some kind of statutory dispute
resolution mechanism.
5) Is the government responsible for the inability to exercise the fundamental freedom?
Winkler points to Dunmore- employer could be held responsible against private employers even if the gov have
not actively interfered with their rights.
Can it be saved under s. 1?
No- it fails both the rational connection and minimal impairment tests
Add to Minimum Statutory requirements for Collective Bargaining (in order to pass 2(d))
1)
2)
3)
Duty to bargain in good faith (BCHS)
Majoritarian Exclusive Representation Rights
Some sort of dispute resolution system
CONFIDENTIAL CAPACITY
Most Canadian CB legislation (except Quebec) excludes employees employed in a confidential
capacity in matters relating to labour relations. Ont. 1(3)(b) –no person shall be deemed an
employee who, in the opinion of the Board...employed in a confidential capacity in matters relating
to labour relations
Canadian Union of Bank Employees v. Bank of Nova Scotia (1977) CLRB
Stenographer with access to personnel records sought status as employee • Three-part test for the
confidential exclusion: (1) Matter must be in relation to industrial relations ie information with respect to
negotiation, grievance or arbitration strategy (as opposed to industrial secrets or personal information); (2)
Disclosure would adversely affect employer; and (3) Person must be involved with information as regular
part of duties • Here, stenographer is an employee.
MANAGERIAL FUNCTIONS
OLRA s. 1(3)(b) also precludes those who exercise “managerial functions” from collective bargaining. The
rationale is to preserve arm's length relationship and avoid conflict of interest. Protect union from management
control and ensure loyalty of management to company.
Children’s Aid Society of Ottawa-Carleton (2001) OLRB
17
42 supervisors and assistant directors (termed “front-line management”) of social workers organized by
OPSEU sought to organize with CUPE • Duties included substantial involvement in hiring and
performance review processes – but no determinative powers
Examine indicia of economic power over employees, factors are power to hire, fire, promote, demote, grant
wage increases or discipline employees • Involvement in discipline and discharge of employees most critical
factor here •
Also look at contextual factors:
1. The size of the operation: implications for the roles of the workers
2. The nature of the managerial structure in the workplace- if very hierarchical (lower level managers may not
be managers may not be managers within the meaning of the Act) if structure flatter then more likely that
lower level managers are excluded.
3. The nature of the environment –some professional environments are very collegial ie. Nurses may be
involved in hiring and discipline, but that is not a managerial function, but rather just reflects the collegial
nature of the workplace
In this case: had meaningful input into hiring of staff – particular of casual workers. Not necessary for powers to
be determinative in order to exercise management function, it’s do they have “effective power of
recommendation” (is their recommendation followed). Here supervisors had almost complete control over
performance reviews, which had critical impact on whether staff is hired, promoted, permanent positions
(substantial economic influence over other workers). Also play at least as important a role in discipline as other
managers.
Would a separate bargaining unit ameliorate the conflict of interest? It may reduce the conflict of interest
with other employees but not with employer. Chapman points out they even though they are excluded, they can
still deal and collectively bargain with their employer through a non-union association, just can’t be certified.
Re Quebec Telephone (1996) – Canada Labour Relations Board***NO DIRECT PRECENTIAL VALUE
FOR OLRB- LIKELY PERSUASIVE THOUGH
First- and second-level managers sought to be included in same bargaining unit as employees • Any authority
exercised by first-level managers was according to very precise pre-determined policy framework, authority of
second-level managers also restricted but potentially much greater
Under federal jurisprudence, power to decide (not power to recommend) determining factor • Power to decide
means power with respect to planning, organizing, staffing, co-ordinating, directing, and controlling • Other
factors are extent of authority in financial matters, fluidity of management structure, context in the decisionmaking framework of the organization (how do duties relate to decision making process in particular
workplace)• First-level managers included because their authority very limited by well-defined framework, only
autonomy stems from operational considerations (technical realities) rather than true managerial authority • One
such position however excluded because of great distance between him and supervisor, role of representing
company, and authority over decisions regarding hiring of staff, etc. • Conversely, second-level managers
excluded • Their discretions arise not just from technical knowledge but from use of management processes.
QUALIFIED TRADE UNIONS
Employer interference with unions is also prohibited. See, for example, OLRA s. 15. Board shall not certify a
trade union if any employer or any employers’ organization has participated in its formation or administration
or has contributed financial or other support to it.
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The union as an organization must also meet certain requirements.
United Steelworkers of America v. Kubota Metal Corporation (1995) OLRB
Steelworkers certification efforts challenged by existing “Employees’ Association Committee” which had no
constitution, assets, or members, and relied on employer support to function • Steps to insure a trade union has
been brought into existence include (1) A constitution setting out purpose (which must include regulation of
labour relations) and procedure for electing officers and calling meetings; (2) Constitution presented at meeting
for employees’ approval; (3) Employees admitted into membership; (4) Employees ratify constitution; (5)
Officers elected pursuant to the constitution.
OLRA S. 1(1) definition of trade union requires that its objectives include “regulation of relations between
employers and employees.” See Graham Cable TV/FM, Toronto v. Cable Television Workers Association
(1987) CLRB, where the association’s true aim was not to regulate labour relations but merely to get the
incumbent union out.
WHO IS THE EMPLOYER?
York Condominium Corp. No. 7
Seven factors to determine whether a particular entity is the employer of the employees in question - Who
manages them, who pays them, who disciplines them, who hires them, who has the power to terminate them,
who do employees perceive to be employer, is there intention to create employer/employee relationship.
Kennedy Lodge Ltd.
The object of the exercise of determining who is the employer is to: “identify for labour relations purposes, the
party exercising fundamental control over the working lives and the working environment of those in dispute.
UNION RECOGNITION
"union recognition" - when a group of workers (bargaining unit) seeks to be represented for the purposes of
negotiating and administrating a collective agreement with their employment. Want this union recognized as the
exclusive bargaining agent for the defined group of workers.
Union Recognition= certification or voluntary recognition-> become unionized
Effect: This union does become the exclusive agent for this group of workers. All individual workers rights
with respect to bargaining and administrating the agreement now merge, no more individual bargaining can
occur.
Statutory Process: ss. 7-15 of the OLRA- when Board is considering granting certification, there are a number
of questions that the applicant must satisfy:
1. STATUS: Is the applicant a trade union? Is the employer that they are applying to, the employer of
these employees? – see above.
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2. APPROPRIATENESS: Is the bargaining unit appropriate?
3. TIMELINESS: Is the application timely? Are there any time bars?
4. SUFFICIENT SUPPORT: Does the union have sufficient support to be certified?
QUESTION 4: SUFFICIENT SUPPORT
Two possible models: Card-based (Construction) or Mandatory vote (all other industries)
Mandatory Vote Model
Sections 7-15- basic steps
1.
2.
2.
Card collection step- Union seeks evidence of employee support through union membership cards and
demonstration of support. If the union is able to show cards for at least 40% of employees for the
proposed bargaining union. Proceed if 40 %.
Application for certification is made.
Application provided to employer (OLRA s.7(11)). 2 day time limit for employer to respond s.7
(14). Employer does not know who signed cards, but employer becomes aware that unionizing is going
on.
5 days Board then holds a vote (85% actually go beyond this time limit). Union is entitled to be
unionized if it gets 50% of the ballots cast (s.10(1)) .
Board decides on certification.
3.
4.
Mandatory vote model criticism – when the application is made, the employer will know that union organizing
is going on. This gives the employer five days to oppose union (usually more) – evidence is that employers do
this. Karen Bentham found 88 % of employers engage in union avoidance activity and 13 % say they have
engaged in what they believe to be illegal acts. Model invites employers to persuade employees against
unionizing (sometimes illegally)
Card-Based Model
1. Union seeks membership- if they get cards from more than 55% then automatic certification
(provided status, timelines, appropriateness are met)
2. If they get less than 55 %, than the mandatory vote process is followed- under card-based, most
application do not use a vote- typically the union gets more than 55 %
Criticism of card-based model: employees may not understand significance of signing a card.
Why used in Construction:
1. Construction industry is characterized by short-term jobs- particular group of workers may only be there
for a short time- employers actually supported card-cased certification- simply easier and more efficientconstruction industry employers like to have unionized workers
2. A politically costless decision to make for the government- both unions and employer want card-based
UNION CERTIFICATION APPLICATION:
20
Requirements: Applicant trade union and employer must be identified. There must be a detailed description of
the proposed bargaining unit. Includes a list of names but this list is not given to employers. (OLRA s. 7(12) &
(13)).
1)
2)
3)
4)
What type of employees? (full time, part-time, all)
Who is the employer (Must get registered name right)
Location (good to have address)
Identify the exclusions ( exclude managers and already unionized employees, maybe also something like
“excluding office, clerical and sale staff)
5) How many employees are in the unit? (difficult to determine, but essential- can be quite a point of
contention- very important when it comes to vote time)
TYPICAL ‘PATTERN’ FOR BARGAINING UNIT DESCRIPTIONS
All employees {type of employee: all part-time, all full-time, part-time and full-time…} of ABC
Industries Ltd. {identify employer} in the City of Kingston {identify location: City of Kingston at 111
King St. plant}, save and except Managers and persons above the rank of Manager and office, clerical and
sales staff {identify exclusions}, and persons for whom a trade union held bargaining rights on the date
of application {expressly exclude already unionized workers}.
EMPLOYER RESPONSE:
Employer has two days to file a response (OLRA s.7 (14)) if disagree with description of proposed bargaining
unit.
1) Does the employer agree with the characterization of the business (eg. Is it actually agricultural bus.?)
2) Does the employer agree with the size of the bargaining unit? (maybe the employer wants a bigger
number to make it more difficult to get the percentage vote)
3) Do they agree with the description of the bargaining unit? Employer may want more people excluded
than the applicant does-gets to say if this is the right description of employees work)
4) Do they agree with the appropriateness of the unit? (have to set out why they think this unit is NOT
appropriate, if they want to challenge)
5) When do they want to hold the vote? (preference for time and location of the vote)
QUESTION 3: TIMELINESS
When can certification applications be filed? Are there any time bars?
Basic rule -- s. 7(1) -- If no union has been certified and there is no collective agreement in force, "[a] trade
union may apply at any time to the Board for certification as bargaining agent for the employees in the unit."
Generally, a union may apply for certification at any time (OLRA s. 7(1)), with three exceptions:
• A union that has failed in an earlier attempt to establish a bargaining unit (withdraw before vote, withdraw after
vote but before disclosure of results, withdraw after election loss) may be barred for a certain period (OLRA ss.
7(9)-(10), 10(3))
21
• If a certification is successful, a newly-formed bargaining unit is subject to a one year bar protecting it from other
unions (OLRA s. 7(2)). This bar can be extended in the case of a legal strike or lockout, and is generally shorter for
voluntarily recognized unions
• If union concludes a CA, application to terminate its bargaining rights can only be brought during certain periods,
called "open season" - in ON, this is last 3 months of the CA (OLRA s. 7(4(-(5)
Rules when a certification or voluntary recognition already exist e.g. when can a different union certify?
Circumstances:
Application can be made:
A union holds certification for the
employees, but no first collective
agreement yet.
s. 7(2) - After one year from the date of certification.
(This may be delayed if the statutory conciliation process
has commenced.)
Voluntary recognition exists.
s.7(3) - Another union can apply for certification after one
year from the date the voluntary recognition was entered
into.
Collective agreement with a term of 3
years or less.
s.7(4) - Any time during the final three months of the life
of the collective agreement. Another application can then
be made
Collective agreement with a term of
more than 3 years.
s. 7(5) provides 1.
between the beginning of the 34th month and
before the 37th month of the collective agreement;
and,
2.
thereafter, during the 3 months preceding the end
of each year of the collective agreement.
Rules applicable when a previous certification application has failed ?
e.g. when can a union reapply for certification ?
Circumstances: Application can be made:
Union lost vote.
s. 10(3) - If the OLRB dismisses an application following a lost vote, then no
union can apply for a bargaining unit that includes an employee who was in the
bargaining unit in the original application until one year has passed since the
original application was dismissed.
Union withdrew
application
before vote
s. 7(9) - OLRB has a discretion to impose a one year bar. (Beamish deals with
this)
Union
s. 7(10) - One year bar on applications, counted from the date of withdrawal. withdraws
APPLIES ONLY TO THE APPLICANT UNION - NOT AS BROAD AS S.
application after 10(3) – OTHER UNIONS CAN STILL APPLY FOR CERTIFICATION
vote
22
Certification Withdrawals -there are penalties that can be imposed - need to be fairly certain of success when
they choose to apply
K.J. Beamish Co. (OLRB 2007) (deals with s. 7(9) discretionary one year ban after union withdraws)
After the Board orders representation vote (card-based model-construction), union seeks to withdraw
application and submit a new one, Board must consider OLRA s. 7(9) time bar.
Board finds two factors go towards imposing the bar: 1) Board should impose discretionary bar when union
withdraws application in the face of likely defeat at the polls (if union withdraws an application after a vote has
been ordered, inference is that it anticipated defeat); and 2) the freeze which applies to the employer is a burden
and it is not right to impose it successively. However, Board only imposed 6 month bar not 1 year.
VOLUNTARY RECOGNITION
Universal Workers Union v. Pine Valley Enterprises Inc. (2007 ON L.R.B.)
Facts: Union applies for certification of bargaining unit over which employer has already signed voluntary
recognition agreement with another union. Union 2 argues that relationship between union 1 and employer not
actually voluntary recognition. There is a memorandum of agreement stating the employer and union are
entering into voluntary agreement-signed by reps of employer and reps of union. The Board points out there is
no voluntary recognition process under the Act.
 But the Board notes that the act does refer to voluntary recognition in s. 7(3) – where an employer and
union agree that the union will be the bargaining agent for a group of workers, no new union can apply
for certification until one year after the recognition agreement.
Determines necessary elements of voluntary recognition, using 7(3) as guidance: 1) document must be in
writing 2) it must express an agreement 3) it must be signed by the parties to the agreement 4) the agreement
must entail that the employer recognizes the union as exclusive bargaining agent of employees in defined unit
(in this case there was no specific term, but it was done through inference) 5) the bargaining unit must be
defined 6) there must be no collective agreement between the parties 7) there must be no declaration of
decertification under s.66)
* MOA does not use exclusive language as per defining as exclusive bargaining unit, but this not ruled to
invalidate VR. Did set out description of bargaining unit and that the parties intend to have this unit bargain for
them.
