Labour Relations
1
Chapter 1 - Introduction (Labour Policy) ................................ 6
Three Legal Regimes at Play in Labour Relations ............................. 6
1. Common Law of Employment ...................................................................... 6
2. Collective Bargaining................................................................................... 6
3. Statutory Regulation ................................................................................... 6
Work and Employment .................................................................... 6
History of Work and Employment .................................................................... 6
The History of Labour Law ............................................................... 7
The Common Law Contract of Employment ..................................................... 7
History of Collective Bargaining in Canada ...................................................... 7
Values and Assumptions .................................................................. 9
Introduction .................................................................................................... 9
The Market Model ........................................................................................... 9
Countering the Market Model ........................................................................ 10
Constitutional Issues..................................................................... 13
Three types of Constitutional Issue ............................................................... 13
The Constitution and Labour Law .................................................................. 13
Federal Jurisdiction ...................................................................................... 14
Chapter 2 - The Contract of Employment: Common Law
Regime of Employment ........................................................ 16
How is a labour contract different then a regular contract? ........... 16
Employee Status ........................................................................... 16
Difference between Employees and Independent Contractors ........................ 16
Relationship between Human Rights & Development of the CL in relation to
Discrimination .............................................................................................. 16
Rules of Construction of the Employment Contract ....................... 17
Incorporation of Ancillary Documents into Employment Contracts ............... 17
Implied Contractual Terms – Employment K Silence ..................................... 18
Termination of the Employment Contract ..................................... 20
Wrongful Dismissal ........................................................................................ 20
Reasonable Notice of dismissal – Implied Term .............................................. 20
What is reasonable notice? ............................................................................ 20
Express Notice Provision in Contract ............................................................. 21
Devices used to defeat written contractual terms .......................................... 21
Constructive Dismissal .................................................................................. 23
Summary Dismissal for Cause or Dismissal Without Notice for Cause ............ 24
Procedural Fairness ....................................................................................... 25
Remedies in Wrongful Dismissal cases ........................................................... 25
Damages in a Wrongful Dismissal Case .......................................................... 26
Chapter 4 - Status Under Collective Bargaining Legislation .. 29
Who Is An Employee? .................................................................... 30
Competition Act ............................................................................................ 30
Dependent Contractors ................................................................................. 31
Labour Relations
2
Near Employees ............................................................................................. 33
Excluded Employees ...................................................................................... 33
Rational grounds for excluding each of these groups? ................................... 33
Professionals ................................................................................................. 35
Public Employees .......................................................................................... 35
Managerial Employees ................................................................................... 36
Qualified Trade Unions .................................................................................. 39
Employer Influence ....................................................................................... 40
Chapter 4 Conclusion .................................................................................... 40
ILO Convention 87 ........................................................................................ 42
ILO Convention 98 ........................................................................................ 42
ILO Report of the Freedom of Association Committee against the Government
of Ontario – Exclusion of categories of workers from the Labour Relations Act
..................................................................................................................... 43
Complainant Allegations................................................................................ 43
Chapter 5 - The Right to Join a Union ................................. 45
Policy: Articles from the text ......................................................... 45
Proving an Illicit Motive ................................................................ 45
The Labour Relations Act: Relevant Provisions .............................................. 46
Non-Motive Unfair Labour Practices ............................................... 47
Grounds for finding a violation of Section 70................................................. 47
Contracting Out Union Jobs .......................................................................... 49
Alteration of Working Conditions: The Statutory Freeze ................ 50
Freeze Chart (Certification & Collective Bargaining) ...................................... 50
Tests: ............................................................................................................ 50
Employer Speech...........................................................................
Solicitation on Employer Property .................................................
Union Unfair Labour Practices .......................................................
Remedies for Interference with the Right to Organize ....................
Principle Remedial Section: s.96(4)...............................................
54
54
56
57
57
Remedies Review .......................................................................................... 57
Interim Relief................................................................................ 59
Section 11: Remedial Certification ................................................................ 59
Requirements for Certification as a Remedy (see S.11) .................................. 59
Interim Reinstatement (S.98) ........................................................................ 60
Overview of Section 98 – What to look for when arguing for reinstatement .... 60
Consultation under s. 98: .............................................................................. 62
Conspiring to Effect an Unlawful Purpose ...................................... 63
Chapter 6 - The Acquisition and Termination of Bargaining
Rights .................................................................................. 64
The Wagner Act Model and the Principle of Exclusivity ................. 64
KEY PRINCIPLES: majority rule & exclusivity ................................................ 64
The Appropriate Bargaining Unit ................................................... 65
Labour Relations
3
Bargaining Unit Determination: General Principles ........................................ 65
Delineating the Bargaining Unit..................................................................... 66
Bargaining Unit Determination and the Organizing Drive .............................. 68
DETERMINING EMPLOYEE SUPPORT ............................................. 74
TIMELINESS OF CERTIFICATION AND DECERTIFICATION APPLICATIONS .... 74
SUCCESSOR EMPLOYERS, CONTRACTING OUT, AND RELATED
EMPLOYERS.................................................................................. 76
Successor Employers ..................................................................................... 76
Termination of Bargaining Rights .................................................................. 77
Chapter 7 - Negotiating a Collective Agreement ................... 79
Introduction..................................................................................
The Statutory Timetable ...............................................................
The Bargaining Freeze (See Chart Above) .......................................
The Duty to Bargain in Good Faith ................................................
79
79
79
79
Purpose of the Duty to Bargain ...................................................................... 79
Content of the Duty to Bargain...................................................................... 80
Substantive and Procedural Obligations Imposed by the Duty to Bargain ....... 82
To what extent can Labour Boards scrutinize the contents of bargaining
proposals? ..................................................................................................... 84
Disclosure of Decisions or Plans Substantially Affecting the Bargaining Unit . 85
Remedies for Violating the Duty to Bargain ................................... 88
Chapter 8 – Industrial Conflict ............................................. 90
A Constitutional Right to Strike? ..................................................
Legal Prohibition of Strikes and Other Economic Sanctions: The
Peace Obligation............................................................................
Prohibition of Strikes ....................................................................
Definition of “Strike” ....................................................................
Actions Constituting a Strike: Common Activity or Concerted
Activity .........................................................................................
The Strike Prohibition and Sympathetic Action .............................
Is a Political Protest a Strike? .......................................................
Legal Forums Regulating Industrial Conflict ..................................
The Courts ....................................................................................
90
92
92
92
93
95
96
96
97
Criminal Jurisdiction .................................................................................... 97
Civil Jurisdiction .......................................................................................... 97
Tort Illegalities ............................................................................. 98
The Tort of Consiracy to Injure by Lawful Means ........................................... 98
Tort of Conspiracy to Injure by Use of Unlawful Means .................................. 98
Tort of Directly Inducing Breach of K ............................................................ 98
Tort of Indirectly Procuring Breach of K by Unlawful Means .......................... 99
Direct Interference with K Relations Falling Short of Breach ......................... 99
Tort of Intimidation ...................................................................................... 99
Labour Relations
4
Tort of Intentional Injury by Use of Unlawful Means ...................................... 99
Legal Capacity of Trade Unions to Sue and Be Sued ......................100
Civil Remedies: Damages and Injunctions .....................................102
Damages...................................................................................................... 102
Injunctions.................................................................................................. 102
The Role of Labour Relations Boards ............................................105
The Arbitrator’s Role in Industrial Conflict ...................................106
Awards of Damages by Arbitrators ............................................................... 106
Employer Disciplinary Action against Strikers ............................................. 106
CHAPTER 8 - Regulation of PICKETING ............................. 108
Role of labour board with regard to picketing: ............................................. 108
Primary Picketing ........................................................................109
Courts of Justice Act – s. 102(3) .................................................................. 109
Injunction in labour dispute ........................................................................ 109
Secondary Picketing .....................................................................112
Employee Status during a Strike ................................................................. 116
Chapter 9 – The Collective Agreement and Arbitration ...... 118
The Common Law View of Collective Agreements..........................118
3 major CL obstacles stood in the way of the enforcement of CAs by civil
action:......................................................................................................... 118
History Note ................................................................................................ 119
Grievance Arbitration as a Distinctive Form of Adjudication .........119
MANAGEMENT RIGHTS ................................................................120
DISCIPLINE AND DISCHARGE .......................................................122
Disciplinary Penalties ...................................................................124
Damages ......................................................................................126
EXTERNAL LAW AND MULTIPLE FORMS .......................................128
Arbitration and Employment-Related Statutes ............................................ 128
Arbitration and the Charter ..........................................................130
Multiple Forms ............................................................................................ 130
Arbitration and Civil Actions ....................................................................... 130
Chapter 10: The Individual Employee Under Collective
Bargaining ......................................................................... 133
Remember Majoritarianism and Exclusivity! .................................133
2 Main Ramifications of Exclusivity: ............................................133
Duty of Fair Representation .........................................................135
Duty of Fair Rep arises in two scenarios: bargaining and deciding to
bring a grievance. .........................................................................135
The regulation of Union Bargaining by the Board using Duty of Fair
Representation: ........................................................................................... 135
The regulation of Union decisions to Grieve by the Board using Duty of Fair
Representation: ........................................................................................... 136
Labour Relations
5
What is the remedy if the board finds that the union did violate the duty of fair
representation? ........................................................................................... 138
Union Security .............................................................................139
Closed Shop Clause ..................................................................................... 139
Union Shop ................................................................................................. 139
Maintenance of membership ........................................................................ 139
Rand Formula (agency shop) ........................................................................ 139
Voluntary Check Off .................................................................................... 139
Religious Objector ....................................................................................... 140
Union Security Provisions and the Role of Unions in Society ........141
Labour Relations
6
Chapter 1 - Introduction (Labour Policy)
Three Legal Regimes at Play in Labour Relations
1. Common Law of Employment
 Treats employers and employees as free and equal contracting parties
 Contract is formed by negotiation between free individuals
 Enforced by the courts – similar to a classic commercial contract
2. Collective Bargaining
 Based on the realization that the usually inferior economic position of the employee vis-à-vis
the employer keeps the individual employment contract from being a satisfactory regulatory
mechanism.
 Collective bargaining regime substitutes individual negotiation with collective negotiation to
provide for greater equality of negotiation power
 Adjudication is done by specialized administration tribunals (labour relations boards and
arbitration tribunals), rather than by the courts
3. Statutory Regulation
 Employment standards legislation provides for minimum wages, maximum hours, health and
safety
 Includes the Ontario Labour Relations Act, the Ontario Employment Standards Act, the
Ontario Human Rights Code, etc.
Work and Employment
History of Work and Employment
“Editor’s Introduction: Historical Aspects of Work, Employment, Unemployment and the Sexual
Division of Labour” (Raymond Edward Pahl)
- Historically, the distinction between work and employment was blurred, as most workers were
agricultural workers who worked farms both for their own sustenance and to produce an income
- Pre-industrial times saw most of a person’s work done in and for the household.
- The notion that one should obtain most, if not all, of one’s material wants as a consumer by
spending the money gained through employment emerged for the first time in the nineteenth
century.
“Labour Is Not a Commodity” (David Beatty)
- Employment is not simply just work. Because of the way society is organized, what one does for
a living has much greater implications for his/her identity.
- The personal meaning of work is seen to go beyond rather than to be completely dependent upon
the purposes of production. That, it seems to me, was what the members of the world
community, through the International Labour Organization, were affirming at the conclusion of
both world wars when they gave expression to the principle that ‘labour is not a commodity’.
Labour Relations
7
Consistent with the traditional understanding of work relationships generally, this Labour
Charter confirmed the existence of a discrete, personal meaning of employment to be defined by
other than its social (production) purposes. At its most basic level, this personal end of the
relationship is one of subsistence, of physical survival. As we have noted, for most individuals in
our own society their physical needs can only be satisfied within this institution. However, at a
more sophisticated level, and reflecting the characterization of humans as, for the most part,
doers and makers, the identity aspect of employment is increasingly seen to serve deep
psychological needs as well.
The History of Labour Law
The Common Law Contract of Employment
In feudal times production was based on status relations. Servants owed duties of fealty to their masters,
who had complete control over them. In the eighteenth century new contract doctrines that facilitated the
use of free wage labour emerged. Sir Henry Maine acclaimed the evolution of modern contract as a
marvelously progressive development.
“History and Heritage: The Social Origins of the British Industrial Relations Systern” (Alan Fox)
-
-
The principles of individual freedom and equal treatment embodied in the common law contract
of employment were infused with paternalistic elements, in addition to operating within an
overarching system of unequal power.
The Statute of Artificers of 1563 - little more than an attempt to apply, on a national scale, laws,
guild rules and municipal regulations going back to the Middle Ages.
Essentially, the criminal law was used to enforce individual contracts of employment until quite
recently.
Today, the only vestige of this rigorous enforcement of employment contracts is found in section 422 of the
Criminal Code, which makes any person “who wilfully breaks a contract” guilty of an offence when he or
she knows or reasonably ought to know that the
Breach will “endanger human life, … cause serious bodily injury, ... expose valuable property … to
destruction or serious injury,” or disrupt public utility or railway service. A saving provision permits a work
stoppage by employees engaged in a collective bargaining dispute, provided that all relevant labour
legislation is complied with.
History of Collective Bargaining in Canada
Labour Law in Canada” (Carter, England, Etherington, & Trudeau)
- As early as 1794 employees of the North West Fur Trading Company went on strike for higher
wages. However, only with the introduction of industry at the beginning of the nineteenth
century was a true labour movement begun.
-
Journeymen and craftsmen in the few urban areas, particularly in the building, printing. Clothing
and shoe trades began to organize for the purpose of mutual aid and protection and to achieve by
united action such objectives as the ten hour day, higher wages and better working conditions.
Labour Relations
8
-
Union organizers were subject to prosecution for the common law crime of conspiracy.
-
In the years following Confederation, labour began to develop a new assertiveness and unity.
Local labour councils sprang up in the cities and in 1873, representatives of thirty-five unions
formed the first central labour council, the Canadian Labour Union.
-
In the 1870s the federal government intervened to limit the availability of criminal sanctions to
inhibit trade unionism. However, further amendments in 1875 and 1876 narrowed the definition
of criminal conspiracy for the purposes of trade combinations to the performance of acts
expressly punishable by law. In 1890, the refusal to work with a workman or for an employer
was expressly legalized.
-
Unions grew as resource development and national transportation were emphasized as key
elements in the emerging national economy.
-
The First World War proved to be extremely important for the Canadian trade union movement.
The number of workers involved in strikes grew from 43,000 in 1912 to 150,000 in 1919.
-
The postwar discontent and conflict is symbolized by the Winnipeg General Strike of 1919. The
vast majority of the city’s workers demanded union recognition, collective bargaining and the
maintenance of working conditions obtained during the war. Not only did the federal government
use its immigration and criminal powers to deport and imprison strike leaders, it called in armed
mounted police reinforced by federal troops. In the end the strike was crushed, as was labour
militancy across the country.
-
In 1935 the US Congress passed the National Labour Relations Act (also called the ‘Wagner
Act’ after its sponsor, Sen. Wagner of New York) which exerted a profound, if somewhat
delayed, influence on Canadian labour relations policy. This statute explicitly recognized the
right of employees to belong to the trade union of their choice and to participate in the process of
collective bargaining through that union. To make effective these rights, the statute forbade
certain unfair labour practices commonly practiced by employers to thwart unionization and
imposed upon employers the duty to bargain in good faith with the union selected by their
employees.
-
Between 1937 and 1939 a number of provinces enacted statutes which announced the basic right
of association and attempted to protect employees from employer retaliation on the basis of trade
union membership. In 1939 the federal government followed suit by amending the Criminal
Code to prohibit discrimination or discharge of workers because of their union membership.
-
The Second World War was a period of rapid industrialization and trade union growth. Trade
union membership almost doubled from 362,000 in 1940 to 711,000 in 1945, as the labour
shortage and general economic recovery proved conducive to trade union organization.
-
In 1943, Ontario became the first jurisdiction to adopt a fully-fledged collective bargaining
statute, although its enforcement was entrusted to the Ontario Labour Court (a division of the
High Court of justice), rather than to an administrative board.
Labour Relations
-
9
Following the repeal of the federal war-time regulations in 1948, virtually all provinces (and the
federal government) adopted Wagner-style labour relations statutes, covering all employees in
the private sector.
Values and Assumptions
Introduction
- Labour law emerges in response to economic and political pressures. Those pressures change
over time. So too do the normative discourses used to justify particular responses. It is these
normative discourses, values, and assumptions that are the focus of this section of the chapter.
- The common law is rooted in the notion of contract, private ordering, and the values that underlie
the market — self-reliance, individualism, liberty for atomistic individuals, and the separation of
the private sphere and the public sphere.
- Some of the values that underlie collective bargaining are the same as those that underlie the
common law contract of employment, but some are nor. Collective bargaining departs from the
individualistic principles of the market insofar as it allows for concerted action by employees
with a view to both a fairer market process and a fairer distribution of the fruits of the market.
The Market Model
- ‘Labor is not a commodity’ is a battle cry of some labor groups. Whatever its emotional appeal,
the assertion is misleading. Labor service is bought and sold daily.
- Economic analysis denies that, in the absence of legal protection for labor, employers would
grind wages down to the minimum survival level. An analogy will suggest why. Why are rents
on land not ground down by renters to zero. The demands by those who would use the land bid
up the rents. Simple supply and demand are in operation. And so it is with labor. The alternative
uses and values to which labor could be put are determined by all who compete for it.
- An employer, then, if he is to retain his employees, must detect and match offers of other
employers. The employer who does so (through periodic wage and salary reviews and
raises), without forcing his employees to seek offers and then ask for a raise, will have to
pay no higher wages than if he waited for each employee to initiate negotiations.
- Job comparison is costly for employees; so the employer who is known to take the initiative in
anticipating or matching market offers will find more employees willing to work for him than for
one who tries to impose all the costs of job comparison on employees.
“Capitalism and Freedom” (Milton Friedman)
- Milton Friedman wrote a famous normative defence of the system of market ordering.
- Fundamentally, there are only two ways of co-ordinating the economic activities of millions.
One is central direction involving the use of coercion — the technique of the army and of the
modem totalitarian state. The other is voluntary cooperation of individuals the technique of
the market place.
- The possibility of co-ordination through voluntary co-operation rests on the elementary — yet
frequently denied — proposition that both parties to an economic transaction benefit from it,
provided the transaction is bi-laterally voluntary and informed.
Labour Relations
-
-
10
Exchange can therefore bring about co-ordination without coercion. A working model of a
society organized through voluntary exchange is a free private enterprise exchange economy —
what we have been calling competitive capitalism.
So long as effective freedom of exchange is maintained, the central feature of the market
organization of economic activity is that it prevents one person from interfering with
another in respect of most of his activities. The consumer is protected from coercion by the
seller because of the presence of other sellers with whom he can deal. The seller is protected
from coercion by the consumer because of other consumers to whom he can sell. The employee
is protected from coercion by the employer because of other employers for whom he can work,
and so on. And the market does this impersonally and without centralized authority.
Countering the Market Model
“Elegant Tombstones: A Note on Friedman’s Freedom” (C.B. Macpherson)
- Professor Friedman’s demonstration that the capitalist market economy can co-ordinate
economic activities without coercion rests on an elementary conceptual error.
- In our actual complex economy the ultimate contracting parties who have the most effect on the
market are not individuals but corporations, and corporations in one way or another manage to
opt out of the fully competitive market.
- Friedman contends that “individuals are effectively free to enter or not enter into any particular
exchange”. This is not so. The proviso that is required to make every transaction strictly
voluntary is not freedom not to enter into any particular exchange, but rather it is freedom
not to enter into any exchange at all.
- Friedman has moved from the simple economy of exchange between independent producers, to
the capitalist economy, without mentioning the most important thing that distinguishes them. He
mentions money instead of barter, and ‘enterprises which are intermediaries between individuals
in their capacities as suppliers of services and as purchasers of goods’.
- What distinguishes the capitalist economy from the simple exchange economy is the separation
of labour and capital, that is, the existence of a labour force without its own sufficient capital and
therefore without a choice as to whether to put its labour in the market or not.
“Freedom and Coercion”( Max Weber)
- The formal right of a worker to enter into any contract whatsoever with any employer
whatsoever does not in practice represent for the employment seeker even the slightest freedom
in the determination of his own conditions of work, and it does not guarantee him any influence
on this process.
- It is the employer who sets the terms, to offer the job to someone “take it or leave it”, and
given the normally more pressing economic need of the worker, to impose his terms upon
him.
- The increasing significance of freedom of contract and, particularly, of enabling laws which
leave everything to ‘free’ agreement, implies a relative reduction of that kind of coercion which
results from the threat of mandatory and prohibitory norms.
- A legal order which contains ever so few mandatory and prohibitory norms and ever so
many ‘freedoms’ and ‘empowerments’ can nonetheless in its practical effects facilitate a
Labour Relations
11
quantitative and qualitative increase not only of coercion in general but quite specifically of
authoritarian coercion.
The orthodox justification for such regulation of the contract of employment is found in the commonplace
slogan “inequality of bargaining power”, which is a troubling but important notion. The starting point is to
note that Adam Smith in The Wealth of Nations perceived that it would be the employer who would have an
upper hand in bargaining with employees.
“Labor and Monopoly Capital” (Harry Braverman)
- The worker enters into the employment agreement because social conditions leave him or
her no other way to gain a livelihood.
- The employer, on the other hand, is the possessor of a unit of capital which he is endeavoring to
enlarge, and in order to do so he converts a small part of it into wages.
- Thus is set in motion the labor process which, while it is in general a process for creating useful
values, has now also become specifically a process for the expansion of capital, the creation of a
profit.
- Having been forced to sell their labor power to another, the workers also surrender their interest
in the labor process, which has now been ‘alienated.’ The labor process has become the
responsibility of the capitalist.
- It becomes essential for the capitalist that control over the labour process pass from the hands of
the worker to his own. This transition presents itself in history as the progressive alienation of
the process of production from the worker; to the capitalist, it presents itself as the problem of
management.
“Economic Analysis of Law” (Richard Posner)
- The primary purpose of a union is to control the supply of labour so that the employer cannot use
competition among individual labourers to keep down the price of labour.
- The Wagner and Norris-LaGuardia Acts, which insulated most nonviolent union activity,
including strikes, from state or federal legal prohibition, was the decisive step in the emergence
of a national labor relations policy favorable toward labor monopolizing. The implementation of
this policy was in fact followed by a dramatic rise in wage rates in a number of industries.
Recall, however, that an increase in price brought about by a monopolization is likely to have
substitution as well as wealth effects. Employers attempt to substitute cheaper for costlier labour
(for instance, by relocating their activities to regions where unions are weak), capital for labour,
and white-collar for blue-collar workers.
“Promises to Keep: Securing Workers’ Rights to Self-Organization under the NLRA” (Paul Weiler)
-
-
A complete defence of collective bargaining… also requires a response to two traditional
objections: first, that organization of employees into cohesive groups seeking a better deal for
themselves imposes a deadweight loss on the economy and thus reduces the size of the economic
pie available to everyone; and second, that increased wages and benefits for union members are
obtained at the expense of unorganized workers.
o Benefits for the powerful segments of the work force come not out of capital’s share, but
rather out of the pockets of other workers, who suffer a decline in the real value of their
earnings.
Recent empirical research indicates that each of these lines of attack is largely unfounded.
Labour Relations
-
-
-
12
To some extent, increased productivity is a result of the much lower turnover that
characterizes a unionized work force. Seniority systems, fringe benefits for long-service
workers, and the availability of grievance procedures sharply reduce the rate at which
workers leave their jobs.
The resulting increased stability in the work force leads to fuller development of individual
skills and a greater cohesion among workers, both of which factors in turn increase
productivity.
There is good reason to believe that collective bargaining can be conducive to a more productive
labour market. Thus, unionization may actually generate a substantial part of the additional
income it brings to its constituents.
“Reconcilable Differences: New Directions in Canadian Labour Law” (Paul Weiler)
- Most industrial relations scholars believe that the true function of economic bargaining consists
in its civilizing impact upon the working life and environment of employees.
- An apt way of putting it is to say that good collective bargaining tries to subject the employment
relationship and the work environment to the ‘rule of law.’ Many theorists of industrial
relations believe that this function of protecting the employee from the abuse of managerial
power, thereby enhancing the dignity of the worker as a person, is the primary value of
collective bargaining, one which entitles the institution to positive encouragement from the
law.
Labour Relations
13
Constitutional Issues
Three types of Constitutional Issue
1. The Federal/Provincial Division of Powers in Labour Relations and Employment Law
2. The British North America Act, 1867 (1867, c. 3 (UK)) (now the Constitution Act,1867) provides
(in sections 96 to 100) that judges of the superior courts in each province must be appointed by the
federal government, and also gives those judges considerable security of tenure with a view to
protecting their independence. When modern provincial social legislation came onto the scene after
the Second World War, it was interpreted and applied by administrative tribunals freshly created for
that purpose by the provinces. The members of these tribunals did not enjoy the protections of
sections 96 to 100 of the Constitution, and a debate arose over whether they should therefore be
prohibited from enforcing rights and granting remedies which resembled the rights and remedies
traditionally enforced and granted by the superior courts. The leading case in this area was, and still
is: Labour Relations Board of Saskatchewan v. John East Iron Works Ltd., [1949] A.C. 134 (Judicial
Committee of the Privy Council).
3. The third major set of constitutional law issues — those raised by the Canadian Charter of Rights
and Freedoms — began to hit labour and employment law just as the section 96 issue was cooling
down. Charter cases have mostly involved the rubrics of freedom of association under section 2(d),
freedom of expression under section 2(b), have received a great deal of attention, but there is a
considerable division of opinion on the actual impact that they are having and will have in the
workplace. Each individual Charter case in the labour and employment area can probably best be
understood in the context of the specific aspect of that area to which the case relates.
The Constitution and Labour Law
The basic rule is easy enough to state: the provinces have jurisdiction over labour and employment matters
in industries that are within provincial legislative authority, and the federal government has jurisdiction over
labour and employment matters in industries that are within federal legislative authority.
Toronto Electric Commissions v. Snider [1925] 2 D.LR. 5.
o This case changed labour law from being largely a federal area of regulation to
being mainly provincial jurisdiction.
o FACTS: The federal government had decided to appoint a conciliation board under the
Industrial Disputes Investigation Act to deal with an industrial dispute involving Toronto
street railway employees. The employer sought an injunction to block the appointment of
that board, arguing that the federal government had no constitutional authority to regulate
labour relations in areas of economic activity within provincial legislative jurisdiction.
o RATIO: The Judicial Committee held that labour and employment relations between
Toronto Electric Commissioners and their employees were a matter of “property and civil
rights” under section 92 of the British North America Act, and therefore fell within
provincial competence.
Labour Relations
14
Federal Jurisdiction
Today, this means that only about 10% of the Canadian work force is regulated by federal legislation.
- The principal areas over which the Canadian federal government exercises labour relations
jurisdiction include:
 radio and television broadcasting,
 aviation,
 postal services,
 inter-provincial and international transport (such as cross-border trucking,
railways, marine ferry services, and shipping),
 nuclear power and uranium mines,
 banking,
 long shoring and
 the three northern territories.
- The federal government also retains jurisdiction over its own employees, including those of
federal boards, agencies and Crown corporations.
Canadian Pacific Railway v. A.G. (B.C.), [1950] A.C. 122 (PC) (The Empress Hotel Case)
- FACTS:The Judicial Committee had to decide whether employees of a Victoria hotel owned and
managed by a national railway company came under federal or provincial employment standards
legislation. The railway company’s transportation operations were clearly in the federal sphere
because of their inter-provincial nature. The company argued that its hotel, which was adjacent
to its Victoria railway station and received many of its passengers as guests, was an integral part
of its railway operation.
- Judicial Committee disagreed. It ruled that a company can carry on more than one undertaking,
and that those undertakings may fall into different constitutional spheres.
- RATIO: The test is whether the operations are “integral and vital to the company’s primary
undertaking”.
Construction Montcalm Inc. v. Minimum Wage Commission, [1979] 1 S.C.R. 754.
- FACTS: Montcalm was a Quebec construction company that had a series of contracts with the
Federal government to build runways on federal Crown land for the new Mirabel Airport near
Montreal. The Quebec Minimum Wage Commission initiated an action against Montcalm to
recover wages, vacation, and holiday pay and other employment benefits on behalf of the
company’s employees. Montcalm challenged the application of provincial employment law to
construction work done on federal Crown land for a federal undertaking.
- The majority held that doing work on federal Crown lands did not necessarily constitute an
extraterritorial enclave where only federal labour law applied.
- RATIO: Each case depends on whether the work is integral to the federal undertaking.
- In this case, the construction of the airport was far enough removed from aviation and aerial
navigation to stand on distinct footing.
A first nations reserve is not considered an island of exclusive federal jurisdiction.
- A band council office, a health clinic, and a school would normally come under federal labour
relations authority, as each of them is an essential aspect of community life.
- However, a private business operating on the reserve (such as a store or gas station) would likely
fall under provincial labour relations jurisdiction
- see Four B Mfg Ltd. v. United Garment Workers of America (1979), 102 D.LR. (3d) 385
(S.C.C); and P.S.AC v. Francis (1982), 139 D.L.R. (3d) 9 (S.C.C).
Labour Relations
15
Re: Windsor Airline Limousine Services (c.o.b. Veteran Cab Co.), [1999] O.L.R.B. Rep.
Nov/Dec. 1125
o FACTS: A Union had applied to the Ontario Labour Relations Board for certification as
bargaining agent for the drivers who worked for a taxi company in Windsor, ON, on the
American border. The company challenged the constitutional jurisdiction of the OLRB,
arguing that its labour relations operations were federally regulated because taxis went
across the border into the United States.
o Half of the drivers had chosen to obtain the necessary clearance from the company for
trips across the border, but they were not compelled, as dependent contractors, to be so
licensed, nor were they required to accept extra-territorial calls.
o RATIO: The test is whether or not the work outside the province can be
characterized as “regular and continuous”.
o In this case, drivers were not required to go across the border and could opt out of crossborder calls. Therefore the Board decided that the work was not characterized as
“extending or connecting” across the border.
Murrin Construction Ltd. v. Construction & Specialized Workers’ Union, Local 1611 (2002),
80 C.L.R.B.R. (2d) 42 (B.C.L.R.B.)
- The governing test in non-transportation cases
- FACTS: A union had applied to the British Columbia Labour Relations Board to represent
employees of a construction contractor that did track statabilization and maintenance work for
the Canadian National Railway (CN), a federally regulated company. The contractor argued that
its labour relations fell within federal jurisdiction. The vast majority of its work — at least 80
percent annually over a period often years — was done for CN in British Columbia. Nearly all of
the work it did on other construction projects fell within provincial jurisdiction, and many of the
skills of its employees were readily transferable to those projects. Its work for CN involved the
construction of retaining walls to protect trains against rock slides, as well as grade stabilization
below track level to prevent the deterioration of the rail tracks. CN’s ability to run its trains in
British Columbia safely and on schedule depended on the quality of Murrin’s track work.
- ISSUE: Whether the work performed by Murrin and its employees is so vital or essential to the
effective operation of the railway as to bring them within the ambit of the Canada Labour Code.
- Insofar as the distinction between construction and maintenance may be helpful in resolving the
case, it seems to me that the work performed by Murrin is closer to the maintenance of CN’s
operations than to the functions of a general construction company.