DECERTIFICATION
OLRA 62-66- Roughly parallel to the certification process- a group of employees applies- > 40% = vote
Ways that Decertification Can come about:
1. S. 62 – RAID: Act allows another union to come in - and allows the union to be certified - s. 62 provides
that if a union raids another certification, then that certification is decertified
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2. S. 66 – EMPLOYER CHALLENGE - employer challenges voluntary recognition - says that it is not
legitimate – i.e. does not meet the Universal workers test - if the employer successfully challenges, it can
get a decertification
3. S. 64 – FRAUD: if the certification was obtained through fraud, it will be rescinded
4. S. 63 - MAJORITY WISH: the normal route - where a majority of employees indicate that they no
longer want to be represented by this trade union
5. Section 63(17) – ABANDONMENT: - if the union abandons the employees
6. Section 65 - FAILURE TO NEGOTIATE: unusual - employer or employees can apply for
decertification - parallel to abandonment - In circumstances where the union fails to negotiate, the
employer can apply for decertification
TIMELINESS - DECERTIFICATION
Circumstances:
Application can be made:
A union holds certification for the
employees, but no first collective
agreement yet.
s. 67(1) - After one year from the date of certification.
(This may be delayed if the statutory conciliation process
has commenced.)
Voluntary recognition exists.
s. 66 - Another union can apply for certification after one
year from the date the voluntary recognition was entered
into.
Collective agreement with a term of 3
years or less.
s. 63(2 - Any time during the final three months of the life
of the collective agreement.
Collective agreement with a term of
more than 3 years.
s. 63(2) provides 1. between the beginning of the 34th month and
before the 37th month of the collective agreement;
and,
2. thereafter, during the 3 months preceding the end
of each year of the collective agreement.
Tenaquip v. Teamsters (1997) OLRB- SECTION 63 decertification.
Two employees post notice about decertification and get little response, two weeks later use employer
boardroom for decertification meeting during working hours and get required signatures
OLRA s. 63(16) gives Board discretion to dismiss decertification application if it is initiated by employer or if
there is evidence of threats, coercion, or intimidation
"Initiation" means early or material involvement or giving rise to or otherwise significantly facilitating the
application
24
• Interpreted broadly- No direct evidence of employer involvement, but circumstances give rise to conclusion
that employer must at least have been aware that boardroom and employees' work time was being used for these
purposes
• Use of employer resources, plus "open and notorious" nature of petitioners' conduct, would lead dispassionate
observer to reasonably conclude that the employer directly supported the application
• Employer through cooperation with and tolerance of petitioners' activities communicated support of
application
• Significant that petitioners got no results after posting notice, but got significant boost once employers'
resources were clearly behind them.
QUESTION 2: APPROPRIATENESS OF BARGAINING UNIT
s.1(1) “bargaining unit” means a unit of employees appropriate for collective bargaining, whether it is an
employer unit or a plant unit or a subdivision of either of them;
9. (1) Subject to subsection (2), upon an application for certification, the Board shall determine the unit of
employees that is appropriate for collective bargaining, but in every case the unit shall consist of more than one
employee and the Board may, before determining the unit, conduct a vote of any of the employees of the
employer for the purpose of ascertaining the wishes of the employees as to the appropriateness of the unit.
Certification pending resolution of composition of bargaining unit
(2) Where, upon an application for certification, the Board is satisfied that any dispute as to the composition of
the bargaining unit cannot affect the trade union’s right to certification, the Board may certify the trade union as
the bargaining agent pending the final resolution of the composition of the bargaining unit.
Crafts units (BOARD WANTS THEM IN SEPARATE UNIT)
(3) Any group of employees who exercise technical skills or who are members of a craft by reason of which
they are distinguishable from the other employees and commonly bargain separately and apart from other
employees through a trade union that according to established trade union practice pertains to such skills or
crafts shall be deemed by the Board to be a unit appropriate for collective bargaining if the application is made
by a trade union pertaining to the skills or craft, and the Board may include in the unit persons who according to
established trade union practice are commonly associated in their work and bargaining with the group, but the
Board shall not be required to apply this subsection where the group of employees is included in a bargaining
unit represented by another bargaining agent at the time the application is made.
Dependent contractors (CAN BE SEPARATE, OR IN SAME IF THEY WANT)
(5) A bargaining unit consisting solely of dependent contractors shall be deemed by the Board to be a unit of
employees appropriate for collective bargaining but the Board may include dependent contractors in a
bargaining unit with other employees if the Board is satisfied that a majority of the dependent contractors wish
to be included in the bargaining unit. 9.4 the same for professional engineers.
Process for Appropriateness Determination
Union attempt: Union is faced with a strategic choice- the workers they want to bargain on behalf of, may not
be the group that they think they can get support from or vice versa. – possible contradictory purposes.
25
1. The proposed bargaining unit are the electorate/and those from which they will try to get that 40%
2. The proposed unit is also the worker that they hope to bargain on behalf of in the future.
Board’s view- Look at the practicalities of collective bargaining when making a s.9 decision- weighs access to
CB on one hand, and industry stability on the other.
Unit need not be “most appropriate”: the question for the Board is whether the unit is an appropriate unit –
more than one could be appropriate.
Fragmentation not good: The Board prefers all employees with the workplace be included in the bargaining
unit. Does not want constant work stoppages of different unions, in same workplace. Strike of one unit can shut
down whole business. Prefer to avoid – UNLESS THERE IS A GOOD REASON.
Community of interest is important: main question is whether the workers have a community of interest- can
they rationally and reasonably negotiate together? If they have conflicts of interests, may be impossible to
represent them as a whole- cause CB to be difficult.
-Fragmentation is allowed when there is not a sufficient community of interest- many large workplaces
have multiple units eg. Hospitals,: nurses, support staff, interns- all different units.
ICBC v. CUPE (1974) CLRB
Preferred bargaining unit is all employees of a single employer • administratively efficient, facilitates
collective bargaining, does not impede lateral mobility, allows for common framework, promotes
industrial peace and stability.
Metroland Printing, Publishing and Distributing Ltd (2003) OLRD
Union seeks to certify whole workplace with part-time, temporary, and co-op/student employee, employee
wants separate units-especially for full time • Traditionally, two-part test for appropriateness of bargaining
unit: (1) Workers must have sufficient community of interest that they can bargain together; and (2) The
unit must not create serious labour relations problems for the employer •
New Test: employees of the same employer will generally be found to have sufficient community of
interest unless this creates serious labour relations problems for the employer (creates presumptive
community of interest) • Here differences not so great to cause labour relations problem, size of workplace
(10 workers) a consideration.
• Something to think about - Fragmentation (in itself can cause labour relations prob) vs. Community of
interest
When you think about Appropriateness- Think about...








Similarity in scale and manner of determining earnings, benefits, and conditions and kind of work;
The frequency of contact or interchange among employees and the geographic proximity of workplaces;
Continuity or integration of production processes;
Common supervision and determination of labour relations policy
Relationship to the administrative organization of the employer;
History of Collective Bargaining
Desires of affected parties and employees;
Extent of union organization
26
CASE OF CASUAL WORKERS
Workers who work irregular hours as required:
CIBC v. BCGEU (1992) CLRB
Generally, CLRB prefers to exclude casuals due to concerns over preventing FT access to CB and
insufficient community of interest • However, they can under certain circumstances be included in the
same bargaining unit • It may be appropriate, for example, when FT greatly outnumber casuals and there
is a continuity of employment among casuals (i.e. regular standby pool of employees).
MULTIPLE LOCATIONS
• The bargaining unit has two functions. It serves as an electoral district for certification purposes, and it
serves as the basis for collective bargaining. These two functions are often in conflict in cases where
employer has several branches. Although it may be easier to organize branch by branch, single branch
units may not have enough power to engage in effective collective bargaining.
SORWUC v. CIBC (1977) CLRB
SORWUC sought to certify 8 bargaining units, each corresponding to a single branch, CIBC countered
only appropriate bargaining unit was all branches in Canada• Traditionally, the single location unit is a
natural bargaining unit, because this is where the employees work and interact with each other • Workers
must be given 'realistic possibility of exercising their rights under the Code, and Board must keep in mind
that too large units will abort any possibility of collective bargaining • Concerns over administrative
efficiency and convenience in bargaining for employer, lateral mobility of employees, desirability of
common terms of employment, and reduction of potential incidents of industrial unrest not strong enough
to displace single location unit as natural bargaining unit. Note: Only a very wealthy national union would
be able to sustain an organizing drive- and at this time there was zero unionization in banking industry.
Single branch unit to be appropriate because: 1) access would be eliminated where unit was too large; 2)
organizing banks on anything other than a branch by branch basis was impossible; 3) argument that it would
lead to different terms and conditions across branches was rejected because that was already the case; 4) Board
felt that CIBC’s concerns about industrial stability were unfounded – in dealing with banks, board is willing to
use a very contextual approach
• However, single location organizing proved impractical for the small feminist union in the banking
industry because of disparity of bargaining power between large, national banks and single branches with
few employees. This led to different approaches.
CNBU v. National Bank (1986) CLRB
CNBU sought to organize bargaining unit of all branches in Rimouski • May be appropriate to certify a
geographical 'cluster' of single location units into the same bargaining unit.
National Trust No. 2 (1988) OLRB (because trusts provincial)
Union sought to organize seven geographically dispersed branches in Metro Toronto into one bargaining
unit • In National Trust No. 1 it was determined that the regional unit would be appropriate. However,
Application here rejected because of lack of majority support in all of the branches. Reveals difficulty of
multiple location units- only appropriate if sufficient support from all branches in region, otherwise
concern about drawing in branches that do not want to be part of unit.
27
United Rubber, Cork, Linoleum & Plastic Workers of America v. Michelin Tires (Canada) Ltd.
(1979) CLRB
Michelin had two factories in NS 150km apart, union sought to organize one • Although strike at one
factory would inevitably lead to work stoppage at the other, interdependency a fact of economic life
applicable even across employers and not enough to override factors in favour of separate bargaining unit.
Here the plants were separate by large geographic distance, admin was different.
Michelin Amendment: Michelin lobbied for a legislative change in Nova Scotia. Where there are
interdependent locations operated by one employer, the board does not have discretion to determine
appropriateness- if employer request, the Board must find combined unit is appropriate.
Brian Langille suggests that the conflict between the conflicting functions of bargaining units could be
better resolved by the solution in a case called Amon Investments Ltd (1978) BCLRB - grant
certification of single location but stipulate that successful drive at another location would result in that
location being grafted onto the current bargaining unit. This would meet twin goals of allowing workers
to exercise their rights and meeting employers' concerns about long-term industrial stability. Concerns
over democracy resulting from functional interdependence (workers at one factory having no input in
decision at second factory that could cause work stoppage at first factory) ignore the fact that (1)
functional interdependence is pervasive and crosses employer lines; and (2) there are pragmatic
difficulties in organizing very large bargaining units which may have the effect of denying rights to all.
The Amon principle strikes a healthy balance ensuring all are consulted and have the opportunity to
exercise their rights.
VARIANCE
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.
KTU v. Whig-Standard (2008) OLRB – “Variance”
KTU seeks to consolidate six bargaining units into three - from Full-Time Editorial, Part-Time Editorial,
Full-Time Advertising, Full-Time Business, Part-Time Advertising, Business, and Reading Sales, and Mail
Room into Editorial, Advertising/Business Reading Sales, and Mail Room
Once first CA is concluded, issued certificate is 'spent' - i.e. bargaining rights conferred by certificate are
supplanted by those in CA • Subsequent bargaining authority derived from previous CA, not initial
certificate • Theoretically the Board could use reconsideration power under s. 114 (1), but has taken the
view that it will have no practical effect in this case because the subsequent CAs have overridden initial
certificate and Board has no stat power to alter recognition clauses in negotiated CAs. • Conversely, under
the Federal Code, rights under a certificate continue and parties not free to bargain a modification of those
rights.
28
SUCCESSORSHIP
Sucessorship: Where one employer or union has been substituted for another.
Successor Employer- hinges on two terms “business” and “sells”
Successorship is engaged where there is a sale of business (with sale as defined in OLRA s. 69(1)).
• See, for example, OLRA ss. 68-69. Note exception in s. 69(5).
Sale of business
69. (1) In this section,
“business” includes a part or parts thereof; (“entreprise”)
“sells” includes leases, transfers and any other manner of disposition, and “sold” and “sale” have corresponding meanings. (“vend”,
“vendu”, “vente”)
Successor employer
(2) Where an employer who is bound by 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 person were named as
the employer in the application.
…..
69 (5) The Board may, upon the application of any person, trade union or council of trade unions concerned, made within 60 days
after the successor employer referred to in subsection (2) becomes bound by the collective agreement, or within 60 days after the trade
union or council of trade unions has given a notice under subsection (3), terminate the bargaining rights of the trade union or council
of trade unions bound by the collective agreement or that has given notice, as the case may be, if, in the opinion of the Board, the
person to whom the business was sold has changed its character so that it is substantially different from the business of the predecessor
employer.
…..
Effect of notice of declaration
(10) For the purposes of sections 7, 63, 65, 67 and 132, a notice given by a trade union or council of trade unions under subsection (3)
or a declaration made by the Board under subsection (6) has the same effect as a certification under section 10.
-kicks in where there has been a sale of the business - effect: successor employer takes on the
obligations of the predecessor
69(5) - an exception - if the successor has changed the character of the business such that it is
substantially different, then there will not be a successorship declaration
29
69(10) - a successor declaration has the same effect as a certification in terms of accessing the act
Ajax v. National Automobile, Aerospace, and Agricultural Implement Workers Union of Canada (CAW)
(1998) OCA (aff'd SCC 2000)
Ajax takes over operation of public transit system and hires mostly employees of former private operator,
union claims successor rights • Because of remedial nature, s. 64 (now s. 69) should be broadly
interpreted • Particularly, definition of "sells" (see s. 69(1)) includes "transfers" • Generally, successorship
rules require that for there to be a sale/transfer something be relinquished by the predecessor and acquired
by the successor • Here, workforce was relinquished by Charterways and subsequently acquired by Ajax •
This constituted a transfer of the workforce • In other words, Charterways' service consisted of the
provision of this workforce and so it could be said to be their most valuable asset • Particularly as work
force continuity a central part of the business.
CONTRACTING OUT
Canada Post Corp. v. CUPW (Nieman's Pharmacy) (1990) CLRB- Note under CLRB but provision
similar
Work contracted out from postal outlet in pharmacy to pharmacy proper, union attempts to extend
bargaining rights coverage by claiming successorship • Successorship provisions protects existing
bargaining rights, not jobs • Bargaining rights do not follow the work subsequent to contracting out • For
successor rights to apply, business as a whole or any part thereof must pass from predecessor to successor
• Not enough that work previously done by employees of one employer now done by employees of
another employer - there must be some continuity in the employing enterprise as well as continuity in the
nature of the work • Difference between Niemans and Ajax is that here only work moves, not workers (this
does not qualify as transfer of business) - thus, CLRB frames it as a union attempt to protect work.
RELATED EMPLOYERS
Some situations may result in workers being employed by more than one corporate entity. But from the
perspective of labour law, many Canadian jurisdictions provide that labour board may treat related
employers under common control and direction as a single employer.
• See OLRA ss. 1(4)-(5). Note onus shift in s. 1(5).
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, firm, 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 corporations, 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
30
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.