- It is CN’s dependence upon Murrin that is important, not vice versa.
- Union’s application was dismissed.
Labour Relations
16
Chapter 2 - The Contract of Employment: Common Law
Regime of Employment
How is a labour contract different then a regular contract?
-
A labour contract generally utilizes the regular principles of contract law: there has to be
consideration, acceptance and offer.
A labour contract is distinct from general contract law in 2 main ways:
1. Policy Component: There is a strong policy component with regard to the interpretation of
employment contracts. For example: If we leave it up to the free market wages will be too
low.
2. Incomplete By Design: It is often the case that with regard to employment contracts that
the contracts themselves are not lengthy and there is no lengthy process of working out the
contract. Often the contract is not written down at all, it is verbal, or it is a brief standard
form that is drafted and employers get their employees to sign here. Often the employer’s
lawyers draft the contracts quickly, and the employee’s don’t even have representation.
Employers also want the contract to be flexible, they don’t want to outline every possible
situation that could occur. Courts have filled in the void, they have given themselves the
discretion to say what the employers meant.
“The employment contract: Was it a contract?” (Alan Fox)
- The employment contract...a good deal less then a contract
- The legal construction which was put upon the contract left it virtually unrecognizable as
contract. Also an inequality of bargaining power. Both agents not really free to contract re
employment.
Employee Status
Difference between Employees and Independent Contractors
- Independent contractors not covered under common law of employment
- Note discussion of difference b/w dependent contractor and independent contractor in the
Toronto Star Case.
Relationship between Human Rights & Development of the CL in relation to
Discrimination
Seneca College of Applied Arts and Technolog v. Bhadauria [1981] SCC - Laskin C.J.C.
- FACTS: East Indian woman applied to Seneca 10 times for a position, but never received an
interview. She was a highly educated mathematician. She argued that the people granted those
jobs had equal too or lesser qualifications than she did, but she was East Indian. She argued that
she was discriminated against at the point of recruitment.
- So Bhadauria’s lawyers argue that there is a tort of discrimination that will apply at the hiring
state. In the alternative they argue that there ought to be a civil cause of action for breach of a
statute.
- HELD: Appeal allowed: OCA decision overturned, decision dismissing the action restored.
Labour Relations
-
-
-
17
RATIO: Tort of Discrimination does not exist
Breach of statute argument: court says there cannot be a civil action based on breach of a statute
b/c the human rights code is an expression of the states desire to channel these sorts of
complaints into the statute, so the state has expressed it’s will that allegations of discrimination at
the point of hiring should be dealt with by the human rights commission
The state has therefore usurped the ability to develop new causes of action that recognize modern
conceptions of discrimination.
A refusal to enter into contract relations or a refusal to even consider entering in to
contract relations has not been recognized at common law as giving rise to any liability in
tort.
NOTE: this is a civil action and Ms. Bhadauria did not file a complaint under the Human
Rights Code
Rules of Construction of the Employment Contract
Incorporation of Ancillary Documents into Employment Contracts
Ellison v. Burnby Hospital Society (1992) (B.C.S.C.)
- FACTS: Ellison worked for BHS for 25 yrs, first as Nurse, then she was promoted to Director of
Nursing. Benefits Policy was introduced 21years after Ellison started working for BHS. It
included a 3 month notice period. Ellison testified that she did not know that the benefits policy
provided for termination and severance.
- ISSUE: Was the BHS’s benefits policy part of the employment contract?
- HELD: The Benefits policy was not part of the employment contract
- RATIO: A policy or benefits package can form part of the contract of employment if it is clear
that the employer and the employee intended it to do so
- Before a policy can form part of a contract of employment there must be evidence that the
policy was accepted by both the employee and the employee as a term of the employment
contract
- The onus is on the party seeking to rely on the policy as a term of the contract.
- One party cannot impose a contractual term on the other
- Just because an employee continues to work after learning of a policy does not mean that they
accept it as part of their employment contract (Rahemtulla v. Vanfred Credit Union)
- Just because an employee was aware of a policy or accepts some benefits (health benefits) under
the policy does not mean that they are accepting it as a term of their employment contract
- REASONS: The policy was simply given to the plaintiff w/out any request that she read it or any
other indication that D was relying on it as part of the contract of employment.
Labour Relations
18
Implied Contractual Terms – Employment K Silence
Two types of implied terms
1. Implication in Law
Here the test involves the judges engaging in a public policy debate – instances where it “just makes
sense”. This has nothing to do with the parties intentions.
2.
Implication in Fact
Terms in fact are supposed to be based on the presumed but not stated intention of the parties.
Fictionalization of the process.
- TEST: Officious Bystander Test: If some neutral bystander had asked parties when they were
making the contract whether a certain term had been intended to be implied they would
obviously have said ‘yes’
Most often, judges claim that there is an implication of a term in fact in the employment scenario
McNamara v. Alexander Centre Industries Limited (2001) (OCA) – MacPherson J.A.
- FACTS: McNamara has a partial disability for which he needs some time off. Employer fires
him. McNamara sued for wrongful dismissal re: improper notice. He wins at trial for 26 months
24 reasonable notice in damages and 2 months Wallace damages b/c employer was hostile.
Employer conceded that there was wrongful dismissal but appealed on the issue of the amount of
damages.
- For a significant chunk of the 26 month period, McNamara was receiving disability benefits
from an insurance policy paid for by the employer. He had qualified for disability benefits before
he was fired. He received 163,000 in disability.
- McNamara claimed that, at the time he entered into the employment contract, he accepted lower
pay in exchange for a good benefit policy. He said that he gave consideration to get the insurance
policy. He has partially paid for the premiums by taking a lower wage.
- ISSUE: Does the employer get to subtract the $160 he has been paid by the insurance company.
Or, does the employee get both. Note that the employer only paid premiums to the insurance
company, the 163 in disability did not come directly out of the employer’s pocket.
- HELD: OCA agrees with trial judgment: McNamara got to keep both!
- RATIO: Sylvester (SCC): That case tells us that where the employment contract is silent we have
got to infer the intention of the parties.
- Court has to go back in time and decide what a REASONABLE employee and a RESONABLE
employer would have decided if they had had the discussion at the time the contract was entered
into.
- REASONS: Sylvester: also says that “the parties to an employment contract can agree that the
employee is to receive both disability benefits and damages for wrongful dismissal. There may
also be cases in which this intention can be inferred”
- If the Employer gets to deduct the disability payment, the er gets a huge windfall b/c instead of
having to pay the $420K total in reasonable notice damages and Wallace damages, they would
save $163K.
- The court seems to think it is significant that the employee in this situation took a lower wage in
exchange for better disability benefits. And this was accepted at trial as fact!
- By imagining the reasonable er, the court ignores the differences in bargaining power that might
have existed at the time the contract was entered into. The court considers what a reasonable
Labour Relations
-
19
employer would do, not the likely true scenario that an employer using their power to influence
contractual negotiations
Prof says that this judge became somewhat of a maverick in defending the rights of ees.
Historically: Most of the implied terms in employment law date back to the pre-industrial era and are there
to protect Employers
- In the early years of industrialization, intense class differences meant that employees didn’t have
the resources to sue employers. Occasionally, an employee would manage to sue their employer
and on a few occasions the Privy Council dealt with employment law cases. The judges clearly
sided with the employers (class theory prevailed).
- Amongst these implied terms was loyalty, to act in good faith for the employer, to respect the
employer, the duty of fidelity etc.
Secretary of State of Employment v. Associated Society of Locomotive Engineers and
Firemen and Others (no.2) [1972] (English C.A.)
- FACTS: Unionized workplace decides to put pressure on employer by telling employees to look
at work manual and do only the bare minimum (work to rule). The railway essentially had to
shut down because the workers were only doing the bare minimum.
- The employees were not violating the employment contract, nor were they violating the work
manual.
- HELD: Court of Appeal said that the employees were in breach of contract.
- RATIO: The English Court of Appeal said that there is an implied term to “serve the employer
faithfully with a view to advancing the employer’s commercial interests”.
Stein v. British Columbia (Housing Management Comission) (1992) (B.C.C.A.)
- The courts in Canada are still asserting that there is an implied duty of fidelity on the employee
- Court: ‘The employer is the boss and it is an implied term of every employment contract that...
the employee must obey the orders given to him.
Labour Relations
20
Termination of the Employment Contract
Wrongful Dismissal
Dismissal is wrongful at common law where:
(a)
The employer dismisses the employee without alleging cause and without giving notice or
wages lieu of notice as required by the express of implied terms of the employment contract
(b)
the employee quits in response to repudiatory breach of the employment contract by the
employer and sues for damages (constructive dismissal)
(c)
the employer summarily dismisses the employee, alleging cause that is not proved
(d)
The employee is dismissed in breach of a statutory rule governing the employment
relationship, or in breach of the administrative law duty of procedural fairness if the employment
relationship is a statutory one to which the principles of administrative law apply.
Reasonable Notice of dismissal – Implied Term
One implied term that favours employees is REASONABLE NOTICE
- Applies to both parties (employees also have to give reasonable notice when they quit)
- Two exceptions:
o Where the employer has cause for dismissal
o Where there is an express term in the employment contract (however courts may not
uphold contract provision if they deem it unreasonable)
- Common Law notice period is usually longer than the Employment Standards Act notice period.
- Competing policy concerns regarding reasonable notice:
o Courts want to protect employees during a particularly vulnerable period in their life. The
courts have attempted to limit the externalities (social costs) from these displacements.
o The competing policy concern is that we need to permit employers to restructure and run
their business efficiently. Unproductive employees should be allowed to be terminated.
What is reasonable notice?
- Canadian courts do not look at the parties intentions when they are determining what is
reasonable notice, instead they determine what is reasonable notice by reference to a list of
factors.
Bardal v. Globe and Mail
- TEST: The reasonableness of notice must be decided with reference to each particular case,
having regard to the character of the employment, the length of service of the servant, the age of
the servant and the availability of similar employment, having regard to the experience, training
and qualifications of the servant.
- Common law distinction b/w managerial and non-managerial reasonable notice: Test: if you are
non-managerial you get at the most 12 months notice. If you are a manager, you can get a
maximum of 24 months notice. This is the rule that is challenged but maintained in Cronk
Labour Relations
21
Cronk v. Canadian General Insurance Co. (1994) Ont. Gen. Div. (1995 Reversed O.C.A.)
- FACTS: Ms Cronk was a non managerial clerk. She worked for the Employer from 1958 until
she was fired at age of 55 in 1993 (missed 6 years in the middle to have kids). She had about 30
years service as a clerk for the Employer then was fired due to restructuring (no cause).
- ISSUE: The Employer had to figure out how much notice to give her. They say, 'you’re only a
clerk', you get no more than 12 months according to CL rules.
- Because she missed 6 years to have kids, they said she shouldn’t get the full 12 months, so they
give her 9 months. Cronk sued for 20 months notice.
- Judgment of Ont. Gen. Div. (MacPherson J.)
o The distress experienced by a clerk is no less than a management.
o Women experience particular hardship b/c they are paid less and they generally have to
take time off to have kids. And, they have a hard time making it into the management
category b/c there is still a glass ceiling.
o There is also a clear link btw how long someone remains unemployed and how much
education they have. The more education you have, the less time you'll be unemployed.
o Ordered 20 months notice.
- Judgement of Ont. C.A.
- HELD: Overturns trial decision. It puts it back to 12 months (employer’s original offer).
Employers rely on the CL rule and the courts shouldn’t change it.
- RATIO: If you are non-managerial you get at the most 12 months notice. If you are a manager,
you can get a maximum of 24 months notice.
Express Notice Provision in Contract
An employer can limit the amount of notice that they have to give an employee by placing an express term
in the contract and courts typically will uphold these provisions unless they deem them unfair.
Devices used to defeat written contractual terms
The most common devices used to defeat express contractual provisions that are unfair:
- Lack of mutual consent
- Violation of employment standards legislation
- Pre-contractual fraudulent or negligent misrepresentation by the other party
- Invalid variation of an existing employment contract w/out consideration
- Strict contra proferentum interpretation of the clauses (where a provision's meaning is
ambiguous, it should be read against the party who wrote it)
- Unconscionability
Nardocchio v. Canadian Imperial Bank of Commerce (1979) N.S.R. (S.C.T.D.)
- FACTS: In 1966, Nardocchio was hired as a teller at CIBC. In 1978 she was given a better job
and had conflict with a co-worker. She wanted to be moved to another position or have the other
employee moved, but the employer decided to fire her. She was dismissed for no reasons.
- The CIBC pointed to a clause in the contract that said that provided for termination on 3 months
prior written notice.
- She sued for wrongful dismissal alleging that she has not been given reasonable notice. Her
lawyers argued that the three months notice was a harsh term.
- HELD: The 3 month term is a harsh term: reasonable notice in these circumstances would be 1
year.
Labour Relations
-
-
-
22
Reasons:
o Fair Contract: Court says that contract was fair when it was agreed too: three months is
reasonable notice for a low level clerk.
o Harsh Term: Court looks at the effect of the term at the moment of dismissal rather
then at the moment the term was agreed too.
It’s possible for a term that was fair when agreed too to become harsh over time as circumstances
change.
Factors considered by court when determining effect of term:
o She was a long term employee (12 years)
o She had done good work and had various promotions.
o She was a good and loyal employee at the CIBC for 12 years. (note that being a good
employee is not one of the factors in the Bardal test)
Court also comments that while she signed the contract, she most likely didn’t read the specific
terms and the court is not convinced that she knew what she was signing.
Note: Her lawyers argued that: It's an unfair term because it resulted from inequality of
bargaining power. The court avoids this argument by saying that the contract was fair at the
time it was entered into, so not necessary to look at inequality of bargaining power.
Employers will often throw in unreasonable notice terms in the employment contract b/c it may discourage
employees from fighting.
Labour Relations
23
Constructive Dismissal
This occurs when an employer breaches a fundamental term of the employment contact. When that happens,
the employee can treat the contract as having come to an end. It does not matter that the employer may not
have intended to breach the contract or constructively dismiss the employee.
Hill v. Gorman Ltd., [1957] Ont. C.A.
- FACTS: The Hill was an salesman employed by Gorman. Gorman became concerned about
customers not making good on their accounts and announced to it’s salesmen that it was setting
up a fund to cover bad debts by deducting 10% of each sales commission that would before go to
the salesman. Hill doesn’t agree to this, but he keeps working for another year or so. When his
employment is over, he sues Gorman to recover the money that his commissions contributed to
the bad debt fund.
- HELD: Hill entitled to insist on the terms of original employment agreement. Gorman has to pay
Hill back
- RATIO: An employee does not accept an attempted variation to his contract of employment
simply by the fact alone of continuing in his employment. Continuing to work is not implied
consent to new term
- In an employer wants to change a term in an employee’s contract then they either have to get the
employees consent or they have to terminate the original contract with proper notice and then
offer the employee the new contract with the new term.
- It is possible to accept a new term directly or indirectly, but simply continuing working is not
enough
- Reasons: There was nothing in the original contract that Hill did agree to about the 10%
deduction, there4 the employer has clearly breached the original employment contract by holding
back part of salary.
- This comes back to the bargaining power issue. If the employee should not have to quit
whenever the employer wishes to changes the terms of his contract. We want the employer to
abide by the terms of the contract.
- Hill made it clear in this case that he didn’t accept new term.
Farber v. Royal Trust Co., [1997] SCC
- FACTS: Real estate company was restructuring. Farber was a regional manager for the company
responsible for supervising a number of branches and staff and was paid decently. The company
was eliminating the position of regional manager so they wanted to transfer Farber to supervise a
single branch that was actually doing quite poorly and to not pay him salary but to only pay him
commission. Company said that if he didn’t show up for work at the new job they would assume
that he had resigned. Farber did not show up to this new position when he was supposed to and
sued for wrongful (constructive) dismissal.
- HELD: there was a constructive dismissal and Farber gets the one year notice
- RATIO: The test: judge must ask whether a reasonable person in the same situation as the
employee would have felt that the essential terms of the employment contract were being
substantially changed.
- For an employee to be constructively dismissed the court must find that the employer
unilaterally substantially altered the essential terms of the contract.
Labour Relations
-
-
-
24
What is relevant is what was known by the employee at the time of the offer and what ought to
have been foreseen by a reasonable person in the same situation. (doesn’t matter what actually
happen after offer)
By unilaterally attempting to make substantial changes to the essential terms of the employment
contract the employer is ceasing to meet its obligations and is therefore terminating the contract.
An employer can make some changes to the contract but the extent of permissible unilateral
changes will depend on the contract itself.
It is not necessary for the employer to make substantial changes in bad faith for there to be
constructive dismissal. Bad faith will affect the amount of damages awarded to the employee
Reasons:
o A demotion is a substantial change to an employment contract
o A pay cut is a substantial change to an employment contract
o A change in the method of calculating an employee’s income is a substantial change.
NOTE: The branch that Farber was going to be sent to actually did much better than they
thought. Had he gone there, he may not have lost all that much money at all. The employer tried
to say that this made it simply a minor breach of contract and not a substantial breach b/c it
would not have led to a cut in his pay. The trial judge accepted that argument. The problem with
that is that Farber could never have known that the branch was going to be successful. The SCC
says, we cannot look at what actually happened b/c Farber could not have known what would
have happened at this branch. He could only have guessed, based on the knowledge he had.
Summary Dismissal for Cause or Dismissal Without Notice for Cause
Summary dismissal: If an employee commits a serious breach of the employment contract, the employer can
treat the contract as being terminated by the employee, resulting in the employer not having to pay
reasonable notice.
-
The breach could be a breach of the express term as well as the breach of an implied term.
The CL courts have created many implied terms: e.g. honesty, fidelity, good service,
commitment to commercial objectives of employer.
McKinley v. BC Tel [2001] SCC Iaccobucci
- ISSUE: Whether any act of dishonesty by an employee amounts to cause for summary dismissal,
or if it needs to be a really serious case of dishonesty.
- FACTS: McKinley was a controller of BC TEL (senior management). In may of 94, he had
serious problems with blood pressure. Doctors say he needs to take some time off work. A few
months later, July of 94, he told his employer that the doctor told him he could return to work,
but had to be put into a less stressful job. The employer looked for a different position, but could
not find one. In Aug of 94, the employer fired him.
- McKinley had 17 years of service and was 48 years old.
- The employer alleged that it had cause for summary dismissal. Turns out that McKinley's doctor
had told him that he could return to his old job as long as he took a beta blocker. McKinley never
told his employer this. The employer says he was dishonest by failing to disclose that he could
return to work on the beta blocker.
- BCTEL said that once an employee is dishonest, the whole employment relationship breaks
down. McKinley says that he felt that the doctor was only looking at beta blockers as a last
resort, but the preference was to find a position that he could do without taking drugs.
- HELD: jury award is restored in terms of notice, but the aggravated damages struck
Labour Relations
-
-
-
-
25
Lower Court: Trial judge says that it is not any instance of dishonesty, but it has to be a serious
act of dishonesty, one which disrupts the employment relationship beyond repair.
The jury finds on the side of McKinley and awards lots of notice and some aggravated damages
RATIO: Dismissing an employee on the grounds of dishonesty is a question that requires an
assessment of the context of the alleged misconduct.
o Just cause for dismissal exists where the dishonesty violates an essential condition of the
employment contract, breaches the faith inherent to the work relationship, or is
fundamentally or directly inconsistent with the employee’s obligations to his employer
This is a factual question to be determined by the jury and thus the trial judge should instruct the
jury:
1) whether the evidence established the employees deceitful conduct on a balance or
probabilities
2) and if so, whether the nature and degree of the dishonesty warranted dismissal
An effective balance must be struck b/w the severity of an employee’s misconduct and the
sanction imposed. (lesser sanctions for misconduct than dismissal can imposed if appropriate)
Reasons: The court reviewed the jurisprudence on this issue up to present found two lines of
cases:
o First approach in previous cases: context matters. It's not every single incident of
dishonesty that is grounds for summary dismissal. Dishonesty has to be serious enough to
make continuation of the relationship not longer viable.
 The SCC says that the first line is preferable: There has to be a threshold of
seriousness. Did it give rise to a breakdown in the employment relationship?
o The second line of cases says that ANY dishonesty is grounds for summary dismissal.
Court notes that these cases have all dealt with very serious dishonesty in their respective
fact scenarios.
Note: Pg. 154: They recognise the inequality of bargaining power in employment relationship.
The court is saying that the CL need to protect employees because there is an inequality of
bargaining power.
Procedural Fairness
- Canadian courts have not yet held that an employer is under any duty to act with procedural
fairness in dismissing an employee
- The administrative law duty of fairness only applies to public or quasi-public employees where
the duty is applicable.
Remedies in Wrongful Dismissal cases
CL remedies should be compared to remedies available under the Labour Relations Act, Collect. Agreemts.
CL almost always refuses to reorder reinstatement as a remedy.
“Recent Developments in the Law of the Employment Contract: Continuing Tension between the
Rights Paradigm and the Efficiency Paradigm” (Geoffrey England)
- Courts think that it is wrong and impractical to order an employer to reinstate an employee where
the employer no longer has trust and confidence in the employee.
- There are rare circumstances where the court believes that the employer has full trust and
confidence in the worker, in the non-unionized context.
Labour Relations
-
26
Employees often suffer damages when they are fired beyond the pure monetary costs of being
fired, such as emotional breakdowns, stress, mental distress, loss of self-esteem, etc.
The question that the law has had a problem with: should employees be entitled for damages for
those sort of injuries: aggravated damages, punitive damages.
There are policy concerns: If we allow them to recover these damages, firing employee becomes
much more expensive for the employer. However, these damages are real. There may be strong
arguments for passing on some of the costs to the employer. Why should society bare all that
cost and not the employer?
Damages in a Wrongful Dismissal Case
Historically: Damages suffered from the fact of being dismissed are never recoverable (e.g. - harm to
self-esteem, nervous breakdowns, stress, etc). However, courts have said that you may be able to get
damages for harm suffered from the manner of dismissal; but, only if those damages arise from an
independent breach of the employment contract.
Vorvis v. Insurance Corporation of British Columbia
- Was the leading SCC case before Wallace
- FACTS: In this case the employee was fired, and then claimed that he suffered a whole bunch of
other losses: he had a nervous breakdown, became an alcoholic, etc.
- The court said an action for wrongful dismissal is an action for reasonable notice. You
cannot get damages for things like mental suffering, stress, injury to personal self esteem, unless
those damages flow from an independent breach of contract (a breach of another term other then
reasonable notice term)
- In order to get other damages such as Aggravated Damages, the court says there has to be an
independent wrong, a wrong that involves a breach of a separate term of the contract, or a tort.
- So the question is always: has an independent term of the contract been breached that is
not the reasonable notice term.
o For example: if there is a clause that the employer was going to be “sensitive” and the
employer breaches this. BUT: most employment contracts do not include other clauses
that could be breached by the employer. So most employees that try to get other damages
from a wrongful dismissal do not actually get these damages, because there isn’t another
clause in the employment contract that the employer has breached.
Duty to be decent and civil to the employee: The courts have resisted making this duty a two way duty.
Employers do not at present have a duty to be decent and civil to their employees, but THIS IS
CHANGING. A couple of courts have recently held that employers do have this duty.
Wallace v. United Grain Crowers Ltd. [1997] SCC
- FACTS: United Grain Growers tries to recruit Wallace from his current employer. Wallace is
reluctant to go because he is 45 and wants job security. United Grain Growers says that as long
as you perform your duties, then there is no reason why you cannot stay with us till you retire.
He joins united grain growers in 1972. Wallace is fired in 1986 with no reasons provided to him.
Wallace sues them for wrongful dismissal. The employer responds that they fired him for cause,
they say he was incompetent. Right at the beginning of the trial they drop the position that he
was incompetent.
Labour Relations
-
-
-
-
-
-
-
27
So Wallace claims wrongful dismissal: so he wants reasonable notice, but he ALSO CLAIMS:
aggravated damages: he says that he had a mental breakdown because of being fired, and he says
that a rumor that he was incompetent spread around the industry.
Wallace’s lawyers argue that there was a “Bad Faith Discharge” So they argue that there is a
new Tort of “bad faith discharge” that the SCC should recognize
Wallace’s lawyers also argue that the court should imply a new term: the employer can only
dismiss for cause or for legitimate business reasons. They try to get the court to imply a new just
cause term in the employment contract
Remember: According to the law at the time Wallace would have had to say that there was an
independent wrong in order to get aggravated damages. The law at the time was that an employer
didn’t have to have any reason at all, all they had to do was give reasonable notice.
Trial Judge: The Trial Judge orders 24 months notice. Trial judge also orders aggravated
damages
Manitoba Court of Appeal: They reduce the notice to 15 months. They say NO aggravated
damages
HELD SCC: Wallace ends up getting 24 months for reasonable notice, but this notice now
includes some notice time for bad faith dismissal notice period
RATIO: Court upholds the Vorvis Test: there need to be an independent wrong in order to get
aggravated or punitive damages
Court can order increased damages for “Bad Faith in the Manner of Dismissal” and in doing so
extend the reasonable notice period.
The List in the Bardal v. Globe and Mail case that is used to determine the reasonable period of
notice was not exhaustive. The court adds a new factor to be considered: Bad faith in the manner
of dismissal. Court also comments that a factor is whether the employee has been induced to
leave pervious secure employment.
“Injuries such as humiliation, embarrassment and damage to one’s sense of self-worth and selfesteem might all be worthy of compensation depending on the circumstances of the case. In
these situations compensation does not flow from the fact of dismissal itself, but rather from the
manner in which the dismissal was effected by the employer.”
“Bad faith conduct which affects employment prospects may be worthy of considerably more
compensation than that which does not”
Reasons:
o Court says the only breach of contract by the employer in this case was the breach of the
reasonable notice term
o Court dismisses Both of Wallace’s arguments: So no new tort and no new implied term in
the contract.
o The court basically says that if the legislature wants a new tort or an implied term they
can legislate on it. Recognizing either the new implied term or the new tort would be too
disruptive to the existing common law of employment law.
o The court then comes up with a way to punish the employer and give Wallace more
damages: The Court says: that even though there isn’t a breach of contract or a tort: the
court can still order increased damages for “Bad Faith in the Manner of Dismissal” but
this isn’t a breach of contract or a tort according to the court.
o To ensure that employees received adequate protection employers ought to be held to an
obligation of good faith and fair dealing in the manner of dismissal, the breach of which
will be compensated for by adding to the length of the notice period.
The Minority in Wallace:
Labour Relations
-
-
28
o They said to just imply a term that the employer has to be reasonable and decent and then
give the employee damages for breach of this term
NOTE: The SCC doesn’t say anywhere in Wallace that the 24 month cap on reasonable notice
still applies, but in later decisions the courts have held that this cap does still apply
SO the problem with this decision is that if someone is already entitled to 24 months notice, but
then they were treated badly there is no room for them to get any thing else. You can only get a
max of 24 months notice.
Court still wants to have a cap on notice, because they don’t want to be to disruptive to
employment law
In this decision the SCC acknowledges that there is not necessarily equality of bargaining
power in an employment contract situation. The court recognizes that employees are
vulnerable and that the common law has to protect them. They recognize that it is not just a
regular contract with equal bargaining power. That is why the SCC creates the authority to
extend the reasonable notice period in situations where the employer acted in bad faith.
Labour Relations
29
Chapter 4 - Status Under Collective Bargaining Legislation
Not everyone is entitled to bargain collectively under prevailing labour relations legislation. This privilege
is reserved for “employees” — a term that is increasingly difficult to define given the growing variety of
contractual arrangements in the labour market
-
-
-
-
-
-
-
Some people who are employees by any definition may be legally ineligible to bargain
collectively.
Professions, agriculture, and domestic service — they may be entirely excluded from statutory
collective bargaining because, for good or bad, legislatures have concluded that it is
inappropriate or unworkable for them.
Even if a person is clearly an employee eligible for inclusion in collective bargaining, it is not
always clear who his or her legal employer is.
In order to fall within the statutory definition of a trade union, and therefore be eligible to acquire
the privileges and responsibilities of a bargaining agent under labour relations legislation, an
organization must have been formed for purposes that include collective representation of its
members vis-à-vis their employer.
There are very real limits to the effectiveness of our collective bargaining laws in reducing
income disparities in society. Will unions be able to organize the growing number of highly
skilled knowledge workers employed in organizations where managerial authority is less clearly
defined?
An even greater challenge for unions is what to do about unorganized workers in the expanding
secondary labour market. As large firms break down into much smaller production units, the
attachment of collective bargaining rights to the individual firm — a cornerstone of our present
system — may further limit employee bargaining power.
Perhaps it is time to re-examine the assumption that access to collective bargaining should
depend on a proximate relationship with a particular employer, and to look instead to the
worker’s attachment to a particular industry.
If the workers concerned are not covered by labour relations statutes, they may be covered by
special legislation. This is the case, for example, with artists and performers who are subject to
the federal Status of the Artist Act. Doctors and legal aid lawyers may operate under special
bargaining and dispute resolution procedures established by statutes, regulations, agreements
between the government and professional bodies, or unwritten understandings.
In the absence of such arrangements, collective activities are regulated by the general law of the
land.
Today, however, greater union participation in corporate management, and an increasing
employee ownership stake in some unionized companies, raises questions about whether it is still
appropriate to require an arm’s length relationship between unions and employers.
Labour Relations
30
Who Is An Employee?
National Labor Relations Board v. Hearst Publications Inc. (1944), 322 U.S. 111 at 120-32.
- FACTS: The United States National Labor Relations Board had ordered certain newspapers in
the Hearst chain to bargain collectively with the Los Angeles Newsboys Local Industrial Union
No. 75. The board’s order was quashed by a federal appeals court on the basis that the newsboys
were not “employees” within the meaning of the National Labor Relations Act (the Wagner Act),
and that the employer therefore was not required to bargain with their union. In the following
judgment, the United States Supreme Court reversed the appeals court.
- ISSUE: Whether the newsboys are “employees”
- RATIO: In short, when the particular situation of employment combines these characteristics, so
that the economic facts of the relation make it more nearly one of employment than of
independent business enterprise with respect to the ends sought to be accomplished by the
legislation, those characteristics may outweigh technical legal classification for purposes
unrelated to the statute’s objectives and bring the relation within its protections.
- The question comes down therefore to how much was included of the intermediate region
between what is clearly and unequivocally “employment,” by any appropriate test, and what is as
clearly entrepreneurial enterprise and not employment.
- The mischief at which the Act is aimed and the remedies it offers are not confined exclusively to
“employees” within the traditional legal distinctions separating them from “independent
contractors.”
- HELD: The Labour Board found them to be employees because they:
o work continuously;
o rely upon their earnings for the support of themselves and their families;
o wages influenced in large measure by the publishers;
o hours of work and their efforts on the job are supervised; and
o Sales equipment and advertising materials is furnished by the publishers.
The record sustains the Board’s findings and there is ample basis in the law for its conclusion.
Competition Act
There is a tension between the potential scope of collective bargaining and the Competition Act’s Section
45(1) which makes it illegal for persons to form combinations that would unduly restrain or injure
competition.
- There is a risk that section 45 could prohibit certain union tactics, such as strikes and picketing,
as concerted activity designed to restrain or injure competition in the supply of services.