White Spot Ltd. v. British Columbia (Labour Relations Board) (1997) BCSC
Franchisor sells business to franchisee, White spot and franchise argue franchise is not bound by old
agreement, Board they declared common employer • Key factors that franchisor controlled menu, prices,
and suppliers, charged marketing fee and trained managers • No motive to undermine union •
Nevertheless, employees must bargain with White Spot to bargain effectively and franchisor's
significant degree of control bring restaurant under "common control and direction."
See also Kennedy Homes No. 2 (1980) OLRB.
UNFAIR LABOUR PRACTICES
ORGANIZING CONTEXT
Baron Metal Industries (2001) OLRB
Tamil gang members hired during organizing drive under suspicious circumstances, abandon their employment
days later • Evidence shows they uttered threats to other employees, and that someone in management had
given them union supporters' names • Subsequent representation vote results in tie • OLRB orders significant
range of remedial measures available, but this still ineffective. This case occurred when remedies available to
Board were more limited. “remedial certification” was not available- today if ULPs are so serious , the board
may order certification as the remedy.
Key Provisions: section 70, 72, and 76

Founding right: all unfair labour practices in s.5 right to collective bargaining - this is the principle
right operating in background of these discussions.
5. Every person is free to join a trade union of the person’s own choice and to participate in its lawful activities.

s.70- nothing in s.70 should restrict employees freedom of expression unless it is.. (non-motive
provisions)
o
This is explicit recognition of employers speech
o
s.70 International Wall covering test o
s.72 & s.76 (illicit motive) if impugned conduct was tainted by an improper motive would be
sufficient to bring action into these provisions. Reverse onus s.96(5)
o
s.70 & s.72 apply to employers; s. 76 applies to employers, unions, and individuals.
o
s.71 - union should not interfere with an employers organization
o
s.73-prohibits intimidation
Lawyers tend to combine sections because language is quite broad but remember: s. 72 (reverse onus
only 72), s.76 (no reverse onus), and s. 70 (no reverse onus and no motive).
31
Section 70 - prohibits interference with formation, selection or admin of trade union- importantly has an
exception regarding employers communication - nothing in section 70 will deprive an employer of expressing
its views as long as they do not use, coercion, intimidation, threats, promises or undue influence.
(No reverse onus and no motive)
Employers, etc., not to interfere with unions
70. 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.
Section 72 - provides a detailed laundry list of s stuff what employers are not allowed to do
Employers not to interfere with employees’ rights
72. No employer, employers’ organization or person acting on behalf of an employer or an employers’ organization,
(a) shall refuse to employ or to 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.
Section 96(5) - procedural provision - imposes a reverse onus on employers - applies to section 72 complaints the knowledge of this particularly in the mind of the employer - NOTE: reverse onus only works in s. 72, not
76 or 70
Burden of proof
96(5) 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.
Section 76 – bans intimidation and coercion – an illicit motive ULP
Intimidation and coercion
76. 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..
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ILLICIT MOTIVE ULPS (S.72 & 76)
An illicit motive is an essential ingredient of some ULPs. For example, legislation commonly prohibits
employers from dismissing or discriminating against an employee because he or she is a member of a trade
union. See CLC s. 94(3) and OLRA ss. 72, 76.
Often, an employer has the burden of proving the absence of anti-union animus. See CLC s. 98(4) and OLRA s.
96(5). Note that the onus shift under the OLRA is with respect only to s. 72 and not s. 76.
Duchesneau v. Huronne-Wendat (1999) CIRB- deals with s.94(3) of CLRC but similar to s. 72
In the midst of an organizing drive, employer dismisses union representative over allegations of (and criminal
charges for) fraud • Even if anti-union animus is only an incidental reason for dismissal, ULP has been
committed • Fact that employee's questionable activities had been known for years, but were only reported and
investigated in the midst of an organizing drive, as well as negative reaction of Chief to certification
application, raised suspicion of illicit motive • Ultimately, employer did not discharge burden of proof to show
absence of anti-union animus.
Principle: anti-union animus does not have to be the only, or the primary motive, for it to count as an ULP. If it
is at all “tainted”- may be enough to establish a ULP
Policy reason: “chilling effect” on other employees against joining the union and exercising their right.
NON-MOTIVE ULPS
See CLC s. 94(1)(a) and OLRA s. 70.
CLC v. International Wallcoverings (1983) OLRB
Employers' use of strikebreakers results in confrontation and altercation at restaurants, nine workers
dismissed, three were party to assault, one damaged vehicle, three were present but were not party to assault,
two were not present • Appropriate in some cases to take non-motive approach to OLRA s. 70 • Test here is
whether or not employer's conduct only incidentally affects trade union • This calls for balancing between
negative effect "protected activity" of labour and legitimate "business purposes" of management • Conduct
breaches s. 70 where it "has a significant impact on a protected activity and, while supported by good faith, does
not reflect a persuasive or worthy business purpose."
Slinn: even where there is no illicit motive, if the activity has a serious negative effect on the unions practice or
organizing, it may constitute a ULP if the employer’s business does not outweigh the negative effect on
protected union practice.
CAW v. Toromont Cat (2001) OLRB
Filipino Caterpillar mechanic who (unbeknownst to employer-therefore no anti-union animus) had signed up to
be picket captain throws two home-made explosive devices onto employer's property during picket • Employee
had not yet become picket captain, termination of employment did not interfere with union's lawful strike or
ability to conduct it • Therefore, termination of employment does not constitute interference under s. 70.
33
CONTRACTING OUT OR SHUTTING DOWN PART OF BUSINESS WHICH CAPTURED BARGAINING UNIT
Westinghouse Canada Ltd. (1980) OLRB
Employer closes a centralized manufacturing operation and opens several new plants in different locations,
deliberately located in areas where there was little trade union presence • Employer argues legitimate business
purpose in evading union arising from economic difficulties, but board finds breach of s. 70 anyway • However,
Board suggests answer may be different if economic crisis caused by collective bargaining-related factors, and
employer approached union for relief but received unsympathetic or unsatisfactory response • No breach of s.
72 because no anti-union animus found.
Kennedy Lodge Nursing Home (1980) OLRB
Employer contracts out housekeeping and janitorial functions and lays off 16 of 65 union employees • In
Westinghouse, evidence was that employer had explicitly set non-union operation as goal to be achieved • Here
however, only motivation is saving costs, which is legitimate business purpose • Despite large negative effect,
business justification balanced it out • Therefore no breach of s. 70 or s. 72.
Kennedy Lodge Nursing Home #2 (1980) OLRB
Employer contracts out nursing and health services • As employer did not relinquish control over employees
performing "core functions" of the business, company was still the employer • Further, where employer
retains control after contracting out, inference can easily be drawn that employer has acted in order to
undermine collective bargaining rights and has therefore committed ULP • Breach of both ss. 70 and 72.
EMPLOYER’S SPEECH
"Language may serve to enlighten a hearer, though it also betrays the speaker's feelings and desires; but the
light it sheds will be in some degree clouded, if the hearer is in his power. Arguments by an employer directed
to his employees have such an ambivalent character; they are legitimate enough as such, and pro tanto the
privilege of "free speech" protects them; but, so far as they disclose his wishes, as they generally do, they have a
force independent of persuasion" - Learned Hand J., NLRB v. Federbush Co. (1941) US2CCA
NOTE exception for employer's freedom of expression in OLRA s. 70.
s.70…”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.
United Steelworkers of America v. Wal-Mart Canada Inc. (1997) OLRB- complaint under s.70
After Wal-Mart catches wind of organizing drive, employees have mandatory morning rap session, where they
are a captive audience• At one such meeting an associate gives anti-union speech, colleagues not permitted to
reply and management does not distance itself from comments • During days leading up to vote, four managers
initiated dozens of one-on-one conversations with employees at work and solicited questions about the union, at
all times they refused to answer questions on whether the store would close
Allowing anti-union speech at management-controlled meeting and not allowing balancing views or distancing
itself from comments was intimidation contrary to s. 76 • Strategy of having four on-site managers constantly
engaging employees in conversations about the union intimidation contrary to s. 76 because evidence was that
it was designed to identify union supporters • Practice of refusing to answer questions regarding closing of
store found to be tacit threat that it would, particularly given (a) culture of free communication fostered in the
34
workplace; and (b) the fact that it would not be illegal to say the store would not close, it would only be illegal
to say the store would close.
When does an employer’s speech cross the line? SPIT Test
S – spying or surveillance (not allowed to try and get info on unionization, as in Wal-Mart)
P- promises
I – Intimidation
T- Threats
Question of how the employee reasonably understands the communication
Examples:




Alice, come into my office and talk about the union- intimidation
This union does not care about companies like ours- probably does not fit
I swear this store will be closed if there is a union here – promises
Misstating the law- may become intimidation.
NEGOTIATING CONTEXT
Founding Right: Founded in s.17- Duty to bargain in good faith and make all reasonable efforts to settle.
s. 17 – simple breach by not bargaining in good faith, not making reasonable efforts to settle
s. 73(2) - Union side ULP – provides that no union shall interfere with negotiations- bargain directly with
another employer to displace another union.
s.73(1) - Employer analogue- prohibits employer from bargaining with individual workers or bargaining with
another union.
s. 86 (1) - Freeze- attaches for the entire negotiating period. Prohibited from unilaterally changing the
conditions of work - not deep freeze, there are some changes that can be made under certain conditions (see
case law)
No interference with bargaining rights
73. (1) No employer, employers’ organization or person acting on behalf of an employer or an 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.
(2) 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.
35
THE STATUTORY FREEZE
CB legislation generally provides for a two-stage "statutory freeze," prohibiting unilateral alteration of terms
and conditions of employment:
• During the certification process
• During much of the bargaining process after certification
There is no requirement of anti-union animus.
OLRA s. 86.(2) – Organizing period freeze: rationale is that if employer chance terms and conditions, that could
be an infringement of 70,72, and 76- could have effect the ability of employees to exercise their rights.
e.g. if they have pay raise , could be sign as bribe. If scheduled pay raise cancelled, might be viewed as threat.
s.86(1) – Negotiation period freeze: rationale is different- the status quo of the workplace is the starting point
for negotiations- if, for example, they chance policy on vacation post-certification- changes the goal postsunion would have to bargain and give something up to get to original status quo.
Working conditions may not be altered
86. (1) 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.
(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.
Three tests: (remember this is not a deep freeze)
1. Business as before
2. Reasonable Expectations
3. Purposive Test
Which to use? You get to argue which test is the appropriate one for each case.
36
BUSINESS AS USUAL TEST- use if pattern
CIBC v. Union of Bank Employees (1989) CLRB
Employer discontinued established practice of annual wage increase at branches where union had applied for
certification • Statutory freeze means "business as before" • Need for consent applies to day-to-day working
conditions, including existing wage rates as well as the wage structure, hours of work, classifications, duties and
functions, transfers, layoffs, promotions, etc. Board found discontinuance regular practice to be ULP.
REASONABLE EXPECTATIONS TEST- use if first time event
Simpsons Ltd. v. Canadian Union of Brewery Distillery Workers (1985) OLRB
National department store chain, faced with financial difficulty, laid off 10% of its national workforce including
a substantial number in a facility where the union had recently acquired bargaining rights • Employer also
contracted out further work from this facility • Freeze provisions catch changes which can be measured against
a pattern, as well as 'first time' events • In the latter category, the 'business as before' principle is not always
helpful • Focus then turns to 'reasonable expectations' of employees • What would a reasonable employee
expect to constitute his or her privileges in the specific circumstances of that employer • Notably, where there is
a pattern of 'contracting out', this would fall within 'reasonable expectations' • Also reasonable for employees to
expect an employer to respond to a significant downturn in business with layoffs • However, these layoffs must
be in proportion to severity of economic downturn • However, economic downturn would not give rise to
reasonable expectation that work would continue to be performed for the employer's benefit but through
contracting out instead • Thus, layoffs do not violate statutory freeze in this case, but contracting out does.
PURPOSIVE TEST- only applies to negotiation freezes! *other two apply two apply to both
OPSEU v. Royal Ottawa Health Care Group (1999) OLRB
Employer purported to scale back benefits during bargaining stage in response to budgetary pressures •
Purposive test • Where freeze is in bargaining stage, provisions must be read in light of need to facilitate
constructive bargaining bolster, reinforce the status of the union as bargaining agent, and provide a firm (if
temporary) starting point for collective bargaining (setting goal posts) • Key to look at nature of the proposed
change - is it collective (i.e. something that would normally be bargained for) or individual in nature? If
individual then it will likely not breach freeze provision • Here, employer would fail under all three tests
anyway
Criticizes the other two tests- says the purposive test is the best one- Is the proposed changed a broadly based on
which threatens the employees as a collectivity? If so, then if it is the kind of thing that would normally be
bargained about, then it likely violates the freeze provision. If it is more about something intrinsic to an
individual employee’s situation, then it will not be found to be a breach.
SOLICITATION ON EMPLOYER PROPERTY
• This is all about competing interests.
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.
No one (union or employer) is allowed to solicit about union during working hours.
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Canada Post Corporation (1995) CIRB
Union members sought to solicit at other CPC locations during designated non-working hours, but such activity
was barred by CPC policy, employer cites postal security concerns • Membership solicitation not contrary to
the Code should not be restricted other than for "compelling and justifiable business reasons" • These may
include negative customer reaction, safety, security, or other business concerns • Here, employees from other
locations could not be said to be strangers and therefore their access for the purpose of organizing could not be
restricted.
Employer violated s. 70 – Balanced freedom to associate with employer’s right to engage in business found
there was no valid business purpose, security concerns not significant.
What does working hours mean? Adam Mine case- only applies to the time that an employee is supposed to
be doing their work function-does not apply before shift, during breaks or after working time- even if employee
is paid during that time.
Cadillac Fairview Corporation v. RWDSU (1989) OCA
Eaton Centre mall purported to prohibit solicitation by Eaton's employees outside working hours according to
blanket no-solicitation policy • As Cadillac Fairview had no legitimate business interest in prohibiting
solicitation outside work hours, it was found to have committed ULP.
Adams Mine (1983) OLRB
Posting NDP flyers too remote from union activities to engage protections.- not a ULP.
UNION-SIDE UNFAIR LABOUR PRACTICES
Unions not to interfere with employers’ organizations
71. 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
employers’ organization.
No interference with bargaining rights
73. (2) No trade union or person acting on behalf of a trade union 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.
s. 76 No intimidation or coercion to persuade or dissuade someone from union or rights under act.
s. 77 – no Persuasion during working hours
Milnet Mines (1953) OLRB
Threats of violence led OLRB to dismiss application.
Canadian Fabricated Products (1954) OLRB
Same thing - economic coercion (threats of economic reprisal if did not support)- violation of s. 76.
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ULPS- LAWYER’S PROFESSIONAL RESPONSIBILITY
LSUC v. Rovet (1992) LSDD
Facts: Company A becomes aware that union organizing is taking place in its workplace. Solicitor tells them
about Company D that provides employee that are anti-union on a temporary basis until the union drive is over.