- However, section 4 of the Competition Act provides a general exemption for “combinations or
activities of workmen or employees for their own reasonable protection as such workmen or
employees” (section 4(1)(a)), and also provides a more specific exemption for arrangements
“pertaining to collective terns and conditions of employment” (section 4(1) (c))
The tension is most relevant when dealing with Dependent Contractors.
Labour Relations
31
Dependent Contractors
Labour boards and courts have constantly struggled with the question of the distinction between an
“employee” and an “independent contractor.”
-
-
Courts had applied the “fourfold test,” which is discussed in Winnipeg Free Press (not assigned
reading)
The test laid out the following four factors:
o Control of the relationship;
o Ownership of the tools;
o Chance of profit; and,
o The risk of loss.
Some Canadian legislatures adopted “dependent contractor” provisions, which extended the
reach of the term “employee” (for collective bargaining purposes) to cover some of the most
problematic and marginal parts of the universe of independent contractors.
o Ontario Labour Relations Act, 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, 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 resembles the relationship of an
employee than that of an independent contractor.
Toronto Star Newspaper, Application for Certification O.L.R.B. (2001)
- FACTS: Certification application by union to represent Toronto Star newspaper carriers. 80%
vote in favour of unionization.
- ISSUES: Employer argues they are independent contractors, not able to be represented by a
bargaining unit. Union argues their relationship is more like that of employee and they have a
right to be represented by a union.
- What critically distinguishes the two ideal types is the degree of economic dependence
which each has upon their employer.
- The origin of the notion of "dependent contractor" in the Act is well explained in AIRLINE
LIMOUSINE [1988] OLRB Rep. March 225 at 240:
o “Individuals could be excluded from collective bargaining merely because the FORM of
their relationship might not resemble that of "employer-employee", even though in
substance they might be just as controlled by and economically dependent upon the party
using their services as any employee…individuals, in a position of economic dependence,
analogous to that of an employees, should be entitled to engage in collective
bargaining…
o What, in part, determines the Board's inquiry is whether the contractors have some
significant capital from which they derive a return, or whether they benefit
primarily from their labour, which is at the disposal of the employer… - In ALGONQUIN TAVERN, [1981] OLRB Rep. August 1057, the Board set out a list of factors
which it considered would help in deciding whether a particular person was a dependent
contractor:
Labour Relations
-
-
-
32
o "the use of, or right to use, substitutes; ownership of instruments, tools, equipment,
appliances or the supply of materials; evidence of entrepreneurial activity; the selling of
one's services in the market generally; economic mobility or independence, including the
freedom to reject job opportunities, or work when and where one wishes; evidence of
some variation in the fees charged for the services rendered; whether the individual can
be said to be carrying on an "independent business" on his own behalf rather than on
behalf of an employer or, to put it another way, whether the individual has become an
essential element which has been integrated into the operating organization of the
employing unit; the degree of specialization, skill, expertise or creativity involved;
control of the manner and means of performing the work - especially where there is
active interference with the activity; the magnitude of the contract amount, terms, and
manner of payment; whether the individual renders services or works under conditions
which are similar to persons who are clearly employees".
HELD: The absence of any realistic opportunity by the carriers to negotiate with The Star on the
terms of their remuneration for delivering the papers means that they are entirely subject to The
Star's determination of what they will earn for delivering the papers.
Although contractually and ostensibly they are the carriers' customers, in reality, and from the
perception of the customers, they are The Star's customers. The employer selects the carriers and
monitors their behaviour, and, ultimately, the employer reserves the right to terminate the
relationship altogether.
The money earned by the carriers from The Star…is in reality no different from a wage. A
carrier is more akin to a part-time employee than to an independent contractor.
Fownes Construction Co., [1974] 1 Can. L.R.B.R. 510 at 512
- ISSUE: What is to be done with owner-operators who own more than one truck and thus employ
other drivers to operate them?
- RATIO: There is nothing illogical about finding that an individual is, at one and the same time,
both an employer and an employee and it can also be true that an individual is both an employer
and a dependent contractor. That always turns on a judgment about the facts of the particular
case.
- The more difficult question is whether an individual, having been found to be a dependent
contractor, should appropriately be included in the same bargaining unit as his employee.
- We are now inclined to the view that this is largely a hypothetical concern in the real world of
the construction industry.
- HELD: We are not prepared at this stage to lay down any rule excluding all owner-operators who
are also employers from the scope of the bargaining unit.
o Ontario Labour Relations Act, section 9(5), says:
 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.
o British Columbia Labour Relations Code, section 28(1)(b);
 Requires the labour board to “determine whether inclusion of the dependent
contractors in the existing unit would be more appropriate for collective
bargaining and, if so, require that an application be made to vary the
certification.”
Labour Relations
-
33
The British Columbia provision tends to bring together dependent contractors and other
employees in a single bargaining unit, whereas the Ontario provision favours a more fragmented
structure. This may help to explain the different approaches to whether a dependent contractor
who is also an employer falls within the legislation. As firms increasingly contract out many of
their core functions, this difference in approach becomes more significant.
Near Employees
Student nurses, medical residents and interns, articling law students supply services in return for some form
of remuneration. Do they have access to collective bargaining?
The answer appears to depend on how closely the particular relationship resembles traditional employment
– varied decisions of the Board.
In Ontario, “workfare” participants banned from being covered by Labour Relations Act or participating in
collective bargaining or joining a union (Ontario Works Act). ILO report urges the Ontario government to
repeal this ban, to no avail.
Excluded Employees
- In Ontario includes:
o Civil servants;
o Fire fighters;
o Police officers;
o Domestics;
o Agricultural workers; and
o Members of certain professions.
Rational grounds for excluding each of these groups?
- Also, raises the question of whether denial of the right to bargain collectively constitutes
interference with freedom of association under the Charter.
Delisle v. Canada, [1999] 2 SCR 989
- ISSUE: Whether the complete statutory exclusion of members of the RCMP from the federal
Public Service Staff Relations Act was inconsistent with the Charter guarantees of freedom of
association (section 2(d)) and equal treatment under the law (section 15).
- RATIO: The ability to form an independent association and to carry on the protected activities
described below, the only items protected by the statute, exists independently of any statutory
regime. Freedom of association does not include the right to establish a particular type of
association defined in a particular statute; this kind of recognition would unduly limit the ability
of Parliament or a provincial legislature to regulate labour relations in the public service and
would subject employers, without their consent, to greater obligations toward the association
than towards their employees individually.
- HELD: Section 2(d) did not impose upon Parliament a positive obligation of protection or
inclusion.
- The RCMP members who were excluded from the protection of the Public Service Staff
Relations Act could not be described as a particularly disadvantaged group of workers. The
holding in Delisle with respect to the effect of section 2(d) of the Charter on occupational
Labour Relations
34
exclusions from the coverage of labour relations legislation has to be looked at in that light, and
in light of the Supreme Court of Canada’s subsequent decision in the Dunmore case.
Dunmore v. AG of Ontario (1999)
- FACTS: Individual farm workers and UFAW organizers challenge the exclusion of agricultural
workers from Ontario’s statutory labour relations scheme (s 3 of OLRA) as a violation of their
freedom of association and equality rights under the Charter.
- ISSUE: Is the Agricultural Employees Protection Act, 2002 Constitutional? Does the exclusion
of agricultural workers from the OLRA violate S. 2(d) of the Charter (i.e. what is the state’s
responsibility under S. 2(d) of the Charter)?
- HELD: The court said:
o State action can sometimes apply to private actors
o The exclusion of agricultural workers from the OLRA violates freedom to associate
(Charter s. 2(d))
- Before Dunmore agricultural worker were excluded from the OLRA. Protection was ONLY for
individual’s right (not the right of the collective)
- Four part test: S. 2(d) freedom of protection protects…
o Protects the freedom to establish, belong to, and maintain an association
o Does not protect an activity solely on the ground that the activity is a foundational or
essential purpose of an association
o Protects the exercise in association of the constitutional rights and freedoms of
individuals
o Protects the exercise in association of the lawful rights of individuals
o Only meant to protect individuals in pursuit of their common goals (i.e. some activities
can only be done collectively – the activity done by group should be protected)
- Issue #1: Dunmore had extended the scope of freedom of association
o Change from old 4 part test for Freedom of Association:
1. first, that s. 2(d) protects the freedom to establish, belong to and maintain an
association;
2. second, that s. 2(d) does not protect an activity solely on the ground that the activity
is a foundational or essential purpose of an association;
3. third, that s. 2(d) protects the exercise in association of the constitutional rights and
freedoms of individuals; and,
4. fourth, that s. 2(d) protects the exercise in association of the lawful rights of
individuals
o Protect some activities that are not possible for the individual to do
o Charter rights are affected
- Issue #2: May be a positive obligation to protect freedom of association when:
o Charter right is affected, evidence shows lack of protection adversely affects enjoyment
of right
o Failure to protect against private action may be state action – at least in under-inclusion
- Issue #3
o Why did exclusion of Agricultural workers from LRA violate freedom of association?
 Freedom to organize lies at the core of freedom of association
 Use international standards: ILO (Bastarache mentions Can violating s. 87 – even
though not ratified
Labour Relations
35
o Without protection, the government encourages interference with employees
o Agricultural workers had a greater need for protection due to historical disadvantage
o Without protection, agricultural workers couldn’t exercise their freedom (i.e. couldn’t
associate)
-
-
Issue #4: Why exclusion of agricultural workers not justified under S 1?
o Objective: protection of family farm and ensuring farm productivity = OK
o Proportionality
 Rational connection
 For family farm, maybe, but no rational connection for the prevention of
economic harm to agricultural sector generally
 Minimal Impairment
 The complete exclusion fails min impairment test  lesser restrictions
could achieve the objectives
Issue #5: Does the AEPA comply with the requirements of Dunmore?
o What does the AEPA provide for agricultural workers?
o The association has the opportunity to make representations and the employer must listen
to the association’s representations.
o S. 8 – 10 – prohibits employers form interfering with the agricultural employees’ right to
associate. (must allow union organizers contact with workers living on their property)
-
DUNMORE DECISION NOT SUFFICIENT, things are missing:
o Collective bargaining rights – the employer has to read/listen, but that is all – there is no
positive obligation to bargain.
o Exclusion from statutory collective bargaining, including compulsory recognition and
bargaining
-
Key Points of Dunmore:
o Widens the scope of s.2(d) to include collective activities
o Recognizes that the state may have a positive obligation to protect associational activity
against interference by private actor
o Positive assessment of trade union freedoms
o Does not constitutionalize the right to compulsory recognition and bargaining or the right
to strike
Professionals
- Some Canadian jurisdictions still exclude certain groups of professional employees. These
exclusions are now the exceptions to a general trend that has seen professional employees
enthusiastically embrace collective bargaining.
- This raises questions about whether collective bargaining is becoming the preserve of employees
in a ‘privileged economic position’ and disadvantages lower income employees.
Public Employees
- Civil servants explicitly excluded in the past
- After 1960’s, legislative amendments encouraged public sector bargaining
Labour Relations
-
36
Now higher unionization rates in public than private sector
Usually covered by special collective bargaining statutes that restrict the right to strike (ie.
Ontario’s Hospital Labour Disputes Arbitration Act).
Managerial Employees
- North American labour relations policy assumes an adversarial relationship between
management and union.
- Labour relations statutes have traditionally tried to draw a clear line between those who are
“employees” and those who exercise “managerial functions”. The line between manager and
employee is not always clear, however:
Children’s Aid Society of Ottawa-Carleton [2001] O.LR.D. No. 1234 (Ontario Labour
Relations Board)
- FACTS: Application for certification. Employer claims they can’t be certified because all
members of the unit are not employees within meaning of OLRA (S. 1(3)(b)) – they are instead
‘supervisors’ and thus excluded.
- This group of employees are excluded from the OPSEU bargaining unit and have been dealing
with employer as ‘association’ for number of years. Now want to form own union, represented
by CUPE. These employees supervise the OPSEU bargaining unit.
- Supervisors carry out performance reviews, review goals, monitor attendance, schedule
employees, assign case work, have access to personnel files, sit on management committee
bargaining with OPSEU, deal with grievances/layoffs.
- ISSUE: Are units made up of persons who supervise employees permitted to bargain
collectively?
o Do the supervisors at the Children’s Aid Society exercise management functions within
the meaning of section 1(3)(b) of the Act?
- RATIO: Considered Corporation of the City of Thunder Bay which explains that section 1(3)(b)
has the goal of ensuring people in a bargaining unit don’t find themselves faced with
conflict of interest between their responsibilities as managers and their responsibilities as
trade union members.
o “the Board ought to focus on what has been described as the real indicia of economic
power over employees: the power to hire, fire, promote, demote, grant wage increases or
discipline employees.”
- Also considered Ford Motor Company of Canada Company that supports the exclusion of
management from bargaining unit.
- Decision: Supervisors aren’t employees, they exercise managerial functions and are thus
excluded from Act.
o Supervisors aren’t employees because:
 Nature and Extent of Authority
 The supervisors monitor employee performance and initiate disciplinary
responses where needed
 They have a part in performance appraisal which affects employee promotion and
hiring
 They do supervisory work full time and almost no bargaining unit work
Labour Relations
-
37
Supervisors are excluded to ensure that people in bargaining unit aren’t faced with conflict of
interest between their responsibilities and obligations as manager and their responsibilities as
member of union.
Para Inc. (United Steelworkers of America v. Para Inc. [2001] O.L.R.D. No. 4364 Ontario
Labour Relations Board)
- FACTS: Application for certification after a successful vote to have the union represent workers.
Parties negotiated agreement on all issues except whether position of assistant manager is
managerial and excluded or not managerial and thus included in bargaining unit.
- The store is a small operation without much formality. The employees generally govern
themselves in terms of hours of work and overtime. Salary increases are dealt with once a year
by Mr. Pittman in conjunction with his supervisor and head office. Mr. Larkin has nothing to do
with either budgets or salaries. Vacation scheduling also dealt with by Mr. Pittman.
- Pro-exclusion: Larkin’s salary is higher than other employees, he is asked what he thinks of
probationary employees, he has ‘spoken to’ employees in past about concerns, he is gone to with
concerns, he has one week more holiday, and has the title of assistant manager.
- Con-exclusion: However he spends 80 percent of time at order desk doing work same as other
employees. He has never terminated employee, done performance evaluations, granted leaves,
etc.
- ISSUE: The issue for determination is whether or not the position occupied by Mr. Larkin
is excluded under section 1(3)(b) of the LABOUR RELATIONS ACT, 1995 (the "Act").
- RATIO: Board relies on decision in CHILDREN'S AID SOCIETY OF OTTAWA-CARLETON,
[2001] O.L.R.D. No. 1234, in support of its position that managerial status should be driven by
the atmosphere in the workplace.
- The role of supervisors is summed up as follows:
o As noted in many earlier cases, involvement in the discipline and discharge of employees
is perhaps the most critical indicia of true managerial authority.
- The union argues that the employer had not met the onus of proof required for a party asserting
that an individual should be excluded from the bargaining unit. The union contends that the ratio
of supervisors to managers (a ratio of 3:1) would not be appropriate were Mr. Larkin excluded as
managerial.
- In essence the union asserts that besides his title, Mr. Larkin holds none of the trappings of
management. He does bargaining unit work…He is in the union's view, at best, a conduit of
information to Mr. Pittman.
- There is no litmus test which is universally applicable and dictates the result in every situation,
and in assessing each case, the Board must have due regard to the nature of the industry, the
nature of the particular business, and individual employer's organizational scheme. There
must, of course, be a rational relationship between the number of superiors and subordinates,
consultation or "input" should not be confused with decision-making, and neither technical
expertise nor the importance of an employee's function can be automatically equated with
managerial status.
- On the other hand, there may be individuals whose nominal authority appears to be limited, and
who have no formal managerial position or title, but who nevertheless make recommendations
affecting the economic destiny of their fellow employees which are so frequently
forthcoming, and consistently followed by superiors, that it can be said that, in fact, the
effective decision is made by the challenged individual. It is this type of recommendation
which the Board has characterized as an "effective recommendation" and the inclusion of these
Labour Relations
-
38
persons in the bargaining unit would raise the very kind of conflict of interest which section
1(3)(b) was designed to avoid. Persons making "effective recommendations" of this kind are
regarded as part of the "management team", and are excluded from the bargaining unit.
HELD: All of the real and substantial functions of managerial authority rest with Mr. Pittman at
this workplace…the duties performed by Mr. Larkin are not the exercise of managerial
functions as contemplated by section 1(3)(b) of the Act.
Confidential Employees
Except in Quebec, Canadian collective bargaining legislation excludes employees who are employed in a
confidential capacity in matters relating to labour relations. This exclusion, like that of managers, is based
on the possibility of a conflict of interest, but labour boards are reluctant to apply it as rigorously.
Canadian Union of Bank Employees v. Bank of Nova Scotia (1977) 77 CLLC 16,090 (Canada
Labour Relations Board)
- FACTS: Stenographer at bank branch has access to personnel records kept by manager.
- ISSUE: Employer argues she is not an employee because she is “employed in a confidential
capacity in matters relating to industrial relations.”
- RATIO: The denial of collective bargaining rights to persons employed in a confidential capacity
in matters relating to industrial relations is also based on a conflict of interests rationale.
- The inclusion of that person in a unit represented by a union might give the union access to
matters the employer wishes to hold dose in its dealings with the union. To avoid that conflict
and to assure the employer the undivided confidence of certain employees these persons are
denied the right to be represented by a union even if they wish to be represented.
o However, this exclusion is narrowly interpreted to avoid circumstances where the
employer designates a disproportionate number of persons as confidential and to ensure
that the maximum number of persons enjoy the freedoms and rights conferred by the
Canada Labour Code.
- Boards have developed a three-fold test for the confidential exclusion:
o The confidential matters must be in relation to industrial relations, not general industrial
secrets such as product formulae. This does not include the matters the union or its
members know, such as salaries, performance assessments discussed with them or which
they must sign or initial…It does not include personal history or family information that
is available from other sources or persons.
o The second test is that the disclosure of that information would adversely affect the
employer.
o Finally, the person must be involved with this information as a regular part of his duties.
It is not sufficient that he occasionally comes in contact with it or that through employer
laxity he can gain access to it.
- HELD: The stenographer position at Simcoe does not meet these tests and is therefore an
employee.
Labour Relations
39
Qualified Trade Unions
Labour boards have held that an organization must meet certain requirements of form in order to be
recognized as a trade union under labour relations legislation.
- It has never been entirely clear whether those requirements reflect a simple concern that unions
should have a viable organizational framework, or a more ambitious and controversial concern
that they should be democratic in their structure and functions.
A related issue, which has arisen frequently, is the extent to which a union must be constituted mainly for
collective bargaining purposes.
United Steelworkers of America v. Kubota Metal Corporation Fahramet Division and
Employees’ Association Committee of Kubota, [1995] OLRB Rep April 467 (Ontario Labour
Relations Board)
- FACTS: Steelworkers sign up most employees at the factory and apply for certification as
bargaining agent. However, there was already an “Employees’ Association Committee,” which
had a twenty-year history of negotiating employment agreements with the employer and which
intervened to oppose the certification. – committee was conceived and created by employer.
- There are no general employee meetings to discuss common interests or problems…nothing like
the kind of “membership” meeting which a union would normally have.
- The Committee has no:
o Constitution or by-laws
o Membership dues or fees
o Bank account or other financial wherewithal
- The Committee is entirely dependent upon the employer for all of the activities in which it is
engaged.
- ISSUE: Is the committee a trade union, as defined under the Act. If so, application for
certification by Steelworkers must fail.
- RATIO: A trade union must originate and operate at arm’s length from the employer. A union
that receives employer support (etc.) cannot be certified to represent employees nor enter
into a collective agreement binding these employees. It is an unfair labour practice for an
employer to create or support a “trade union” in order to hinder employees’ efforts to seek truly
independent representation.
o Under the Labour Relations Act, a trade union must be an independent agent of
employees.
- Here an entity is asserting that it is a “trade union” with an established collective bargaining
relationship under the Labour Relations Act, I ink that it is reasonable to scrutinize how the
organization actually behaves.
- In Associated Hebrew Schools of Toronto, the Board commented on the formality of structure
required in order to constitute a trade union organization under the Act:
o “The Board has in a number of cases indicated a series of steps which will generally be
sufficient to insure that a trade union has been brought into existence. These steps may
be summarized as follows:
1. A constitution should be drafted setting out, among other things, the purpose of the
organization (which must include the regulation of labour relations) and the
procedure for electing officers and calling meetings.
2. The constitution should be placed before a meeting of employees for their approval
either as originally drafted or as amended at the meeting.
Labour Relations
-
-
40
3. The employees attending the meeting should be admitted into membership. In this
regard it is well to keep in mind section 1(1) of the Act which defines a union
member to include a person who has applied for membership in the union and on
his own behalf paid to the union at least $1.00 in respect of initiation fees or
monthly dues.
4. The constitution should be ratified by a vote of the members.
5. Officers should be elected pursuant to the constitution.
The Board has recognized that the web of contractual relationships described in those decisions
can arise in more than one manner…However, it is of fundamental importance that a contractual
relationship be created and maintained.
Board reflects on section 86 of the Act, requiring a constitution be filed with the Board so
that members of the union may view it.
HELD: Unable to conclude that the Committee — an entity without constitution, assets, or
employee members (other than themselves) — possesses a structure sufficiently formal for it to
be described as a “trade union” within the meaning of the Act.
Employer Influence
Management interference with, or domination of, unions is prohibited by labour relations legislation as an
unfair labour practice.
- Protecting union autonomy and ensuring they are the authentic voice of employees is the policy
reason behind keeping management out of union and preventing employer-dominated
organizations from being certified as unions.
- Section 15 – Ontario Labour Relations Act forbids certification of a union:
o “…if any employer has participated in its formation or administration or has contributed
financial or other support to it.”
o This creates a problem for employee associations which have managers as members but
who want to unionize.
Children’s Aid Society of Metropolitan Toronto, [1977] 1 Can. L.R.B.R. 129 at 130
- the Board found: If an association happened to have some people in it who were found by the
labour board to be managers but who were not doing management’s bidding within the
association, that would not disqualify the association from certification if the association’s
rules made such people ineligible for membership and if they were expelled when their
managerial status became known.
Board of Education for the City of Toronto, [1994] OLRB Rep. August 1098
- The Board went further in allowing Associations to be certified as trade unions:
o “The structure of the Act…does not merely tolerate membership by non-employees, it
contemplates it…the composition of an organization’s membership, although in certain
circumstances relevant to the question of whether a trade union is dominated by the
employer…does not enter into the question as to whether that organization is a trade
union.”
Chapter 4 Conclusion
Developments in technology and the organization of work, and the challenges of globalization, have called
into question the appropriateness he law’s continuing allegiance to a model of labour relations that requires
an arm’s length relationship and an adversarial approach.
Labour Relations
41
Along these lines, the Canada Labour Relations Board has held that an employee organization does not have
to be committed to an adversarial form of collective bargaining in order to qualify as a trade union: British
Columbia Transit and Transit Management Assn. (1990), 6 Can.L.R.B.R. (2d) 1 (B.C.LR.B.).
Labour Relations
42
ILO Convention 87
- Freedom of Association and Protection of the Right to Organise Convention, 1948
o Article 2
 Workers and employers, without distinction whatsoever, shall have the right to
establish and, subject only to the rules of the organisation concerned, to join
organisations of their own choosing without previous authorisation.
o Article 3
 Workers' and employers' organisations shall have the right to draw up their
constitutions and rules, to elect their representatives in full freedom, to organise
their administration and activities and to formulate their programmes.
ILO Convention 98
- Right to Organise and Collective Bargaining Convention, 1949
o Article 1
1. Workers shall enjoy adequate protection against acts of anti-union discrimination in
respect of their employment.
-
-
-
-
2. Such protection shall apply more particularly in respect of acts calculated to –
(a) make the employment of a worker subject to the condition that he shall not join a
union or shall relinquish trade union membership;
(b) cause the dismissal of or otherwise prejudice a worker by reason of union
membership or because of participation in union activities outside working hours or, with
the consent of the employer, within working hours.
Article 2
1. Workers' and employers' organisations shall enjoy adequate protection against any
acts of interference by each other or each other's agents or members in their
establishment, functioning or administration.
2. In particular, acts which are designed to promote the establishment of workers'
organisations under the domination of employers or employers' organisations, or to
support workers' organisations by financial or other means, with the object of placing
such organisations under the control of employers or employers' organisations, shall be
deemed to constitute acts of interference within the meaning of this Article.
Article 3
o Machinery appropriate to national conditions shall be established, where necessary, for
the purpose of ensuring respect for the right to organise as defined in the preceding
Articles.
Article 4
o Measures appropriate to national conditions shall be taken, where necessary, to
encourage and promote the full development and utilisation of machinery for voluntary
negotiation between employers or employers' organisations and workers' organisations,
with a view to the regulation of terms and conditions of employment by means of
collective agreements.
Article 5
Labour Relations
43
1. The extent to which the guarantees provided for in this Convention shall apply to the
armed forces and the police shall be determined by national laws or regulations.
-
2. In accordance with the principle set forth in paragraph 8 of Article 19 of the
Constitution of the International Labour Organisation the ratification of this Convention
by any Member shall not be deemed to affect any existing law, award, custom or
agreement in virtue of which members of the armed forces or the police enjoy any right
guaranteed by this Convention.
Article 6
o This Convention does not deal with the position of public servants engaged in the
administration of the State, nor shall it be construed as prejudicing their rights or status in
any way.
ILO Report of the Freedom of Association Committee against the Government of
Ontario – Exclusion of categories of workers from the Labour Relations Act
- Canada has ratified the Freedom of Association and Protection of the Right to Organise
Convention, 1948 (No. 87).
- It has NOT ratified:
o The Right of Association (Agriculture) Convention, 1921 (No. 11);
o The Right to Organise and Collective Bargaining Convention, 1949 (No. 98);
o The Rural Workers' Organizations Convention, 1975 (No. 141);
o The Labour Relations (Public Service) Convention, 1978 (No. 151); or,
o The Collective Bargaining Convention, 1981 (No. 154).
Complainant Allegations
The Canadian Labour Congress alleges that the Ontario Labour Relations and Employment Statute Law
Amendments Act, 1995 (Bill 7), and the Ontario Labour Relations Act, 1995 (Schedule "A" to Bill 7),
violate ILO standards and principles concerning freedom of association and collective bargaining.
- In particular, the complainant alleges that, under Bill 7, agricultural workers, domestic workers
and certain specified professionals (architects, dentists, land surveyors, lawyers and doctors) are
denied access to collective bargaining and the right to strike.
History
The previous government in Ontario had expanded the definition of employees covered by the Labour
Relations Act to include professional employees and domestic workers in the Bill 40 amendments to the
Labour Relations Act which were proclaimed in force on 1 January 1993.
Limited access to collective bargaining was extended to agricultural and horticultural workers with the
enacting of the Agricultural Labour Relations Act, 1994 (Bill 91), which came into force on 23 June 1994.
Reasons
According to the complainant, agricultural and domestic workers are recognized as two of the most
vulnerable groups of workers in the Province of Ontario.
Labour Relations
44
As a result of the enactment of Bill 7 and the Labour Relations Act, 1995, by the present Government,
access to collective bargaining for agricultural workers, domestic workers and specified professionals has
now been withdrawn, and any collective agreements pertaining to these workers have been nullified.
For workers to whom the Agricultural Labour Relations Act, 1994, applied, section 80 of Bill 7 strips
bargaining agents of existing bargaining rights, extinguishes any existing collective agreements for these
workers and terminates any proceedings commenced under the Agricultural Labour Relations Act.
Similarly, section 7 of Bill 7 statutorily decertifies bargaining units of professionals employed in
architecture, dentistry, land surveying, law and medicine and nullifies any agreements that apply to these
employees.
This constitutes discrimination against these employees on the basis of occupation in contravention of
Article 2 of Convention No. 87, and the requirements of Convention No. 98. In addition, the exclusion of
agricultural workers fails to secure to all those engaged in agriculture the same rights of association and
combination as industrial workers are entitled to under Convention No. 11.
As a result of the Bill 7 amendments to the Labour Relations Act, agricultural and horticultural workers,
domestic workers and specified professional employees no longer have access to the machinery and
procedures established under the Act to facilitate collective bargaining. Unions can no longer be certified as
bargaining agents of these workers. Employers of these workers are no longer under any legal obligation to
bargain with unions representing the affected workers or, indeed, to engage in any bargaining whatsoever
regarding the terms and conditions of employment. The complainant concludes that these measures
contravene ILO standards and principles concerning the right to organize and the promotion of machinery
for collective bargaining.
ILO Committee’s Recommendations
The Committee calls upon the Government to take the necessary measures to ensure that agricultural and
horticultural workers, domestic workers, architects, dentists, land surveyors, lawyers and doctors all enjoy
the protection necessary, either through the LRA or by means of occupationally specific regulations, to
establish and join organizations of their own choosing.
It also requests the Government to take the necessary measures to ensure that the right to strike is not denied
to agricultural and horticultural workers, domestic workers, architects, land surveyors and lawyers and to
ensure adequate compensatory guarantees where this right may be restricted in respect of the medical
profession.
It also requests the Government to take the necessary measures so that agricultural and horticultural
workers, domestic workers, architects, dentists, land surveyors, lawyers and doctors have access to
machinery and procedures which facilitate collective bargaining and to ensure that these workers enjoy
effective protection from anti-union discrimination and employer interference.
Labour Relations
45
Chapter 5 - The Right to Join a Union
-
-
-
Prior to WWII threat of a strike was the only way for a group of Employees to compel Employer
to engage in collective bargaining
The important point of this chapter is that Employees no longer need to strike to obtain
recognition of their chosen union. The chapter focuses on unfair labour practices during
organizing campaigns.
Because Employers generally do not want to bargain with a union, management has an incentive
to prevent the union from obtaining or retaining the majority support on which its bargaining
rights are based.
Legislation restricts anti-union activities by an Employer during an organizing campaign and
also before and after the campaign; basically, no anti union activities are allowed.
Conduct that violates the legislation is called unfair labour practice.
Legislation also prohibits union unfair labour practices, including improper conduct in
attempting to win new members.
Policy: Articles from the text
The regulation of employer unfair labour practices during an organization campaign rests on the premise
that such conduct unduly influences Employee’s choice for or against collective bargaining.
American Empirical Study (1976)
- challenges the above premise
o Thesis: Illegal employer tactics do not significantly affect the result in a sample of
certification votes conducted by the US National Labor Relations Board.
“Promises to Keep: Securing Workers’ Rights to Self Organization” (Paul Weiler)
- Challenges thesis of empirical study that suggested a systematic deregulation of the
representation election.
- Two critical flaws:
1. Empirical data was inconclusive; it is not reasonable to conclude that the inverse is thus
true: “The failure to find a statistically significant connection between Employer
intimidation and Employee votes in this limited sample neither proves that there is no
such relationship nor provides a basis on which to argue that we may safely abandon
efforts to protect employee choice.”;
2. Study focused on the voter and not the election verdict; the point of a campaign is to
affect the verdict and even a small shift in support among voters could have the desired
effect. The study aggregates all the results of interviews with individual workers and does
not take into account the election verdicts of each campaign. An Employer campaign will
likely focus its attention on swing voters, thus, if Employers affect these voters, they can
affect the outcome.