Bring up the number and bring down the percentage of positive votes.
At date application A and D had not yet solidified this contact. Solicitor back dates contact and forges
correspondence. More correspondence forged when contact changed. Solicitor made statements he knew were
false. Charged personal expenses to clients account.
Rovet given a one year suspension.
Where strategy and legal advice overlap. See were strategy becomes illegal and should be aware of what you
need to do as a lawyer.
Majority was most concern with financial fraud whereas the dissent focuses on the 5 other allegations.
Look at what type of misconduct that law society is interested in pursuing.
REMEDIES FOR ULPS UNDER OLRA
• OLRA s. 96(4)(a)-(c) - (a) is a cease and desist order; (c) Reinstate; (b) Get creative “rectify acts”
• OLRA s. 98 -interim remedies
• OLRA s. 11 - remedial certification
• OLRA ss. 104-7,9 - penalties
• OLRA s. 108 - Referral to Superior Court
• Principle of ULP remedies is that they are restorative (restore parties to position that they would have been in
if it had not occurred). They must promote purposes of legislation. Cannot be punitive, but must deter.
National Bank of Canada v. Retail Clerks International (1984) SCC
Employer closes branch during narrow statutory freeze window, CLRB finds ULP and orders remedies
including a trust fund set up in amount employer said to have saved, as well as letter to all employees stating
that employer supports union • Remedy ordered by Board must be compensatory and not punitive in nature i.e. must be linked to ULP's consequences. Must be relationship between the wrongdoing, the harm done and
the remedy. In application one must look to the type of harm that is done and what its impact is- then one must
look to tailor an appropriate remedy which will address the harm.
Remedies which were fine:
-board ordered the employer to give the union a list of employees
-allowed union to hold meetings at work during working ours
-installing a bulletin board
-employer must pay cost
Remedies which were Challenged:
-letter to all employees saying that it had violated their labour rights and that employees had a right to
unionize
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-ordered to deposit $144,000 into a trust fund - used, subject to the board’s approval, to promote the
Canada Labor Board's purposes among all the bank's employees - this amount was what the bank saved
by closing branch
The remedies that can be ordered are found in s. 96(4) –
(a) = cease and desist - must stop doing the acts complained of
(b) = order directing to rectify the act or acts complained about - the kitchen sink approach - board has lots of
discretion - can order meetings, postings, mailed statement, - generally called "communication" or "access"
orders - can use your imagination - guidance: does it answer the harm that is done and is there a sufficient nexus
(c ) board can order reinstatement of employee with or without back pay, or compensation of earnings
Baron Metal Industries- hired employees (Tamil gang members) to threaten other employees
Provides a list of possible remedies – case was decided when remedial certification was not an option
Board’s Remedies:
1) board came up with a declaration - simply a statement by the board that X conduct violates the
act
2) ordered a cease and desist order
3) another certification vote
4) employer had to post a board provided notice setting out the board's decision and the employee's
rights
5) ordered that the employer create mandatory meetings for the union and the employees
6) also had to provide a list of employees in the unit and say who was hired since first vote
7) give the union an office in the workplace
8) allow union reps to hold one on one meetings
9) allow pamphleting
10) reimburse union organizing costs - organizing costs are very very rarely given - board was
trying to be creative with its remedies - largely drawn from the 96(4)(b) general authority to
provide remedies
S.98 INTERIM REMEDIES
• Litigation of ULPs may take a long time, during which the desired results may be achieved effectively and
irreparably. To prevent this, the Board can order interim remedial relief. See OLRA s. 98.
Board power re interim orders
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.
40
(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.
(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.
(4) Despite subsection 96 (5), in an application under this section, the burden of proof lies on the applicant.
SUM: Section 98(1)(a) – Board can make interim order regarding procedural orders.
Section 98(1) (b and c) – can reinstate or make order over respecting terms and conditions of employment
IF s. 98(2) – circumstances occurred during organizing, there is serious issue in the pending proceeding, interin
necessary to prevent irreparable harm, balance of harm favours granting relief pending decision.
98 (3) has to be related to rights under act
98 (4) –burden lies with applicant.
Teamsters v. Patrolman Security Services (2005) OLRB (s.98(3) part of test for interim reinstatement)
Security guards known to management as union organizers fired, one for stopping by another site on way to
assigned site, another for sleeping • Interim relief analysis involves four criteria listed in s. 98(2) plus
"appearance" of causal relationship under s. 98(3) • Perception that union ineffectual at protecting workers
would cause irreparable harm as under s. 98(2)3. • Meanwhile, timing, employer's knowledge, and past practice
indicate causal relationship as under s. 98(3).
REMEDIAL CERTIFICATION
• Under OLRA s. 11, the Board can now also order remedial certification. Considered a last resort because it
denies employees the ability to express their preferences through a vote. Only appropriate where the ULP has
contaminated the situation that a vote will not accurately reflect the wishes of the employees.
Remedy if contravention by employer, etc.
11. (1) 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.
(2) In the circumstances described in subsection (1), on the application of the trade union, the Board may,
41
(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.
Considerations
(4) 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.
Remedy of contravention by trade union, etc.
11.1 (1) Subsection (2) applies where a trade union, council of trade unions or person acting on behalf of a trade union or
council of trade unions contravenes this Act and, as a result, the true wishes of the employees in the bargaining unit were not likely
reflected in a representation vote.
(2) In the circumstances described in subsection (1), on the application of an interested person, the Board may, despite
subsection 10 (1),
(a) 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
(b) dismiss the application for certification if no other remedy would be sufficient to counter the effects of the
contravention.
Labourers International v. East Elgin Concrete (2007) OLRB- s.11 and communication.
Employer verbally threatens union organizer on phone, then at (captive audience) employee meeting offers
money to any employee who would punch a union organizer, then proceeds to raise prospect of loss of work
(and therefore job security) • Under s. 11, remedial certification may be ordered if (1) it is likely that workers'
wishes were not accurately reflected in representation vote because of ULP (s. 11(1)(a)) and (2) if no other
remedy would be sufficient (s. 11(2)(c)) • Board has generally granted remedial certification where (1) job
security is threatened; or (2) confidence in the rule of law is undermined.
Note: when multiple ULPs, the board will look to the combined effect, which can be more substantial.
FINANCIAL PENALTIES
104. (1) 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
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(b) if a corporation, trade union, council of trade unions or employers’ organization, to a fine of not more than
$25,000.
Continued offences
(2) Each day that a person, trade union, council of trade unions or employers’ organization contravenes any
provision of this Act or of any decision, determination, interim order, order, direction, declaration or ruling
made under this Act constitutes a separate offence.
Disposition of fines
(3) 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.
108. 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.
Consent
109. (1) No prosecution for an offence under this Act shall be instituted except with the consent in writing of
the Board.
Difficulties
S. 109- to prosecute for offences, you need to get consent of the board
S. 104(3) - fines are paid to the government, not the union- disincentive on union to file but can penalize the
employer quite a bit.
SUPERIOR COURT OF JUSTICE & CRIMINAL LAW
• Under s. 108, proceedings to enforce an order of the Board may be undertaken in the Superior Court:
UFCW v. Rainy Lake Hotel (2005) Ont. SCJ
Employer persistently and cavalierly refuses to remit union dues to union, union brings application for order
holding employer in contempt of court • Employer can be held in civil contempt for refusing to comply with CA
• Incarceration a last resort.
[53]
[54]
In arriving at a fit and just sentence in this case I have considered the following:
(a)
The available sentences;
(b)
The proportionality of the sentence to the degree of wrongdoing;
(c)
The presence of mitigating and aggravating factors
(d)
The principles of specific and general deterrence;
(e)
The reasonableness and justification of incarceration;
(f)
The ability to pay a fine.
In cases involving civil contempt a court may:
(a)
impose no sentence;
43
(b)
(c)
impose a suspended sentence conditional upon some act or event occurring;
incarcerate the offender.
• Finally, the criminal law is sometimes, but rarely, invoked against employers who engage in anti-union
activity:
R. v. K-Mart Canada Ltd. (1982) OCA
Employer delays certification vote by falsely representing that workforce would be increased, then hires
associates of consulting firm to pose as bona fide workers for purposes of undermining union organizing •
Accused fined 125,000 CAD for conspiring to commit unlawful activity.
NEGOTIATION
OLRA ss. 16-44, 59-60, 78-80, 86 - Timelines (pp. 391-393) - Bargaining Freeze (pp.393-4)- Duty to bargain in
good faith (pp.394-416).
Certification sets the stage for the collective bargaining process. It entitles the union to serve a notice to bargain
on the employer, or vice versa. This triggers the start of the statutory duty to bargain in good faith. This duty
continues until the parties reach a CA, and continues through a strike or lockout. However, the content of the
duty changes significantly during this time - if an impasse is reached a party may break off negotiations. Once a
CA is reached, the duty to bargain is suspended until it is time to negotiate a new agreement.
Now, with BCHS, there is, in certain circumstances, a constitutional duty to negotiate in good faith. We do not
yet have case law directing us as to the meaning/content of this duty.
Privity: Employees do not have privity of contact. Union is the sole representative agent for the employees in
the bargaining unit. Employer must negotiate with the certified union and not employees or other union.
Process Orientation of Labour Board: Board does not have content/outcome orientation. Parties may not
come to an agreement and this is a legitimate outcome. The Board just oversees the process. Seen to be more
stable outcome, if parties have negotiated on their without board interference.
BCHS and process: 2(d) protection is procedural not substantive- but can be very hard to disentangle process
from substance. Hard to discern surface bargaining from good faith bargaining.
DUTY TO BARGAIN IN GOOD FAITH
• OLRA s. 17 - note objective and subjective standards
Notice of desire to bargain
16. Following certification or the voluntary recognition by the employer of the trade union as bargaining agent
for the employees in the bargaining unit, the trade union shall give the employer written notice of its desire to
bargain with a view to making a collective agreement.
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Note: s. 59 if it is a renewal agreement.
Notice of desire to bargain for new collective agreement
59. (1) Either party to a collective agreement may, within the period of 90 days before the agreement ceases to
operate, give notice in writing to the other party of its desire to bargain with a view to the renewal, with or
without modifications, of the agreement then in operation or to the making of a new agreement.
(2) A notice given by a party to a collective agreement in accordance with provisions in the agreement relating
to its termination or renewal shall be deemed to comply with subsection (1).
Obligation to bargain
17. 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.
Note: Three parts to s. 17
1) Meet within 15 days of notice
2) Make every reasonable effort
3) Bargain in good faith
Content of the Duty
Meet – Includes duty to meet, if party refuses to meet will be in breach of duty (Graphic)
Full discussion- to refuse to discuss relevant issues, to refuse to provide rationales for positions, may be a
breach of duty (Noranda)
Duty to Disclose- cannot withhold relevant information to collective bargaining, without reasonable grounds
(CAIMAW)
Timing- all issues put on the table at the outset- cannot bring a new issue which are deal breakers at the end of
the discussion (Graphic)
Context- Radio shack, Royal Oak- Unacceptable/Impossible demands- so far out of line that you could not
expect a party to accept (Royal Oak- Court found demand is one the no union could accept)
Archibald Cox “The Duty to Bargain in Good Faith” (1958)
Purposes of the Duty to Bargain
1) Reduces number of strikes
2) Create balance of power between employees and employers
3) Promoting Collective, rather than individual, bargaining
4) Each side obtains a better understanding of industry
-but only first two are written into the Wager Act.
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IMPORTANCE OF DUTY
United Electrical, … v. DeVilbiss (Canada) Ltd. (1976) OLRB
Duty to bargain in good faith has two purposes - reinforce obligation of employer to recognize bargaining agent,
and foster rational, informed discussion thereby minimizing potential for "unnecessary" industrial conflict.
Without the duty, the entire purpose of labour relations system could be frusterated- employees do not receive
benefit of certification/negotiations until actual agreement is reached.
TIMING
Graphic Arts International Union v. Graphic Centre (Ontario) Inc. (1976) OLRB
Employer's offer accepted by vote, union files grievance in middle of negotiations, employer then refuses to sign
own offer and makes sixteen new demands • S. 17 requires that parties act in such a way as to foster rather than
undermine the decision-making capability of the parties • A party that holds back on items and then attempts to
introduce them into negotiations as the process nears completion breaches this requirement.
INCLUDES DUTY TO DISCLOSE
CAIMAW v. Noranda Metal Industries (1975) BCLRB
Employer cited cost of proposed benefits as obstacle to settlement, but refused to disclose such data despite
indications that there would be fruitful discussion of this issue. Sent letters to employees regarding the benefits
issue • Under these and possibly other circumstances, party may not withhold information relevant to collective
bargaining without reasonable grounds • Key that employer had made it an issue.
Proposals that cannot legally be included in a CA
- such as proposal that violates employment standards legislation - are a clear breach of the duty to bargain
• Proposals that affect the parameters of the collective bargaining relationship - such as to modify the size of a
bargaining unit - cannot be pressed to an impasse (i.e. cannot threaten strike/lockout over them)
• Through jurisprudence, labour boards have developed other restrictions:
SURFACE BARGAINING vs. HARD BARGAINING
United Steelworkers of America v. Radio Shack (1980) OLRB
After committing extensive ULPs during organizing, employer during negotiations sends memoranda to
employees ridiculing unions' demands, makes absurd demands of its own, later during strike it photographs
workers on picket line, falsely told them a decertification application was being prepared, and demeaned them
in an in-house publication. Proposal also contained provisions that problematic –relationship clause &
Automatic termination provision with vague elements • Given background context of history of bad faith
bargaining, Board is entitled to detailed explanation of remaining issues • Difference between "surface
bargaining" - going through the motions of bargaining without intent of concluding CA - and "hard bargaining,"
taking firm positions unacceptable - even predictably so - to the other side • Inference of surface bargaining can
only be drawn from totality of evidence, including adoption of inflexible positions on issues central to
negotiations • Ultimate indicator is intention.
• Board looks at nature of relationship and sees if there has been misconduct in context of certification, and if
this has carried over into bargaining
• Misconduct in (1) Communications, (2) Content of proposals; (3) Conduct of negotiations
Here final decision makers were the same as throughout background context of misconduct, this creates an onus
on employer to show they have had a change in heart. ALSO, when you have a problematic negotiation issue,
section 70, 72, and 76 can also be engaged.
46
Canada Trustco (1984) OLRB
Employer bank was willing to offer only minor improvements compared to non-unionized branches • Hard
bargaining is pursuit of own self-interest and legitimate business objectives • Party whose strength in bargaining
position allows it to virtually dictate terms of agreement does not bargain in bad faith. There was no historical
taint in this case as there was in Radio Shack.
Brian Langille- difficult to tell when surface and when hard bargain. Basically gives a pass to any employer that
can establish they are acting in self-interest. Almost any tactic can be justified in this way.