Proving an Illicit Motive
An illicit motive is an essential ingredient in most unfair labour practices.
Labour Relations
46
The Labour Relations Act: Relevant Provisions
- S.70: Employers, etc., not to interfere with unions: No Employer shall participate or interfere
in the formation, selection or administration of a trade union… [In short, no interfering or
encouraging]. But, Employers retain the freedom to express their views so long as they do not
use coercion, intimidation, threats, promises or undue influence.
- S.71: Unions not to interfere with Employer’s organizations. [the inverse of S.70]
- S.72: No Employer
o (a): Shall refuse to employ or otherwise discriminate against an Employee b/c he is a member
of a trade union or is exercising any other right under this act.
o (b): Shall impose any condition in a contract that seeks to restrain Employeee from becoming
a member of a union or exercising a right under this act.
o (c): shall seek by threat of dismissal, or by any other threat to compel an Employee to
become or refrain from becoming a representative or member of trade union or exercising
any other right under this act.
- S.73: Employers not to interfere with bargaining rights. (1): No bargaining with other
organizations so long as a trade union continues to be entitled to represent Employees; (2) No
trade union shall seek to bargain with an Employer so long as there is another union entitled to
represent Employees.
- S.74: Trade unions may not act arbitrarily, discriminatorily, or in bad faith in the representation
of Employees.
- S.76: Intimidation and Coercion: No person shall seek by intimidation or coercion to compel
any person to become or refrain from becoming…a member of a trade union or exercising any
other right in this act.
- S.77: Persuasion during working hours: Nothing authorizes persons to attempt at the place
Employee works to persuade Employee during working hours…
Duchesneau v. Conseil de la Nation Huronne-Wendat [1999] CIRB No.1 (Can. Industrial
Relations Board)
- You can’t fire Employees during a campaign, even if they’re jerks and Employer has just
cause.
- FACTS: Mr. D. was really involved in union organization. He was suspended then fired. He was
also charged with on the job fraud, so Employers claimed just cause. However, they knew about
the conduct beforehand and did nothing. Mr. D. alleges dismissal was based on his role as union
organizer.
- DECISION: While Mr. D.’s behaviour was far from exemplary, the Board could not find that his
suspension and firing were not motivated, at least in part, by Employer’s desire to rid itself of a
key union organizer and supporter.
- REASONS:
o In the context of union organization drive, the Board is particularly careful to ensure that
the rights of Employees are protected. Board will examine Employer behaviour to ensure
that anti-union animus was not a consideration.
o Even if Anti-union animus is only a proximate cause, Employer will be found to have
committed an unfair labour practice (Yellowknife District Hospital Society).
o Reasoning in the above case: It’s easy for Employer to ground (make up) just cause for
actions. To give substance to the legislation, an Employer must not be permitted to
achieve a discriminatory objective because he couples it with other non-discriminatory
reasons for the act.
Labour Relations
-
-
47
Filing of a complaint is evidence that Er failed to comply with the Act; burden of proof is on Er.
Board’s role is to determine whether any anti-union animus was present in the decision (Board
doesn’t care about just cause, even if it’s there). Employer must demonstrate, on balance of
probability, that there was NO anti-union animus. (Halifax Grain Elevators)
o Board must find anti-union animus has ‘nothing whatsoever’ to do with Employer’s
actions
(Air Alma Inc.: The reasons for dismissal may well be justified but anti-union animus that is even
incidental to the decision compromises the objectivity of the decision and makes the employer
guilty of unfair labour practice).
Non-Motive Unfair Labour Practices
-
S.70 of the Act is silent with regards to motive.
Canadian Paperworkers Union v. International Wallcoverings [1983] OLRB
- Case deals with S.70, 72 & 76 of the Act. The first speaks solely of interference, the second has
words like ‘seeks’, ‘intends’, etc. The issue is thus one of motive.
- If there is an honest or mistaken belief (i.e., no antiunion animus) that compels Employer action
that infringes on a protected action, then go to S.70
- FACTS: During a strike, company used scab workers shipped in from secret location. Strikers
learned where they were eating one day. Fight broke out. 3 strikers assaulted strikebreakers, 1
attacked the van, 3 others were at the restaurant but didn’t do anything, and 2 were not at the
restaurant at all. Er had honest but mistaken belief that employees were involved in assault or
damage. All 9 were fired by the Er.
- DECISION: (Adams)
o 1st, If there is anti-union animus/if the board finds that the employer had anti-union
motives, then the employer’s act will in most cases breach all three of the sections
(70,72,76). A breach of 72/76 is a breach of 70.
o 2nd, If there is a legitimate business reason for the employer’s actions and the board
cannot find anti-union animus, then there’s no violation of 72/76, which begs the
question, is it a breach of section 70. There may still be a breach, but only in two unique
circumstances.
Grounds for finding a violation of Section 70
- It’s always a balancing act – bona fide business purpose vs. protected activity of the Employees.
- When the employer’s act is based on wrong facts or misinformation. In this case, the harm to the
union, outweighs what the employer thought was a legitimate business interest.
- Proportionality Assessment - When an employee has done something wrong and the employee
disciplines the person, if the board believes that the discipline imposed is disproportionate to the
wrong committed by the employee, then the board may find a breach of s70. (The reality here is
that if the board finds that the employer’s discipline is way out of proportion, the board will infer
an anti union motive anyways.)
- NB: Remedies
o All grievers were picketing at the time, which is protected under the act (but they also
beat some guys up which, obviously, is not covered)
o Employer not allowed to fire people just for being there. They could fire people who beat
up scabs. Board had to consider what Employer considered in each particular case.
o 2 Guys who weren’t there: reinstated immediately with full back pay and interest.
Labour Relations
48
o Guy who beat up the van: reinstated with no back pay. Board will not condone action
with back pay order, however, it was not clear whether he would have been involved in
the more serious acts (beating up scabs). Board found Er was punishing him simply for
being there. Guy had to make good on damage done to the van.
o 3 Guys who threw punches: They were the authors of their own demise. Despite being
higher ups in the union, the board found. This was not a case of mistake on the part of Er;
they were right, these guys did beat up other guys.
o 3 Guys that were there and did nothing: Reinstatement with NO backpay. The board was
pissed that they didn’t testify
Toromont Cat, Division of Toromont Industries Ltd. [2001] O.L.R.D. No. 4144 2001
- FACTS: Guy threw a (fake) bomb that shut down a business while the employers were speaking
about the strike off property. All hell breaks loose. Employers fire guy.
- Union argues he should be disciplined, not fired. No anti-union animus (so 72 &76 don’t apply).
Union argues, on Adam’s principles from Wallcoverings, that s.70 could apply here.
- Board makes clear that it doesn’t; s70 is only meant to prevent interference in lawful union
activities. Board upholds discharge.
Labour Relations
49
Contracting Out Union Jobs
Section 70 problems: Can an employer contract out union jobs? There is a unionized workplace with an
agreement in place (or one pending), but the employer simply wants to contract out work. Does s.70
preclude people from doing this?
Westinghouse Canada Ltd. [1980] OLRB
- FACTS: Employer closed (unionized) centralized operation and open several new plants in
locations with little union presence.
- DECISION: Board found anti-union animus and unfair labour practice.
o Board couldn’t/didn’t order re-opening of plant; too much supervision.
o Ordered compensation for loss and loss of opportunity.
- NB: Board says that had things unfolded differently, it may not have been so simple to find antiunion animus. E.g.: Employer faced with economic crisis caused by collective bargaining; Union
is unsympathetic; Employer has to move business.
Kennedy Lodge Nursing Homes I (1980) OLRB
- FACTS: Employer contracted out entire housekeeping and janitorial functions and laid of 16/65
employees represented by union. Employer says it was done to save money.
- DECISION: Board distinguished from Westinghouse, which “makes clear that an Employer
may discontinue operations for cause so long as the decision is not motivated by anti-union
animus. A desire to save money and thereby increase profits is not equivalent to anti-union
animus simply because the money saved would otherwise have been paid as wages to employees
in the bargaining unit.”
- NB: Employer may not be able to do this if CBA has “no contracting out language”
‘Equal Partnership in Canadian Labour Law’ (Langille)
- Criticism of Kennedy: collapses the distinction between discriminatory (anti-union) and
economic motives in a large majority of cases.
- Says under Kennedy logic, Westinghouse was decided wrong.
- Absent provisions in CBA empowering employer to unilaterally make decisions, Er action
violates the act and is most blatant and unfair labour practice.
- Contracting out to avoid the axiomatic effects of unionization is contracting out with an antiunion animus.
Kennedy Lodge Nursing Homes II (1984)
- FACTS: Kennedy Lodge entered into arrangement with employment agency for Employees to
displace 2/3 of union’s bargaining unit.
- DECISION: Board found that Employer had not relinquished control over Employees
performing the core functions of the business. Found it was still Employer.
- Where an employer retains control, “an inference can be easily drawn that the employer has
acted to replace his bargaining unit Employees in order to undermine their collective bargaining
rights”.
Labour Relations
50
Alteration of Working Conditions: The Statutory Freeze
-
S.86(1)-(3): Working conditions may not be altered
The freeze aims to restrain employer conduct that may have the effect of undermining the
union’s organizing or negotiating efforts.
Anti union motive on Employer’s part is not required for breach of a freeze provisions, so even
Employer action that is taken for legitimate reasons may be illegal during the freeze period.
The freeze operates in addition to other statutory unfair labour practice provisions, and it
supplements rather than displaces those provisions.
Freeze Chart (Certification & Collective Bargaining)
Start
Finish
Content/Test
(1) Union gives notice
No alteration of wage rates
Freeze During Cert
to bargain (S.16); or or any other condition of
Process (86(2))
(2) Application for cert employment or any right or
 Date application for
dismissed or
privilege unless union
cert filed and served
withdrawn.
consents.
on Er.
Tests
 Business as before
test (CIBC)
 Reasonable
expectations of Ees
(Simpsons).
(1)
7
days
after
No
alteration
of wage rates
Freeze During Collective
Bargaining (86(1)) – see
conciliation officer’s or any other condition of
p.393-94
report given to the
employment or any right or
parties; or
privilege unless union
 Notice to bargain
(2) 14 days after release consents.
given under S.16 (or
of “no board”
S.59) [and any prior
report; or
Test
collective agreement
(3) the union’s
expired]
cedrtification has
Purposive Test (Royal
been terminated
Ottawa Health Care).
(decertified)
Whichever occurs first.
Tests:
-
-
-
1st TEST - Business as Usual Test (CIBC).
o In short, CIBC did not give wage increases to Ees covered by the freeze, even though it
was common practice to give wage increases at this time of year. Basically, it is
“business as before”. Here, business as before was the granting of the wage increase. Not
a very helpful test.
2nd TEST - Expectation of Employees’ Test (Simpsons)
o If layoffs are happening, then you must show that the layoffs are proportionate to
economic circumstances and clear of anti-union animus. Too hard to define.
3rd TEST - Ontario Public Service Employees Union v. Royal Ottawa Health Care Group:
Labour Relations
51
o CURRENT LAW: Purpose of statutory freeze is to bolster bargaining process, to
reassert union’s status as a bargaining agent and give foothold for negotiations. Can’t be
any anti-union animus and must be a part of employer’s regular decision making rotation.
o IS THIS THE TYPE OF THING EMPLOYEES WOULD WANT TO BARGAIN
ABOUT?
Simpsons Ltd. V. Cdn. Union Brewery (1985) Can LRB
- FACTS: Simpsons was in fin. difficulty. Ees recently acquired bargaining rights, BUT, just
before giving notice to bargain, Er gave notice to lay off 10% of nationwide Ees. The functions
of most of the Ees in the certified unit were discontinued, but some of them were contracted out.
Union alleged violation of S.86(2).
- DECISION: Layoffs were to be expected, contracting out was not.
o Absolute freeze of everything is an unreasonable interpretation of the Act Business as
before is s super slippery concept to apply to fact situations; if the pattern of Er
operations is found in a policy manual, the test will be no problem, as is the case where
certain practices are so certainly entrenched to be beyond dispute. However, there may be
a problem looking for patterns.
o Freeze provisions catch two categories of events.
1. Changes that can be measured against a pattern (however difficult to define) and the
specific history of employer’s operation is relevant to assess impact of the freeze;
2. First time events where business as before formulation is not helpful in measuring
scope of Ees privileges.
- Better to focus on ‘reasonable expectations of employees.
- Objective Standard: what would a reasonable employee expect to constitute his or her
privileges or benefits in the circumstances of that Employer.
- Where the pattern of contracting out is found, it is sensible to infer that an employee
would expect such an occurrence.
- Lay-off cases are consonant with the ‘reasonable expectations’ approach; it is reasonable
for an Employee to expect layoffs in times of economic downturn.
- Layoffs must be proportional, economic justification must be proven where relied on and
there must be an absence of anti-union animus.
Ontario Public Service employees v. Royal Ottawa Health Group [1999] OLRB
** Important Case: Outlines approach under bargaining freeze; the question is whether Er altered something
the union would want to bargain about. **
- FACTS: Hospital reduced benefits during the negotiation of a collective agreement (during
bargaining phase of statutory freeze). Hospital claimed there were bone fide budgetary pressure;
reducing benefits was a way of realizing savings, without impairing other Ee benefits or having
patient care suffer.
- In the post-certification bargaining freeze, a third approach is used in which the board exercises a
regulatory function, reading S.86(1) in light of (1) the need to bolster the bargaining process, (2)
reinforce the status of the union as bargaining agent, and (3) provide a firm (if temporary)
starting point for collective bargaining. (Language borrowed from Ottawa Public Library).
- This freeze is intended to apply to any term or condition of employment that would undermine
these three principles. In other words, this section is intended to stop Er from changing the types
of things the union would be expected to bargain about.
Labour Relations
-
-
-
-
-
-
-
-
52
The freeze captures something other provisions do not: bona fide business behaviour not
motivated by anti-union considerations or in breach of S.17 (duty to bargain), but is prohibited,
for the time, because it undermines bargaining.
S.86(1): Bargaining Freeze: – directed towards facilitating bargaining - a form of economic
regulation not fault-based prohibition. (Freeze cases are not like unfair labour practice cases;
even bona fide decisions may be suspended while the bargaining unfolds).
After certification (or notice to bargain), it’s no longer business as before! Business as before is
not a useful test in the collective bargaining freeze.
“When the words of section 86(1) are read in conjunction with the related provisions of the Act
(S.17 – duty to bargain & 73 – Eers not to interfere with bargaining rights), it is quite evident
that an employer cannot carry on “business as before”. Once certification is granted, a new legal
regime is introduced; and once notice to bargain is given, the employer must no ignore the union
or act unilaterally as it might have done in a pre-collective bargaining regime.”
The “reasonable expectations” of employees test does not provide an effective guideline for what
can be changed during the statutory freeze; the employees are moving from individual contract
model to the collective model for the first time, so, who knows what their expectations are. For
all we know, they might assume that the employer is not allowed to change anything (Board).
This can’t be true.
NB: A less obvious case would be where Er wants to give Ees benefits. Ers could be attempting
to coerce people through bribes as opposed to threats; the fist in side the velvet glove. Danger
dries up if benefits are given permanently and unconditionally. But this is something to watch for
(Facts from National Labor Relations Board v. Exchange Parts Co. (1964) U.S.S.C.
Step One: Ask How the proposed change relates to bargaining
- It is necessary to pay particular attention to how the proposed change in employment
conditions relates to BARGAINING. Is it the kind of thing that would typically be the
subject of collective bargaining?
- And would changes of this kind, if implemented unilaterally in these circumstances,
unduly disrupt, vitiate, or distort that bargaining process (what the freeze is designed to
avoid whether or not the changes would ALSO be a BREACH of section 17)?
- Is it the kind of thing about which the employer would normally be required to bargain by
virtue of section 17?