Royal Oak Mines v. Canada (Labour Relations Board) (1996) SCC
Violent 18-month strike in Yellowknife, bomb with nine strikebreaker deaths, employer refuses to negotiate until
issue of reinstatement and discipline of employees accused of picket line violence resolved • Both parties must
(1) bargain in good faith (subjective standard); and (2) make every reasonable effort to conclude CA (objective
standard) • Thus, refusal to include standard terms acceptable and included in other CAs throughout the country
may breach objective standard of "reasonable effort" • Here refusal to negotiate grievance arbitration clause led
to finding of bad faith bargaining, same result may have been reached over just cause for dismissal clause or
refusal to negotiate about pensions.
Putting forth demands that the other side could not reasonably be expected to accept is a breach of duty to make
reasonable efforts. – such as imposing probationary period on returning strikers, and refusing to grieve any
discipline against employees who had done certain things during the strike.
REMEDY- Required employer to retable an early offer, except for four issues it had changed its mind on.
RARE- unlikely to see this remedy anywhere else, based on long history of this case.
DUTY TO DISCLOSE
Westinghouse Canada Ltd. (1980) OLRB
Employer plans to move operations from highly-unionized region to less-unionized region, does not disclose
such plans until after negotiations are complete • Duty to bargain places obligation on employer to respond
honestly to union inquiries as to plans that may have a significant impact on the bargaining unit, but does not
give rise to a duty to reveal such plans on its own initiative - at least if they have not ripened into final decisions
Board agreed it was ULP, because of anti-union animus, but did not agree failure to disclose.
Westinghouse test- Duty on employer to respond honestly to questions put by the union, but employers are not
obligated to reveal plans that are not yet de facto decisions.
Two parts:
1) Answer questions honestly
2) Positive obligation to disclose substantial decisions.
Sunnycrest Nursing Homes (1982) OLRB
However, duty to bargain violated where it is clear that decision to contract out a substantial portion of the
bargaining unit's work had been made before or during negotiations.
Langille/Mac Neil: But is decision in Westinghouse assuming that union should have no role to play in
decision making process? Also, should not parties bargain from positions where they can understand each
other's goals and limitations?
International Woodworkers v. Consolidated Bathurst Packaging Ltd. (1982) OLRB
Plant closes shortly after conclusion of collective agreement • Unsolicited disclosure rule would have the
potential to compromise strategic competitive confidentiality • However, where announcement of significant
47
decision occurs shortly after conclusion of negotiations, rebuttable presumption may be made that this decision
was sufficiently finalized during negotiations to warrant disclosure • Unsolicited disclosure rule covers "de
facto" decisions, which may include "highly probably decisions" or "effective recommendations."
Also extended the duty to disclose to the entire life of the collective agreement?
Remedy awarded was monetary damages to compensate for the loss of opportunity to negotiate.
REMEDIES FOR BREACH OF DUTY
United Steelworkers of America v. Radio Shack (1980) OLRB
After committing extensive ULPs during organizing, employer during negotiations sends memoranda to
employees ridiculing unions' demands, makes absurd demands of its own, later during strike it photographs
workers on picket line, falsely told them a decertification application was being prepared, and demeaned them
in an in-house publication • Remedy should not be seen as a penalty • Cannot impose CA as remedy • Here,
Board relied instead on cease-and-desist orders, orders to bargain in good faith, orders to publish
retractions, and orders of costs.
• Critics, however, argue that such remedies are insufficient and that there is a need for substantive regulation of
bargaining proposals on a standard of reasonableness.
Note on remedies: Labour board cannot make orders which are punitive- remedial awards must be restorative
and compensative in nature. Must be nexus between wrong done, harm caused and remedy awarded (National
Bank)
Royal Oak Mines v. Canada (Labour Relations Board) (1996) SCC
Violent 18-month strike in Yellowknife, bomb with nine strikebreaker deaths, employer refuses to negotiate until
issue of reinstatement and discipline of employees accused of picket line violence resolved • Board remedy
forces employer to table previous offer, which union was prepared to accept, and imposes other remedial terms
• Remedy ordered by Board may be set aside on four grounds: (1) Punitive; (2) Violates Charter; (3) No rational
connection to breach and its consequences (National Bank rule); (4) Inconsistent with purpose of legislation
• Order to table last offer rationally connected to breach's consequences that no collective agreement could ever
be reached (not equivalent to ordering CA, but ordering to retable certain offers, can impose certain terms of
and conditions• Free collective bargaining a cornerstone of Canadian labour legislation, but this not infringed in
view of circumstances - bitterness of dispute and fact that offer had been acceptable at one point • In summary,
extraordinary remedies but also extraordinary circumstances.
Buhler Versatile Inc. (2001) MLB
In wake of four-month strike, Board orders back pay resulting in millions of dollars in damages - making it one
of the largest awards ever.
Breach of duty to disclose- possible monetary damages (like Consolidated Bathurst) – likely depends on when
the breach of the duty occurs.
Labour Boards have two broad types of remedies:
1. Non-Compensatory- declarations, cease and desist
2. Compensatory- monetary awards, reinstatement
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FIRST CONTRACT ARBITRATION
Most Canadian jurisdictions make some provision for interest arbitration if the parties do not reach a settlement
in negotiations for the first collective agreement after certification.
Conciliation Process
Before you ask for first contract arbitration, have to go through conciliation process. This is so that the parties
have the greatest possible opportunity to negotiate an agreement on their own.
Appointment of conciliation officer
18. (1) Where notice has been given under section 16 or 59, the Minister, upon the request of either party, shall appoint a conciliation
officer to confer with the parties and endeavour to effect a collective agreement.
Section 18 - either party must ask for the MoL to appoint a conciliator - then, the conciliator reports to the
conciliator about the chances of settling the dispute - the report is often made public - try to shame unreasonable
parties into settling - if it does not settle at this point, the minister may either establish a conciliation board, or, if
conciliation does not seem like the right way to go, then either party can apply for first contract arbitration
First agreement arbitration
43. (1) 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 party may
apply to the Board to direct the settlement of a first collective agreement by arbitration.
Duty of Board
(2) 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.
Note time restrictions
-the Board may well decide that arbitration is not the route - but if they decide that it is appropriate, then the
parties can either decide to get an arbitrator, or the board will do the arbitration itself - the MoL can also appoint
a mediator-an arbitrator's decision is final - same effect as a superior court decision - -often, arbitrators will start
out acting as a mediator - will try to mediate a settlement - if that does not work, they will ask the parties if they
are okay with the same party continuing as arbitrator - could have disclosed confidential information that they
do not want considered
REQUIREMENTS FOR THE ARBITRATORS DECISION: from s. 42 and 43
-
requires a two year term
section 16 imposes a freeze
it imposes time limits on when the arbitrator must start (21 days within notice to board- s. 43 (4)(a) - also
when it must be issued 45 days after start of hearing s.43(4)(b)
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In Canada we have a tension between trying to preserve free collective bargaining and the fact that we do not
want to condone bargaining that not with objective of ratifying an agreement. First Contract Arbitration tries to
preserve free collective bargaining. Rarely used in Canada, in 2006/7 only 7 applications and 6 withdrawn.
Important role but not necessarily used.
Although first contact arbitration is structurally different across provincial jurisdiction, there is a common
philosophical approach taken, which is reflected in:
Yarrow Lodge Ltd. et al. v. Hospital Employees' Union et al. (1993) BCLRB
Principles of first contract arbitration: (1) Remedy designed to address breakdown in negotiations, not
ULPs; (2) Process of collective bargaining itself is to be encouraged as means to achieve first CA; (3) Mediators
should be assigned early into first CA; (4) Timing should not be at end of process where relationship has broken
down and is irreparable, but after mediator has identified "stumbling blocks" in dispute and what is needed to
avoid irreparable breakdown in relationship • Factors to consider in whether to impose CA: (1) Bad faith or
surface bargaining; (2) Conduct of employer demonstrating refusal to recognize union; (3) Party adopting
uncompromising bargaining position without reasonable justification; (4) Party failing to make reasonable
efforts to conclude CA; (5) Unrealistic demands or expectations arising from either intentional conduct or
inexperience; (6) Bitter and protracted dispute rendering it unlikely that the parties will be able to reach
settlement • Factors in determining terms of CA: (1) First CA should not contain breakthrough or innovative
clauses, should be industry standard; (2) Objective criteria such as comparable terms and conditions paid to
similar employees; (3) Internal consistency and equity among employees; (4) Financial state of the employer
(ability to pay); (5) Economic and market conditions of the sector or industry in which the employer competes.
STRIKES AND LOCKOUTS
Policy Perspectives
• Goal is to exert economic pressure
 economists say that strikes and lockouts also have information gathering function by providing
heavy costs to other side, gain a sense of what true bargaining position is.
 Provide a way for pent up conflict to be expressed- studies show that in sectors where work
stoppages are illegal, it’s like squeezing a balloon it will bulge out in other ways ie. Workplace
complaints and grievances- sometimes better to deal with conflict upfront and resolve.
• Promoting industrial peace vs. detrimental effects of work stoppages
• Some analysts argue that legislatures should ban strikes in favour of interest arbitration
• This would not only eliminate disruption but also lead to outcomes based on justice rather than on sheer
economic power
Weiler
• However, right to force work stoppage is fundamental element of our model of industrial relations
• Fosters freedom of contract by fostering the right to disagree
• Impetus for negotiations is threat of economic harm through strike/lockout
• Therefore, right to strike justified not on its intrinsic value, but because of its instrumental role the larger
system
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*debate over the methods used to measure work stoppages because can distort data.
Generally, over the last 15 years the number of strikes have gone down, but the length of the individual strikes
has gone up (days lost is length of strike times number of workers)
STATUTORY REQUIREMENTS
• Strikes can only occur as a result of negotiation disputes - NOT to force employer to recognize union (because
now has certification system), engage in bargaining, or enforce an interpretation of CA (use grievances).
- Rationale: encouraging negotiations and discouraging work stoppages, does not ban strikes entirely, except
in certain areas of the public sector.
• One exception, contained in CLC ss. 51-55, imposes duty to give advance notice of technological change
during life of CA. Duty to bargain then arises over such matters, and such bargaining can eventually result in
work stoppage.
MAIN QUESTION: Are they in a legal strike position?
Provision against strikes and lock-outs
46. Every collective agreement shall be deemed to provide that there will be no strikes or lock-outs so long as the agreement
continues to operate.
Strike or lock-out
79. (1) 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.
Intimidation and coercion
76. 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. (Section 76 prohibits threatening
an unlawful strike)
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Unlawful strike
81. 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.
Unlawful lock-out
82. 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.
Causing unlawful strikes, lock-outs
83. (1) 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.
Application of subs. (1)
(2) Subsection (1) does not apply to any act done in connection with a lawful strike or lawful lock-out.
Saving
84. 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.
Section 46: Every CA shall be deemed to provide that there shall be no strikes or lockouts if CA is in force.
Section 79(1): Where a CA is in operation, no employee bound by the CA shall strike and no employer bound
by the CA shall lock out such an employee.
- These are parallel sections – if you strike during the CA term, you will breach both a term of CA (s.46) and
s.79(1) of OLRA
Section 81 & 82: Prohibition on doing anything whatsoever to encourage strikes or lockout during CA
s. 83(1) - Causing unlawful strikes/lockouts - extended to any person
s. 84 - Saving
Section 48: Also provides that there be another provision in every CA providing an arbitration mechanism to
settle mid-term dispute. S. 48(2) says that if you forget to put the provision in, then the Act imports it in.
I.
Actions Constituting a Strike
s. 1 (1) “strike” includes a cessation of work, a 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;
Thus must have the following three factors to be a strike:
 Cessation of work, a refusal to work or to continue to work by employees, slow-down or
other activity
 In concert or in accordance with common understanding
 objective of limiting output.
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LIMITING OUTPUT
Graham Cable (1987) CLRB
Issue: At what point is a work stoppage simply a collection of individual decisions and at what point does it
meet the collective aspect of the definition.
Facts: Were in a lawful strike position. If not strike than can be disciplined for actions under s.183 of CLC,
which is equivalent to our s. 72.
Union strategically engages in work-to-rule tactics instead of strike, employer subsequently takes disciplinary
action against certain employees • Question was whether these constituted 'strike activities' protected by antiULP law • Strike activities defined broadly and can include refusing to cross legal picket line, concerted
refusals to work voluntary overtime, concerted refusals to accept voluntary assignments, accepting letters with
10-cent stamps, and other forms of work-to-rule such as this. However, employer is not powerless, can lock
employees out and use replacements (problematic reasoning).
CUPW v. Canada Post Corporation (1992) CLRB
Same situation as above, employer refuses to allow employees who had participated in action to work the next
day • Although in one instance only employees who had engaged in strike activity were denied entry to
workplace, this was ruled a rotating defensive lockout rather than a disciplinary action.
OSSTF v. Grand Erie District School Board (1999) OLRB
Ontario teachers launch work-to-rule campaign refusing to perform duties required by statute, employer sends
letter threatening legal action • Objective is clearly to "limit output," and thus it falls within the range of
protected activities, whether or not they are statutorily required • However, no ULP because employer is
entitled to express opinion that a certain activity is illegal.
CONCERTED ACTIVITY
Saskatchewan Wheat Pool (1994) CLRB- not in lawful strike position.
Employer alleged concerted refusal to work voluntary overtime following temporary layoff of ten
employees • No direct evidence that refusal was orchestrated by union, but circumstantial evidence - fact
that normally enough workers would have been found plus previous indication by the union that it was
opposed to resorting to overtime when layoffs were in effect - sufficed to establish concerted activity •
Even actions which are acceptable by individual employees may constitute an unlawful strike when done
in concert. Board willing to make inferences based on contextual analysis.
CBC v. Canadian Media Guild (1999) CIRB
During legal strike by another bargaining unit, respondent union told members that it could not direct
them to cross picket line and that such was their personal choice, but expressed that it would back any
member who was disciplined for this refusal and reminded them they could soon find themselves in the
same situation as the other unit • Noting that union's memos sent mixed messages, Board found
concerted activity.
SYMPATHETIC ACTION
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Questions: Does refusing to cross picket line when other workers on strike constitute a strike? Is it illegal? Or is
it just individual activity and therefore not illegal? Note: many union constitutions contain a provision that
request workers do not cross other picket lines.
Nelson Crushed Stone v. Martin (1978) OLRB
Members of one union were permitted under CA to refuse to cross picket line of another union • Parties
cannot contract out of Labour Relations Act • Strike activity that is illegal remains illegal • However, such
clauses may limit exposure of employees to disciplinary action on part of employer.
International Longshoremen v. Maritime Employers (1979) SCC
Members of three Locals refused to cross a picket line • Definition of strike is objective, main elements
are a cessation of work with a common understanding • Ulterior purpose therefore is irrelevant.
Progistix-Solutions v. CEP (1999) OLRB
Members pausing for five minutes at another union's picket line ruled unlawful strike as it caused some
employees to be late.
POLITICAL STRIKES/PROTEST
Historically there was a subjective purpose to the definition of strike. Look at why the strike was happening.
More recent legislation applies objective standard.
General Motors (OLRB 1996)
Facts: Protesting labour law policies of the Harris Gov’t- argued it was a political protest and thus protected by
2(b) freedom of expression and 2(d) association.
Board: Although it constitutes expression, the prohibition on strikes during term of a collective agreement could
be justified by section 1. Slinn: They many have come to a different decision if this had been post-BCHS.
Note: GM case was unusual because not just public sector employees who went out on strike.
LOCKOUTS
• Generally, same timeliness restrictions which are imposed on strikes are imposed on lockouts. In other
words, a lockout is timely whenever the employees can legally strike. However, the definition of what
constitutes a lock-out is narrower because it have a purposive element.
s. 1 (1) “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 any 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;
Westroc Industries Ltd. v. United Cement, Lime, and Gypsum… (1981) OLRB
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Employer concluded that union was deliberately prolonging discussions in order to conduct simultaneous
strikes in other locations, locked out employees and hired replacements • A timely lock out can be part of
the bargaining process. Lockout to pressure employees into agreement is lawful intent, lockout to compel
them to refrain from exercising rights is unlawful intent • Permanent replacement of an employee does not
constitute a lockout, but temporary replacement OK.
**PROCESS TIMELINE
Road to strike or lockout
1. Certification
2. Notice to Bargain:
Notice to bargain given under s. 16, if new or voluntary recognition or s.59 if it is expiring contract
 If expiring, must be given within 90 days of CA expire date.
 S.17 – give 15 days or agreed date to meet and to start bargaining once notice given.
 Depending on when notice to bargain is given, this could be before or after CA expires.
3. Negotiations – s. 86(1) freeze applies after the notice is given.
4. Settlement?
a. If they settle, there has to be a ratification vote- must take the proposed agreement to the
union – need half of the ballots casts- section 79.1(1) and (2) also places specifications on what
the ballot must say and its says the question on ballot should be limited to ratifying or not
ratifying (nothing about striking)
b. If things do not go well, and reach an impasse, then we have three options
i. If it is a renewal agreement, the parties can at any time ask for interest arbitration.
Once that happens, then there is a ban on strikes and lockouts (s. 40)
ii. Parties can opt for mediation- has to be at the joint request of the parties. The mediator
will issue a report to the minister – restrictions on when parties can strike or lockout after
choosing this option (can be no strike or lock-out until either seven days after the
conciliation or mediation report or fourteen days after the minister decides no conciliation
board.)
iii. Parties can opt for conciliation- Minister can decide whether or not to appoint a
conciliation board (can be no strike or lockout until either seven days after the
conciliation or mediation report or fourteen days after then Minister decides no
conciliation board.
Note: before parties are allowed to strike or lockout, they must just over one of these hurdles- either mediation,
conciliation or interest arbitration.
5. Strike Vote – governed by s. 79(3) – provides that the vote can be held up to thirty days before expiry of
the CA or any time after expiry- often unions have the vote early so that they “have it in hand” –good
chip to play- shows that the union has support for a strike.
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Timeliness – If all these steps are met, then the strike would be timely- timeliness = all of the little
procedural steps have been met- if it is not “timely”, then it is an illegal strike.
LEGAL FORUMS REGULATING INDUSTRIAL CONFLICT
• Although administration of statutory industrial relations scheme is generally the domain of labour
relations boards, this is not true with respect to strikes and lockouts, where courts, labour relations boards,
and grievance arbitrators all have a role.
• For example, common law tort doctrines have been used to regulate strikes and picketing
• Additionally, grievance arbitration proceedings may arise out of a no-strike or similar clause in a CA
Labour Arbitration Boards are given authority under parts of the OLRA
1) Interest Arbitration: what are the terms and conditions of the CA going to be, with renewal contract,
interest arbitration can be accessed- settling outside terms and conditions. It is a hearing, parties make
submissions, and arbitrator makes decision that can be filed in court and enforced as superior court order.
2) Grievance Arbitration: where arbitrator addresses the interpretation of the CA- because of s. 48(1),
must include provisions on grievance arbitration- will set out process whereby the employer and the
union will try to settle disputes. These can include disputes about discipline or termination of employees
OR disputes about how particular provisions of the CA are to be interpreted.
LABOUR RELATIONS BOARDS
Questions which get put before the Board
1. Is it a strike or a lockout? Does it meet the s.1 definition?
2. Is it a legal strike or lockout? Has it passed the Act’s hurdles?
3. Whether or not the action is a ULP? Has a party induced illegal strike or lockout?
4. Lockout? Purposive element- if it is done for the wrong purpose it can still be a ULP
5. ULP- has the employer disciplined employees who are on strike or lockout, does that breach the ss. 72,
70, and 76 ULP provisions
6. If some has breached the Act/ Committed a ULP, how should that breach be remedied?
• Boards have statutory duty to determine if there is strike or lockout, and whether it is legal
• Traditional remedy is declaratory relief - these actually proved reasonably effective
• However, see broad remedial jurisdiction now conferred by OLRA s. 100.
Declaration and direction by Board in respect of unlawful lock-out (basically cease and desist order)
101. Where, on the complaint of a union or employer, the Board is satisfied that an employer called or
authorized or threatened to call or authorize an unlawful lock-out or locked out employees or that an agent of an
employer counselled or procured or supported or encouraged an unlawful lock-out or threatened an unlawful
lock-out, the Board may so declare and, in addition, in its discretion, it may direct what action if any a person,
employee, employer, trade union shall do or refrain from doing with respect to the unlawful lock-out or the
threat of an unlawful lock-out.
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Filing in court- (Direction can be filed at Court)
102. 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.
Claim for damages after unlawful strike or lock-out where no collective agreement
103. (1) Where the Board declares that a trade union has called or authorized an unlawful strike or that an
employer has called or authorized an unlawful lock-out and no collective agreement is in operation between the
trade union and the employer, the trade union or employer may, within 15 days of the release of the Board’s
declaration, but not thereafter, notify the employer or trade union, in writing of its intention to claim damages
for the unlawful strike or lock-out, and the notice shall contain the name of its appointee to an arbitration board.
National Harbours Board v. Syndicat national des employes… (1979) CLRB
Union calls two one-day work stoppages at Port of Montreal while conciliation commissioner was
attempting to bring about new CA • Even if work stoppage is found unlawful, cease-and-desist order
does not automatically issue - Board has large discretion • Depends rather on consideration of higher
interests - the promotion of healthy and orderly labour relations • Must identify cause to determine
remedy • Here, it was determined that union was trying to exert pressure outside the legal avenues it had
to do so, which are set by the legislature according to policy • Thus, order issued.
THE COURTS
a.
Criminal Jurisdiction
• Basic CCC prohibitions against assault, mischief, and other forms of trespass to persons and property
may be violated by conduct engaged in during a labour dispute
• There is also the offence of "watching and besetting," which is particularly relevant to industrial conflict:
423(1) Every one who, wrongfully and without lawful authority, for the purpose of compelling another
person to abstain from doing anything that he has a lawful right to do, or to do anything that he has a
lawful right to abstain from doing, … (f) besets or watches the dwelling-house or place where that person
resides, works, carries on business or happens to be, … is guilty of an offence punishable on summary
conviction.
(2) 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.
b.
Civil Jurisdiction
Series of English torts:
• Tort of Conspiracy to Injure by Lawful Means (probably eliminated in Ontario except for secondary
picketing)
• Tort of Conspiracy to Injure by Use of Unlawful Means
• Tort of Directly Inducing Breach of Contract
• Tort of Indirectly Procuring Breach of Contract by Unlawful Means
• Tort of Direct Interference with Contractual Relations Falling Short of Breach
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• Tort of Intimidation
• Tort of Intentional Injury by Use of Unlawful Means
The first tort has been eliminated in Ontario by Rights of Labour Act s. 3(1).
i.
Standing of Unions
• At common law, a trade union is a voluntary unincorporated association, and therefore not a legal entity.
• Deemed to be held together by implied bipartite contracts between each member and every other
member, and these contracts are deemed to incorporate the terms set out in the union's constitution
• At common law, they cannot sue or be sued in their own names unless a statute says they can. However:
Teamsters v. Therien (1960) SCC
Teamsters had CA with employer saying only union members would be employed, Therien was
independent contractor who refused to join union because he had his own employees, Teamsters had his
contract terminated and he sued • Because Labour Relations statutes give unions right to act as agent and
contract on behalf of employees, unions can be sued, unless there is a contrary intention in the legislation.
Such as:
Ontario Rights of Labour Act s. 3(2)-(3) expressly renders this holding inapplicable in Ontario. Thus,
must sue individuals, which seem unfair to have a personal judgment against a serious of individuals for
the actions of a collective.
PI PSC v. Canada (2002) OCA
S. 3(2) exemption does not apply to unions under CLC • Does not preclude action in Ontario against a
union which is operating in the federal jurisdiction. May not even apply to unions under OLRA anymore
because said it need to be revised.
United Nurses of Alberta v. Alberta (1992) SCC
Unions have sufficient legal status to be prosecuted for criminal contempt of court.
ii.
Civil Remedies: Damages and Injunctions (Contempt Proceedings)
• Can get to Civil Court through contempt proceedings – if orders of the board are not complied with, they
can be filed in court and enforced through court orders.
 Two types of remedies - damages and injunctions
• To make speedy relief available, courts use interlocutory injunction. However, granting of such an
injunction often definitively disposes of a matter.
Court of Justice Act: The Labour Board can make a cease and desist order if it is illegal, but if it is legal, that
Board cannot really do anything- But the Court can! They can even do so before there is a determination about
whether or not it is illegal.
Injunctions and receivers
101.(1)In the Superior Court of Justice, an interlocutory injunction or mandatory order may be granted or a receiver or
receiver and manager may be appointed by an interlocutory order, where it appears to a judge of the court to be just or
convenient to do so.
(2)An order under subsection (1) may include such terms as are considered just.
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Injunction in labour dispute
102.(1)Definition
“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.
Notice
(2)Subject to subsection (8), no injunction to restrain a person from an act in connection with a labour dispute shall be
granted without notice.
Steps before injunction proceeding
(3)In a motion or proceeding for an injunction to restrain a person from an act in connection with a labour dispute, the
court must be satisfied that reasonable efforts to obtain police assistance, protection and action to prevent or remove any
alleged danger of damage to property, injury to persons, obstruction of or interference with lawful entry or exit from the
premises in question or breach of the peace have been unsuccessful.
Evidence
(4)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 statements 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.
Interim injunction
(5)An interim injunction to restrain a person from an act in connection with a labour dispute may be granted for a period
of not longer than four days.
Notice
(6)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.
Idem
(7)Notice required by subsection (6) to persons other than the responding party may be given,
(a) where such persons are members of a labour organization, by personal service on an officer or agent of the labour
organization; and
(b) where such persons are not members of a labour organization, by posting the notice in a conspicuous place at the
location of the activity sought to be restrained where it can be read by any persons affected,
and service and posting under this subsection shall be deemed to be sufficient notice to all such persons.
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Interim injunction without notice
(8)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 to be 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.
Misrepresentation as contempt of court
(9)The misrepresentation of any fact or the withholding of any qualifying relevant matter, directly or indirectly, in a
proceeding for an injunction under this section, constitutes a contempt of court.
Appeal
(10)An appeal from an order under this section lies to the Court of Appeal without leave.
Section 102
1. Only applies if you meet the precondition of being a “labour dispute”. Has a purposive element. Probably
does not apply to political strikes. If the purpose of the strike is not to compel the employer to agree to terms
and conditions, it is a strike according to the OLRA, but is not a “labour dispute” within the meaning of the
CJA.
2. If you fall with definition of labour dispute, then a number of items are imposed:
a. Affidavit evidence is limited to information within the knowledge of the deponent. (102(4))
b. The deponent may have to be cross-examined (102(4))
c. At least two days notice of the motion must be given to the union – no short leave applications (102(6))
d. The people subject to the injunction must be notified.
e. Interlocutory injunction had four day time limit- you can reapply, but four days max per injunction
order. (102(5))
f. No injunction will be ordered unless there is proof that obtaining police assistance to solve the problem
has be unsuccessful (102(3))
Regular RJR Test still applies for interlocutory:
RJR-MacDonald Inc. v. Canada (1994) SCC
Three-part test for interlocutory injunction: (1) Perform preliminary assessment of case to ensure there is
serious question to be tried; (2) Determine if applicant would suffer irreparable harm if refused; (3) Assess
which party would suffer greater harm from granting or refusal of remedy pending decision on the merits.
St. Anne Nackawic Pulp & Paper Co. Ltd. v. Canadian Paper Workers Union (1986) SCC
Mill workers held illegal strike (breach of CA) action in support of office workers despite interlocutory
injunction, employer sued union for damages • Claim for damages, or any other claim arising from rights
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under CA, must be settled by arbitration provided for in labour relations statute (e. g. OLRA s. 48(1)) •
Courts have injunctive power only to enforce general law as embodied in statute, not to enforce terms of
CAs.
Ontario v. OTF (1997) Ont. SC
Court injunction could not issue for illegal strike because, unlike NB legislation in St. Anne Nackawic,
ON legislation conferred cease-and-desist power on Board, and applicant had not exhausted this remedy.
GRIEVANCE ARBITRATION
• As seen in St. Anne Nackawic, grievance arbitrators have exclusive authority to award damages for
breach of no-strike clause (required by s.46 of OLRA).
• s.103 provides grievances arbitrators with the power to make decisions about whether there is a claim for
damages arising out of an illegal strike/lockout, However, they will do so only if the union is responsible
for such a breach.
Things they deal with:
If there is a breach of the no strike provision and if so, what is the remedy?
If there is an illegal strike and if so, what is the remedy?
If there is a discharge or termination, what is the remedy?
Re Oil, Chemical, & Atomic … (1958)
Union can be held liable for conduct of a member only by contract - NOT through principle of vicarious
liability • Union can be held liable only if, through its proper officers, it sanctions, directs, condones,
or encourages stoppages by any persons in the bargaining unit • Union must accept responsibility if there
is a strike called by steward • However, liability does not necessarily arise from stewards not taking action
if employees strike spontaneously • Direction of 'back to work' efforts may be in the hands of higher
officers • If stewards join in the action, however, this may show in absence of explanation that union was
encouraging strike • Would depend on duration and other circumstances of stewards' involvement • In
order to show tangible sign that union is not supporting strike, union executive officers would be obliged
to procure their withdrawal.
Newfoundland v. NAPE (1977) NFSC
Measures union hierarchy may take to avoid liability when illegal strike occurs may include: (1) Convene
meetings of each unit to order members not to strike; (2) After strike occurs, convene meetings to order
members back to work; (3) Give leaflets to each employee outlining the legal and practical situation; (4)
Emphasize any special importance of their work (e.g. care for those who cannot care for themselves); (5)
Visit picket lines to persuade strikers to return to work; (6) Call unit executive members 'on the carpet'; (7)
Use media coverage to persuade employees to return; (8) Suspend shop stewards; (9) Suspend unit
executives; (10) Fine, suspend, or otherwise discipline any member who participated in strikes; (11)
Clearly indicate to all that it is on the side of management.
LAVIGNE V. ONTARIO PUBLIC SERVICE EMPLOYEES UNION, (1991) SCC
Facts: ER at community college. CA with Rand Formula. Lavigne objected to fact that union funds used for
purposes other than collective bargaining (i.e. left-wing politics; Lavigne was funded by the NCC). Lavigne
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brought a claim, arguing the Rand Formula is a violation of s.2(b) [expression] and s.2(d) [association] Charter
rights.
Issues: Does the shop clause in CA infringe Charter s. 2(b) (expression)?
Held: Charter rights not infringed b/c of shop clause.
Reasoning: Fact that employee obliged to pay dues does not inhibit him from any meaningful way from
expressing contrary view re: merits of causes supported by union. Free to speak his mind. - Rand formula only
represents majority of union employees not voice of one and all.
S.1 Justification: Union plays economic role. Enhances economic interests of labour and working people by
preserving dignity in workplace. Also play role in politics. Membership hallmark of democracy.
Measures that reduce any infringement of individual right:
1) union can only compel dues from each member of bargaining unit after majority of employees choose
them
2) all members free to join union or not
3) unit may not discriminate against any member of unit on basis of union membership
4) if members of unit find they are unhappy they may vote to decertify union.
-very close case - and Lavigne could have really dismantled unions -Courts Treatment of Costs: case probably cost 2 or 3 million dollars to litigate - Mr. Lavigne was forced
to pay costs - Yikes!
-Charter Applies? -hard to tell whether or not it would even apply - the council of regents - at the community
college - court found that they were a creature of the crown - big hurdle, but they got over it –
Trial Court: Justice White accepted that there was no breach of freedom of expression because the ideology of
the group was not connected to him personally - first level: it is okay to open the union's books - 60 percent of
the costs went against the union - 40 percent against Mr. Lavigne Lavigne = grand total in union dues - 338 dollars - managed to find that he was paying five cents on
Nicaragua, 3.5 cents on NUPT - Grand amount that was going to be hived off was maybe 10 cents
The Real Story:
-Mr. Lavigne is a master instructor for the Haleybury School of Mines - Mr. Lavigne is a liberal - Timiskiming Mervin Lavigne - Bordner Ladner Gervais - his lawyers did not even see it as a labour case – but there were
serious dangers to the union movement - opt out clause - unions had to have
PICKETING
• Courts and labour boards much more permissive towards primary picketing than secondary picketing
• Generally falls outside labour relations statutes (in OLRA) and thus tends to be domain of courts exception is BC
-Weiler- Ontario’s labour regime is too decentralized- dispersed among judge, arbitrators, Boards etc.
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Canex Placer v. Canadian Association of Industrial, Mechanical… (1975) BCLRB
Picketers blocked access to mine by standing in road and uttering threats of violence • If acts which are
illegal independently of the labour relations statute are committed in the course of picketing, the courts
retain jurisdiction to deal with them.
• In Ontario, the Board's jurisdiction over picketing is limited to where conduct in question is causing an
illegal strike. See prohibition under OLRA s. 83(1), cease-and-desist power under OLRA s. 100.
Action
Labour Board
Court
Picket causing Illegal
Strike
s.83, 100, 102
Associated Torts, Criminal , also have the
Courts of Justice Act and injunctions.
Picketing /Lawful strike or From TTC: Board has nothing to say
lockout
about picketing if lawful strike unless
it somehow involves s. 83 , ie.
Perhaps also causes an unlawful strike
Primarily we will talk about restraining
the picketing under CJA- restraining
where strike/lockout is lawful. Will see
concern over whether an interlocatory
injunction restraining the picketing has
the effect of being a final decision. If you
never get a final decision than an order
that persists until the final decision on the
merits becomes permenant. – but
remember there is a FOUR DAY LIMIT.
Technically there has to be some cause of
action to effect injunction (tort etc.) but
courts seem to be loose on this.
Section 83: Prohibits a person from doing anything that they think will cause an illegal strike or lockout. So if
picketing and another bargaining unit decides not to cross picket line? Does that become an illegal strike?
- Probably- then maybe 83 comes into play – section 100 give the Board authority to make declarations about
illegal strikes and lockouts- s. 101 allows parties to file declarations made under 100 with the Superior
Court of Justice.
Courts of Justice Act
CJA s. 101 - gives general power to order interlocutory injunctions - interim order (supposed to have specific
time stamp) - interlocutory injunctions (mid process - run until final decision on the matter)
CJA s. 102 - specific to interim orders and injunctions where it is a labour dispute - imposes prerequisites in
102(3): must satisfy the court that the mover has made reasonable attempts to get police help and it has failed can last for a maximum of four days. Unions prefer because higher standard and 4 day limit.
Toronto Transit Commission (1996, OLRB)
Facts: union and OFL were urging workers to engage in a political protest strike against the govt. – picketing at
TTC stations - board held that these activities could breach section 83(1) and prohibited it - ordered a cease and
desist order - could not picket at entries and exits before 6:30 AM
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Board: confirms that it does not have any general jurisdiction over picketing - case about whether an illegal
strike could be caused by picketing - important to ask whether you are dealing with picketing or striking - you
may have to think about restraining picketing differently
Takeaway: case shows that picketing can cause an illegal strike to occur – thus it is possible to use section
83 to stop people from picketing if the picketing will or has led to an illegal strike
-----------------------------------------------------------------------------------------------------------------Progistix-Solutions Inc. (1999, OLRB)
Facts/Takeaway: reaffirms that the statutory power of the OLRB to deal with picketing is not as broad
as that of the BCLRB – essentially limited to situations where the conduct in question is causing an illegal
strike
PRIMARY PICKETING
• Involves "give and take" balancing: picketing activities necessarily interfere in some degree with civil and
legal rights of others
Harrison v. Carswell (1976) SCC
Picketer charged with trespassing for picketing on mall property (picketing often runs up against minor
criminal offences)• Although picketing is of significant social importance, no exception can be made to
legislated right to enjoy property except by act of legislature. Laskin dissent: The fact that she was
performing a legal activity should matter.
• But recall CJA s. 102(3) - no injunction can issue unless reasonable efforts to obtain police assistance have
been exhausted.
Industrial Hardwood Products (1996) Ltd. v. International Wood and Allied… (2001) OCA
For three months during strike, strikers blocked replacement workers' access except when police were
there • Test for CJA s. 102(3) is whether reasonable efforts to obtain police assistance have resulted in
acceptable degree of control in light of factors set out in section: property damage, personal injury, or
obstruction of lawful access to the premises • Laskin “absent questions of property damage or personal
injury, a robust society can accommodate some inconvenience as a corollary of the right to picket in a
labour dispute before the court will conclude that police assistance has failed.” With respect to
obstruction, factors include degree of obstruction, duration on each occasion, and how many days it has
gone on (otherwise delay, which is legal) • Here, there was complete obstruction of lawful access for
significant periods of time over significant number of days, so test in OCJA s. 102(3) was met.
Cancoil Thermal Corp. v. Abbott (2004) SCJ
Lawful strike picket of premises occupied by two related companies, picketers held up vehicles 15 minutes per
person, union offered to negotiate picketing protocol but company refused • Because of police policy not to
intervene, s. 102(3) has been met • Moving on to RJR MacDonald test, irreparable harm taken to mean
violations of rights or principles so fundamental that they constitute irreparable harm independent of economic
consequences (such that damages would not be adequate). This higher test is more appropriate than “serious
issue to be tried test” where the granting of injunction is likely to result in the permanent disposition of the
matter • Test not met • Even if it had been, court would not have exercised discretion given employer’s refusal
to negotiate picketing protocol.
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Ontario v. OSSTF (1997) Ont. SC
Political work stoppage in response to a bill – OLRA unlawful strike provisions do not apply because teachers
not covered under OLRA • Because it is political protest and not “labour dispute,” AG entitled to bring motion
under s. 101 and not s. 102 • However, at this early stage, no irreparable harm has occurred (no direct evidence
of harm to students or parents– so RJR-MacDonald test fails • As to balance of convenience, granting injunction
would ignore statutory remedial mechanism. Also, cannot say not a strike under OLRA because against
government, than say it is a “labour dispute” under definition in CJA, which does not encompass political
purpose.
Fleming Door Products Ltd. v. Hazell (2008) Ont. SCJ
Union and employee reached protocol of 30-minute delay of management, but no agreement as to shipping
vehicles – thus shipping vehicles were delayed as much as 4.5 hours • 4.5 hour delay amounts to obstruction •
Test for irreparable harm is met by conduct that is deliberately tortious or criminal • Where moving party seeks
to enjoin illegal acts, “balance of convenience” assumed to favour moving party (use with caution!,
inappropriate application of 101 and 102 of CJA together).
SECONDARY PICKETING
• Traditionally, the right of a secondary party to trade was held to outweigh the right of a particularized group to
picket, even in the absence of unlawful activity of the latter - see Hersees of Woodstock Ltd. v. Goldstein
(1963) OCA (case found secondary picketing is per se illegal - overruled in Pepsi).
Consolidated Bathurst Packaging Ltd. v. Canadian Paperworkers Union (1982) OLRB
Union lawfully struck four of five major cardboard manufacturers, sought to picket the fifth • Here, OLRB
asserted jurisdiction over secondary picket using "procuring unlawful strike" provision • Also, exception
for activities "in connection with lawful strike" not engaged because fifth manufacturer "wholly
unconcerned" with disagreement between union and employers.
Takeaway: in 1982, secondary picketing was still unlawful unless the company picketed was an “ally” – in this
case, the 5th cardboard manufacturer was not an ally – rather, it was a neutral party that was simply capitalizing
on the opportunity to make more profit
Domtar Construction Materials Ltd. v. Teamsters (1976) BCLRB
Seven striking employees of Domtar warehouse picketed Domtar plant located some distance away, sales
from both locations were handled by Domtar's marketing division, but locations otherwise operated
independently • Board prohibited picketing as it enabled small warehouse unit to bring disproportionate
degree of economic pressure on employer.
Irving Oil Ltd. v. Canadian Paperworkers Union (1990) NBQB
Employees on strike against Irving paper company sought to picket Irving gas stations • Although both
businesses owned by Irving family, relevant legislation prohibited picketing anywhere but at employer's
place of business, and Board ruled that oil company was not the workers' employer.
**Pepsi-Cola Canada v. RWDSU (2002) SCC
• Issue of secondary picketing involves balancing of Charter right to freedom of expression and the protection
of innocent third parties from economic harm • Secondary picketing generally lawful unless it involves tortious
or criminal conduct (such as battery, defamation, and nuisance- not clear if it includes economic torts), but third
parties should be shielded from "undue" harm • Court thus adopted "wrongful action" approach to picketing picketing generally lawful as form of expression unless curtailment is justified • Effectively ends "arbitrary"
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primary-secondary picketing distinction • Also, note that application for injunctive relief from picketing can
only be brought by party with standing to seek relief for associated actionable wrong.
JOB RIGHTS OF STRIKERS AND REPLACEMENT WORKERS
Section 1(2): For the purposes of this Act, no person shall be deemed to have ceased to be an employee by reason only of the
person’s ceasing to work for the person’s employer as the result of a lock-out or strike or by reason only of being dismissed by the
person’s employer contrary to this Act or to a collective agreement.
Section 1(2) essentially, preserves jobs of strikers allowing them to return once strike is over
• Replacement workers may be allowed, but keeping them after the strike is over may be ULP
The Royal York Case (1962, Ont. H.C.)
Facts: Lawful strike - employee sent out a letter - letter said that the letter encloses option of returning to work
or resigning - if the employee chooses to sign the return to work form, there would be new wage rate etc - if you
do not sign it, you will be fired
SCC: finds it to be a ULP - employees are being penalized for practicing rights under the act - grounded in
section 5 (was then section 3). A common sense reason for this: in the absence of this determination, every time
a collective agreement came to an end the employer could simply impose terms and conditions
Court of Appeal Dissenting Judge Locke: does not like the idea of the employment relationship persisting
forever until work stoppage ends
Takeaway: HC, OCA and SCC all affirm that workers have job rights while they are on strike –
grounded in section 5 (what was then section 3) – also, section 1(2) provides statutory protections for
striking workers – section 1(2) preserves relationship even though common law might say that it had
been terminated
Replacement Workers: workers from outside the bargaining unit who do the work of the strikers/locked out
workers
-in Ontario, one restriction: in section 78(2) – no professional strike breakers - companies might be
set up to provide replacement workers who were like security guard/paramilitaries
------------------------------------------------------------------------------------------------------------------does section 1(2) mean that striking workers always have the right to get their job back?
-in Ontario, we have section 80: - governs reinstatement of employee - provides a technical opportunity
for employees to return to work - employer shall reinstate the employee if they are given a form within six
months of the strike beginning:
80. (1) 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.
Exceptions
(2) An employer is not required to reinstate an employee who has made an application to return to work in accordance with ss. (1),
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(a) where the employer no longer has persons engaged in performing work of the same or similar nature to work which the
employee performed prior to the employee’s cessation of work; or
(b) where there has been a suspension or discontinuance for cause of an employer’s operations, or any part thereof, but, if the
employer resumes such operations, the employer shall first reinstate those employees who have made an application
under subsection (1).
Section 80 of the OLRA
-Provides protection in 6 month period - but what about after the six months? - Board not consistent……..
CALPA v. Eastern Provincial Airways Ltd. () CLRB
Airline hired 18 pilots during strike, tabled offer that would allow employer to call employees back to work
without regard to seniority • Keeping replacement workers instead of striking workers after strike may be ULP,
if this is a result of discrimination due to participation in union activities.
Ottawa Citizen (1999) OLRB
However, employer can show that it kept replacement workers because of their competence rather than antiunion animus.
Mini-Skool Ltd. (1983, OLRB)
Board: not a ULP to retain junior workers who had returned to work before the six months over more
senior employees that had not returned until after the six month time limit
Shaw-Almex Industries Ltd. (1986, OLRB)
Board: real question is what the employers motive was – the finding in Mini-Skool was dependant on
there not being an improper motive for extending preference to more junior employees - in Mini-Skool
the replacement workers were not strangers to the workplace - in this case they were – employer could
not prove that the replacement workers were not worse at their jobs
Takeaway: board can go either way on these cases – issues of seniority, ability to do the work will all play
a role – if there was an improper motive for retaining replacements/junior staff
• Quebec has adopted broad anti-replacement worker legislation
• Weiler says US should not adopt such legislation because (a) Employer's right to hire replacements is
analogous to worker's right to find another job; and (b) It is against free market principles
Birch v. Union of Taxation Employees (OCA, 2008 or 2009)- FINES TO UNION MEMBERS?
Facts: employees of CRA are on strike – unionized with UTE, a sub-branch of PSAC – two employees, Birch
and Labertie crossed the line – disciplined for crossing under the constitution of the union – gross pay for the
shifts that they worked through crossing – not even net – also suspended form union for three years – parties
agreed to go to superior court as a test case – constitution said that any worker that crossed the line, or is paid to
work or who volunteers for work will be guilty of an offence and forced to pay a fine equal to daily
remuneration multiplied by the times they crossed
Issue: can the union impose this fine? Is it unconscionable?
Superior Court: held in favour of the employees – fine was unconscionable
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Union appealed to OCA: fine not unconscionable – employees also should have exhausted internal appeal
mechanism first
OCA Majority Reasoning: this is a special contract – the imposition of a fine is not necessarily
unconscionable – the court did not decide whether penalty provisions are themselves unconscionable – instead
it was about whether this penalty was unconscionable
Unconscionability Analysis:
1) Inequality of bargaining power? Yes – no opportunity to negotiate the terms and conditions –
they could lobby to change the terms, but that does not matter
2) Unfair Terms? – terms were very unfair
 Penalty not proportional to harm done
 Amount was not trivial
 Not reasonable simply because it reflects value to employer
 A fine that exceeds their take home pay when they are already suffering is very
unfair
 There were more appropriate means to deter crossing the line
 Suspension itself was a significant penalty = ostracism and loss of benefits of union
membership (but that is not really true because terms and conditions of employment will
still be set by collective agreement)
 Rejects idea of fundamental principle of union solidarity
OCA Holding: very unfair term – imbalance of power – therefore unconscionable and therefore unenforceable
Ratio: where a fine under a union’s constitution is unconscionable, it will be unenforceable – was there
inequality of bargaining power and very unfair terms – if yes, then unconscionable
Dissent – Jurianz: they chose to join the union – no imbalance in power – also the terms were not very unfair –
penalty was substantial, but they were the breaching party
ALTERNATIVES: PUBLIC SECTOR AND ESSENTIAL SERVICES
• In Quebec, a specialized tribunal called the Conseil regulates the provision of essential services to the
public during work stoppages
• The union and the employer negotiate definition of essential services
• If negotiation is successful, agreement is subject to approval by Conseil when notice to strike is given
• Otherwise, Conseil can mediate settlement
• Similar arrangement in BC
• Alternative model: Interest Arbitration
Ponak & Falkenberg 1989
• Empirical evidence suggests that compulsory arbitration reduces the likelihood that parties will reach
their own agreement
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• Three possible explanations: (1) Reduced impetus to reach agreement; (2) 'Chilling effect' - fear that
concessions during bargaining may prove harmful due to perception that arbitrators 'split the difference';
(3) 'Narcotic effect' arbitration may be habit forming
• Two types of arbitration: conventional arbitration or final offer selection
• Note 'choice-of-procedures' system - one party has the right to elect work stoppage or arbitration
O'Grady 1994
Known facts about arbitration:
• Has an upward bias on relative wages in the public sector
• Significant variance among arbitrators in weight attached to different criteria
• Productivity, ability-to-pay, and labour market disequilibria factors play little role in shaping arbitral
decisions
• Comparability factors carry the greatest weight by far
• Deferred compensation (e.g. pensions) not given significant weight
• Arbitration is rarely chosen freely by parties to CA, it is especially rare in the private sector
• Mandatory arbitration diminishes the proportion of settlements achieved through negotiation
• Arbitrators tend to award conservatively on non-compensation issues
Other considerations: legitimacy and efficiency (i.e. is negotiated agreement more workable than imposed
one)? Are non-compensation issues ill-suited (e.g. classroom size) to come before an arbitrator?
Hebdon & Stern 1998
• Interest arbitration can also lead to the redirection of conflict - e.g. higher grievance rates, work-to-rule
Public Sector
Three Key Areas where labour relations are extremely different: (the law)
1. Collective representation/certification - in a number of ways, certification is different than OLRA
- legislation may set out what the bargaining unit is and who the bargaining unit will be - employees
often do not have a choice about who to be represented by or whether to be represented at all
2. Scope of Bargaining - under OLRA the sides can basically bargain however they want to as long it
is not illegal - but in the public sector, the scope is circumscribed by legislation - police cannot
bargain on discipline - teachers cannot bargain on hours, class sizes, education conditions - pensions
can sometimes be non-negotiable
3. Dispute Resolution Procedures - can be banned outright, or at least very limited - may include
mandatory binding arbitration
Finkelman 1986
• Public service employees should not have right to strike, instead there should be permanent public service
arbitration tribunal with the support of neutral, independent pay research agency that does research on pay
patterns
Essential Services
3 Models - Essential Service Dispute Resolution
Limited or Controlled Strike
one way of dealing with essential services - mostly from BC - some third party (board, arbitrator) decides which
of the services provided by the unit are essential- can determine it on the basis of which jobs must be performed
- can also decide it on the basis of which individual employees must continue to work - board may require that
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the parties have an essential service plan in advance - sometimes the legislation itself sets out what essential
services are
-study by Adell et al. found this to be the best model in terms of outcomes - both unions and employers
prefer this model
Complete Strike Ban
Neither employees nor unions like these - strikes can have cathartic effect - balloon effect - will express itself in
different ways - work slowdowns - tons of grievances Unfettered Strike Model
Often ad hoc legislation is used - TTC, CUPE - Canadian govt happy to impose BTW legislation - a little bit
inaccurate to call it unfettered.
SPEAKER: CONSTRUCTION LAW
• Covered by OLRA ss. 126-68
• OLRA s. 126.1: ss. 1-125 also apply to the construction industry
• What is a construction employer? See definition of "non-construction employer" in OLRA s. 126(1)
• Note repair/maintenance distinction - can get convoluted
• Key difference however is certification - see OLRA s. 128.1
• Divided into geographical regions
• Except for Industrial, Commercial, and Institutional sector
• Note test on slide 8: at work, performing bargaining unit work for the majority of the time, on the application
date
• See Smiths Construction - opening of moose-hunting season, most of 100 employees out hunting moose, 15
remained of which 10 had signed union cards, application was filed on that day counting only those 15, and the
other 85 of whom only about 5 had signed union cards came back the next day and were unionized
• Note Sector Disputes on slide 16: Canform Structures, where university residence was ruled ICI sector rather
than residential sector. Also a timeshare condo can be ICI sector rather than residential sector.
DUTY OF FAIR REPRESENTATION
• Canadian labour law governed by principles of majoritarianism and exclusivity
• This means individuals in bargaining unit have no right to bargain individually with employer
• Collective Agreement overrides individual contracts of employment
McGavin Toastmaster Inc. v. Ainscough (1976) SCC
Employees stage illegal strike upon hearing that employer plans to close plant, employer purports to treat these
employees as having each individually repudiated their contracts of employment • Union enters into collective
agreement as independent contracting party, employer agrees that all employer-employee relations in the
bargaining unit are to be governed by the terms of the CA • Thus, a CA is not a bundle of individual contracts
between employer and employees • Thus, employees cannot individually repudiate CA or negotiate other terms,
because they are not technically party to it.
• However, unions then come under a duty of fair representation to employees in the bargaining unit
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Duty of fair representation by trade union, etc.
74. 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.
Duty of fair referral, etc., by trade unions
75. 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.
-a statutory duty imposed on unions - not just towards union members but also towards all members of the
bargaining unit
-a common law obligation as well - a corollary of the power that unions have as the exclusive representatives of
workers Section 74 Duty of fair representation
3 dimensions: duty to not act in a matter that is arbitrary, discriminatory or in bad faith
-Applies not just in negotiation of the CA, but also in administration of the CA - to ensure that
the employer abides by the CA (some jurisdictions different)
Section 75 Duty of fair referral
Refers to hiring policies - in many industries, the union runs what is called a hiring call - union members
sign up on this hiring call - list based on seniority - employer hires employees from the hiring call - There
is a clear opportunity for discrimination etc in the hiring call - but only applies to certain industries
Need for s. 74 and 75 arise due to exclusive rights for union to bargain/represent employees:
1. Exclusive bargainer
2. Exclusive griever (privity of contract) - union has to decide whether or not to "carry the grievance" only the union can complain about the employer's conduct
Most DFR complaints arise around the handling of grievances - employee may believe that it has been
breached, but the union may disagree (bad case, conflicting interests of other employees) - grievance handling is
discretionary
-can also arise around the union's handling of negotiations - different subgroups of employees can have different
interests (senior = pensions important, junior = pensions not as important)
-can trade off grievances – like in Royal Oak - employer insisted that union drop grievances over termination employees would have had no recourse - SCC said that no union could agree to that term
Interesting Phenomenon:
-in Ontario, we have seen a large rise in the number of complaints per capita - similar increase in other
provinces - speculation: people have a better understanding of individual rights
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-leads to a large resource drain on labour boards – very few DFR complaints are found to be
meritorious - a number of labour boards have tried to expedite:
-Ontario: consultation process - board meets with the parties - that's how DFRs tend to be
dealt with in Ontario - typically self-represented - often times the complainant simply wants an
opportunity to have their complaint heard
• Note three criteria in s. 74 - arbitrary, discriminatory or in bad faith
• Note that DFR includes negotiation as well as administration of CA
• OLRA s. 96 - complaint mechanism for DFA
• Subsection (1) - Board may appoint labour relations officer
• Subsection (2) - Officer must inquire into complaint and endeavour to effect settlement
• Subsection (3) - Officer must then report results to board
• Subsection (4) - Broad remedial power
CASE LAW FOR DUTY OF FAIR REPRESENTATION
Judd v. Kelowna Daily Courier (2003) BCLRB
Facts: consultation process like ours - trying to weed out bad claims - the board says that it also has a very large
volume of DFR complaints - the board says that a lot of this flows from the fundamental misunderstanding of
the nature of rights that people think they have under DFR section - it is actually an extremely narrow right often it is about the fact that the union was "wrong" - but really, the board just has to determine if the union has
been discriminatory, acted in bad faith or been arbitrary
-balancing consideration: the union has to be the sole representative for all members of the bargaining
unit - as such, it is not possible for the union to reflect the interests of all individual members - board:
would be impossible for the union to do its duties if it had to listen to and act on all employees demands unions also have limited resources - also recognizes that part of the unions mandate is to not take all
grievances - union must consider the overall interests of the bargaining unit members - board also
emphasizes that the DFR is not an appeal for union decisions - not an avenue of appeal
Employee dismissed once and is reinstated after union filed grievance in his behalf, later dismissed a second
time and union declines to pursue grievance, employee filed application to Board alleging breach of duty of fair
representation • Three statutory criteria • General points: must evaluate union's conduct as a whole, issue is
union and not employer conduct, depends on circumstances • Bad faith generally involves improper purpose or
intention to deceive employee (if this directly affects quality of union's representation of an employee's interests
- e.g. if union declines to make argument regarding discretion to relieve against time limits because it is
embarrassed at having filed late) • Discrimination not restricted to grounds that violate human rights code also includes simple personal favouritism - but must be discrimination on irrelevant circumstances •
Arbitrariness encompasses three requirements: union must (i) ensure it is aware of the relevant information;
(ii) make a reasoned decision; and (iii) not carry out representation with blatant or reckless disregard • The
greater the impact on the concerned employee's interests, the more care must be taken • Ensuring awareness of
relevant information may often (but not in every case) mean conducting an adequate investigation • An
adequate investigation "may include considering the sequence of events, learning the grievor's point of view,
obtaining information from potential witnesses, and offering the grievor a chance to respond" • Reasoned
decision is one that reflects rational connection between the relevant information and the decision made • May
include considering collective agreement language, the practice in an industry or the workplace, how similar
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grievances have been handled in the past, balancing competing interests among employees, any mitigating
circumstances, and supplying reasons for a decision • A legal opinion may be an indicator that the union made a
reasoned decision • Blatant or reckless disregard means with respect to the interests of the employee • General
requirement: complainant must exhaust internal appeal remedies.
DFR claims generally deal with CA administration, but some deal with CA negotiation
Bukvich v. Canadian Union of United Brewery, Flour, … (1982) OLRB
Union representing truck drivers working in quarry paid per load bargains for layoff provisions on initiative of
senior drivers in unit • Union bound to implement majority decisions of members, special considerations attach
to any decision that alters or abrogates the job security of employers • Therefore, union must consider and
balance all legitimate interests without regard to extraneous factors • Question is not whether decision is correct,
but rather whether it is one that could reasonably be made in all the circumstances • Here, despite seriousness of
implications for those affected by union decision, it was not unreasonable in light of drastic financial situation
of workers in quarry.
Although most DFR questions are raised in the context of CA administration, there can be an element of
negotiation where there is an understood practice of not enforcing the apparent meaning of the agreement in
certain circumstances:
Rayonier Canada (BC) Ltd. v. International Woodworkers of America (1975) BCLRB
Layoffs at sawmill take place in potential violation of seniority provisions in accordance with established
practice understood between employer and union, aggrieved worker files grievance which union drops • CA
administration is not simply enforcement of individual contract claims, but requires consideration of collective
interests • Factors to consider where a union denies a grievor access to the arbitration process include: (1)
Importance of interests affected; (2) Validity of claim; (3) Previous practice; (4) Contrary interests of other
employees or of the bargaining unit as a whole • Here, counterbalancing interests of bargaining unit and
particularly employee recalled in place of grievor outweighed grievor's interests.
• Adell 1986 proposes giving workers individual right to file grievance under CA. Benefits would outweigh
mild inconveniences that would arise. Points to success in Western Europe.
• Some jurisdictions have adopted filter mechanisms to avoid frivolous DFR complaints - see OLRA s. 99(3)
and CLC s. 98.
This broad discretion in negotiations is contrasted by the narrow discretion allowed in administration:
Regina
Facts: addresses trading off of grievances - can be huge backlog of grievances when agreement is being
renewed - grievances represent important employee interests - in this case, the griever had been terminated
because she was absent due to illness - grieves it - before the arbitration was heard, the employer and the union
were bargaining a new contract - union agreed to drop all grievances - employee filed a DFR complaint - got to
the SCC
SCC: given the serious consequences of grievance swapping, where the subject matter was very important - this
was a breach of the DFR - grievances fall under the admin of a CA, not the negotiations - boards tend to give
unions lots of discretion in negotiation, but not in admin Takeaway/Test: will be that for grievance handling, not negotiations - where there are substantial
employee interests involved (like termination), then the union will have substantially reduced discretion
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DFR also comes into play in sectors where hiring takes place through the operation of a hiring hall:
Nauss and Roberts v. Halifax Longshoremen's Assoiation (1981) CLRB
Longshoremen challenged unfair referral practices engaged in by union hiring hall • Board has power to
review union's practices with respect to referral and order union to admit individuals to membership if
necessary. Also, when one runs a hiring hall, one must make and post rules for how the hall will function.
Treated Nauss and Roberts arbitrary.
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