- Because if the answer to these questions is "yes", it is the kind of thing that probably falls
within the ambit of section 86(1) and "should" be frozen (at least for a time) while that
bargaining process proceeds ("should" because while the words themselves are open to
alternative interpretations, policy and purpose point in favour of that one).
Step Two: Ask whether the change treats Ees as individuals or as a collectivity
- If the change in question is the kind of thing that affects employees AS A
COLLECTIVITY, and it is the kind of thing that the employer would be obliged to
bargain about (per section 17), and it is the kind of thing that, as a matter of labour
relations practice, employers typically do bargain about, then it is likely to be the kind of
thing that the employer cannot implement unilaterally during the currency of the statutory
freeze.
Step Three: Policy: Freeze facilitates bargaining, but is not a weapon
- The freeze is a spur to bargaining and an adjunct to the statutory duty to bargain (s.17),
and reinforces the requirement to deal only with the union when changing employment
terms. But the freeze is, at best, a temporary "veto" for the union
Labour Relations
-
53
Section 86(1) is designed to preserve the status quo to facilitate bargaining; the freeze
preserves the status quo pending the application of reasoned discussion or the exercise of
bargaining power; but it is not a substitute for bargaining power or an escape hatch from the
union's obligation to bargain. Nor is it a "penalty provision" or an instrument to exact an unfair
tactical advantage.
Labour Relations
54
Employer Speech
-
ISSUE: Employers may not and often do not want their employees to unionize. If this is the case,
what should an employer be allowed to say in those circumstances?
Employer speech is necessarily “free”, however, the relation between the speaker and the hearer
are important; so far as the speech discloses the wishes of the employer, they generally do have
the force a force, independent of persuasion. What to an outsider will be no more than a vigorous
presentation of a conviction, to an employee may be the manifestation of a determination which
it is not sage to thwart. A board must decide how far the second aspect obliterates the first.
Lerned Hand in National Labor Relations Board v. Federbusch Co. 1941
United Steelworkers of America v. Wal-Mart Canada Inc. [1997] OLRB
- FACTS: Company raised issues of economic and job security with employees and then refused to
answer questions asked on these matters (see handout with lots of legalese). Company’s failure
to answer the ? “will the store close if the union is successful” led Ees to conclude that the store
would in fact close. Union asks that unsuccessful vote be set aside and that the union be certified.
- RATIO: Board asks what a reasonable employee would understand from the
comments/message sent by the employer? (Objective test). Union certified.
- Ultimate summation of the case by the board: “…in the unique circumstances of this case, and
we stress that they are unique, we are of the view that the company’s failure to answer the
questions of associates with regard to the issue of store closure would cause the average
reasonable employee to conclude that the store would close if the union got in. Given that the
inside organizers told management that this was in fact happening, and management did not
change its approach, we are satisfied that the company intended employees to draw this
conclusion. There is no legal prohibition against answering questions with regard to store closure
by saying that the company would not close and would sit down and negotiate with the union if
the union was successful. Obviously, it is only illegal for the company to say that the store would
close. Therefore, by not alleviating employees’ concerns by answering the question, the
company was intentionally fuelling employee concerns. Accordingly, we find that the conduct of
the employer in circulating amongst the employees and engaging them in individual and group
discussion regarding the union, in the fashion in which it did, and the company’s refusal to
answer any questions with regard to what the store would do if the union was successful, was a
breach of section 70 of the act” (301).
NB: The conservatives removed the right to certify as a remedy and the Liberals recently put it back in.
Solicitation on Employer Property
The workplace is the usual and obvious location for union organizing.
- The essential tension here is b/w Er’s property rights (right to control, exclude, etc.) and Ees
right to act collectively.
- Note: relevant statutory provisions are the ones dealing with unfair labour practices and
the statutory duty not to interfere with the rights of Ers and Ees (sections 70 – 77).
Canada Post Corporation (1995) (C.I.R.B.)
- FACTS: Employee organizers from another location seek access to a building of an employer
where they don’t work.
Labour Relations
55
-
-
-
-
-
-
An upstart union (letter carriers union) comes along and wants to displace the current
union (CUPW), and the letter carriers want to communicate with the union members at
Canada Post. The organizers are also employees of Canada Post (though there are CP
offices with employees the LC organizers want to talk to all over the place). CP won’t
allow LC organizers entry.
DECISION: Employer has to give way. Canada Labour Board says CP has to let these guys in;
they are not outside organizers, but they are to be treated as employee organizers. There is no
compelling business reason why employees (albeit, employees from another facility) should not
be allowed to discuss issues with fellow employees during non-working hours.
NB: * “working hours” defined: the period of time during which an employee is required
to undertake his duties and responsibilities. Therefore, the section does not apply to those
periods of time an Ee is on company property before shift, during coffee break, during
lunch break, or after shift, even if the Ee is being paid for such time (otherwise, Ers could
prevent statutory activity/rights by simply paying money to Ees) (Adams Mine, Cliffs of Canada
Ltd.)
Strangers: the Board does not consider that Ees at one work location are strangers to any other
work location such that they can be treated as strangers with whom the employer has no
relationship
“compelling and justifiable business reasons” test: may allow the restriction of statutory rights.
(Adams; Bell Canada; Otttawa-Carleton Transit)
POLICY: Solicitation must also comply with the conditions that ensure a balance between an
employer’s right to productivity and sound management on the one hand, and on the other,
employees right to freely exercise their right of association.
Must show that operations are being disrupted (Canada Post)
- Must show a detrimental effect on entrepreneurial interests (Ottawa-Carlton Transit).
T. Eaton Co. [1985] OLRB Rep 491
- FACTS: Union organizers left flyers and spoke with Ees to organize union. Eatons had no
solicitation policy (insurance, sales, etc.) that is in force at all times, and that this should apply to
people trying to sell union memberships.
- RATIO: OLRB says there is no compelling business reason for banning employees discussing
unionization during non-working hours. There was no evidence that the communication is
interfering with Eatons’ business.
Cadillac Fairview v. Retail, Wholesale Department Store Union (1989), 71 OR 2d 200
- FACTS: Non-union organizers launched a campaign at the Eaton centre to unionize Sears
workers. Cadillac Fairview (3rd party - not Eatons), sought to restrict the ability to solicit
workers. IMPORTANT: The location where they were soliciting was the only place where
solicitation could have taken place.
- RATIO: Even when place is private property, if the location is one the public can go to with few
restrictions then the property rights of the owner becomes secondary to rights of union to
distribute employees. Once CFV was found to have no valid business purpose that would justify
its interference with protected union activity, its property rights were required to yield at least to
the limited extent ordered by the Board, to the Ees s.3 organization rights.
Adam’s Mine (1983) (OLRB)
** Communication must be connected to the Act (no supporting the NDP on Union bulletin board) **
Labour Relations
-
56
CONTEXT: Union was allowed to use bulletin board to communicate. Ees use bulletin board to
support the NDP during a federal election.
ISSUE: Is a ban on political campaigning by the Er an unfair labour practice?
DECISION: Not unfair labour practice: activity is too remotely connected to dominant purpose
of Labour Relations Act. Communications are not connected to concerns of bargaining unit Ees
qua Ees. In this context, the trade union canvasser is no different than any other political
canvasser.
Union Unfair Labour Practices
The law forbids trade unions from coercing employees to become members.
- s.76 incorporates unfair union labour practices as well as employer practices.
- These types of cases are far rarer than employer unfair labour practice cases.
Milnet Mines Ltd. (1953) (OLRB)
- Threats of violence against organizers and supporters of an intervener union by supporters of the
applicant union led the OLRB to dismiss the application, without even holding a vote, because it
considered that such intimidation would have a continuing effect.
Canadian Fabricated Products Ltd. (1954) (OLRB)
- Applicant union sought to replace other union as representatives of bargaining unit.
- Applicant’s canvassers had collective relations with several companies upon whom the
respondent company was dependent upon for business. In short, join our union or we’ll put your
employer out of business and you out of a job
- Threats of economic reprisals are forbidden by S.76
Labour Relations
57
Remedies for Interference with the Right to Organize
In labour-management relations, remedies play a particularly important role because of the peculiar
psychological dimensions of the employment relationship because time has a great tactical importance in a
union organizing campaign and because parties do not sever their relationship when litigation is over. .
Remedies can be quasi-criminal and administrative.
Certain unfair labour practices are subject to prosecution; Aggrieved parties may launch action with leave of
minister responsible or the LRB (see sections 104-7 and 109, if you’re interested).
Principle Remedial Section: s.96(4)
-
-
S.96(4) gives broad range of power.
- Where its found a violation of the act the LRB can make any order:
 cease and desist s.96(4)(a),
 rectify s.96(4)(b),
 compensate s.96(4)(c)).
Burden of proof is on Er to disprove allegations (S.105)
S.104 In limited circumstances the board can find, in direct violation of an order (like contempt
of court) can impose punitive awards. This is only in extremely exceptional circumstances
(violation of a clear order of the board). Will use this: Unlawful strike, and not following
board’s cease and desist order.
Remedies Review
- When Er engages in ULP by suspending or dismissing EE, normal remedy is reinstatement with
compensation for lost wages and benefits.
- This relief, however, only reaches the harm done to the individual, while the ULP may have
discouraged support for the union (it can be a case of efficient breach of the statute by Er).
- Recall Westinghouse (old plant closure, new plant opened to defeat union): LRB directed Er to
give Ees of old plant right of first refusal on new jobs with no loss of seniority or benefits and to
pay relocation allowance to those Ees who moved. Eer also ordered to give union a list of
employees at the new plant as well as access to company bulletin boards, and to permit union
reps to address employees during working hours.
- Recall also International Wallcoverings where the remedies were fitted to each individual, some
receiving reinstatement with back pay, some without, and some were left in the cold.
United Steelworkers v. Radio Shack: (1980)
- High-water mark of the development of labour board remedies; so long as remedy is not
punitive, Courts will let it stand.
- Board directed Er to post for sixty days a notice drafted by the board informing Er had violated
those rights and set out a promise by Er to comply with both the legislation and the board’s
orders.
- On Judicial Review, the Court did not alter the remedy: (Cory J.)
- So long as the award is compensatory and not punitive; so long as it flows from the
scope, intent and provision of the act itself, then the award of damages is within the
jurisdiction of the Board. The mere fact that the award of damages is novel, that the
remedy is innovative, should not be a reason for finding it unreasonable.
Labour Relations
58
National Bank of Canada and Retail Clerks International Union (1982) CLRB
** Remedy verges on being punitive. Supreme Court Reviews (below): relationship b/w the act and its
consequences to the trust fund is not apparent **
- NB: Case, nonetheless, makes the kind of actions by the Ers economically inefficient; board
awarded HUGE damages package. (So, if Er asks how much it will cost to do what it did, the
answer would be, ‘you can’t afford it’. Also possible to charge someone with ‘conspiracy to
effect an unlawful purpose – see: K-Mart)
- FACTS: There was a three day period in which NO FREEZE was in effect (b/w cert. and
bargaining). Senior bank officials met and changed a plan to reduce services at the branch to a
plan to close that branch and transfer its accounts to the non-unionized branch.
- DECISION: Board found anti-union animus (it was obvious that they wanted to ‘get rid of’ the
union). Board found that there had been a transfer of a business b/w unionized and nonunionized branches and an intermingling of Ees from the branches. Without regard to the wishes
of the original employees of non-unionized branch, board held that the union was the bargaining
agent for the employees and granted remedies for unfair labour practice. Board ordered Er to
give union lists of employees, allow union to hold meetings during working hours and to
install a bulletin board and to pay associated costs.
- NB: The board also ordered that Er send a letter to all employees across Canada saying it had
violated their rights under the Code and that it recognized that they had a right to organize and
that managers had a responsibility to recognize that right. Board also ordered the bank to deposit
$144k into a trust fund to be administered jointly by the union and the bank, subject to board’s
approval, for the purpose of promoting Code objectives among all Ees. (The figure was the
amount estimated to have been saved by closing the branch).
On Appeal to the S.C.C. (Chouinard J.)
- The fact that a large number of bank employees are not members of a union is not a consequence
of Er’s act.
- Because the letter’s main purpose is to announce the creation of the trust fund, it is also set aside.
- Basically says that the Board’s remedies (trust fund and letter) are totalitarian and totally alien to
a free nation like Canada.
Labour Relations
59
Interim Relief
Most of the administrative remedies that seek to protect union organizing are process-oriented; attempt to
redress the harm caused by illegal Er conduct while leaving Ees to choose for or collective bargaining.
S.11 may grant certification, even when it can’t be demonstrated that the organization campaign would not
have succeeded.
Section 11: Remedial Certification
The new Liberal-enacted s.11 covers two scenarios:
- Where employer breaches the act and, as a result, has interfered with the Ees…(situations), then
ss2 applies.
- (a) There was a vote and the board finds that the ULP resulted in a misrepresentation of
the vote. Ees will have to have collected 40% of the vote/cards, and then lost the vote.
- (b) Where an organizing campaign has just begun, i.e., less than 40% of the Ees have
signed up.
- Ss2 sets out the remedial powers of the board
- (old Harris law) – order a representation vote be taken and do anything to ensure that the
vote represents the true wishes of the Ees.
- Certify
 Policy is that this should cause bad Eers to think twice about being extreme jerks
Requirements for Certification as a Remedy (see S.11)
- That an Er or someone acting on behalf of Er must have breached the Act. (Wal-Mart)
- No other remedy short of cert. is appropriate
- Ers action makes it such that a representation vote does not or would not likely reflect the true
wishes of Ees in the unit.
- Whether union has support adequate for the purposes of collective bargaining.
- NB: Threats to an Ee’s job security will undermine the ability of the Ees to freely express their
views.
- Good quote from Lorraine Products Canada Ltd:
 “the threat to job security and/or economic well-being cannot now be erased by
either the Er or the Board. It undoubtedly followed the Ees into the voting
booth…and would follow the Ees into the voting booth in any subsequent vote.”
Barong Metal Industries (2001) OLRD
* The Sri Lankan gang members case *
- FACTS: Er used the services of a criminal gang that made death threats against union
supporters.Cert vote ended in a tie. Board found it unsuccessful. Ees launched ULP claim.
- REMEDY: Board ordered that new vote be held within six months; directed Er to provide union
with names, etc. of all Ees eligible to participate; gave union right to distribute leaflets; directed
Er to post and distribute notice that Er had violated Code; gave union right to meet w/ Er to
discuss discharge or suspension of any Ee before new vote; directed that all es in bargaining unit
attend monthly union meetings; allowed union to designate three reps to act on its behalf in the
workplace; directed Er to reimburse union for organizing costs; granted additional damages for
intimidations and loss of opportunity to bargain.
- NB: This was under the new, old, section 11 (Post Harris, pre McGuinty)
Labour Relations
60
Interim Reinstatement (S.98)
- This contemplates the scenario where you have an organizing campaign and, at some point after
its commencement, an employee(s) is dismissed. The union files an ULP complaint (72,76,86),
and there’s a hearing., which takes 3-12 months.
- THE QUESTION: during the period – date of dismissal to the date of decision – does the
employee get to work, or does the employee stay home.
- WHY IT MATTERS: The termination of a union supporter can retard or halt altogether the
progress of an organizing campaign; Ers can kill the campaign by breaking the law (efficient
breach).
- IMPORTANCE: Er fires someone, union files complaint. In an unusually short period of time,
the board says ‘go back to work’. This is quite dramatic in the real world; key union organizer
gets fired, then comes back.
- ISSUE: How do we make such a breach inefficient?
- NDPs – Created law that allowed interim reinstatement. TORIES got rid of this power
(and changed from ballot model to vote model). LIBEALS have brought it back: S98 of
the act.
Patrolman Security Services Inc (2005)
** THE Case for Expedient Interim Relief (reinstatement) and Consultation**
- FACTS: Application for interim relief (reinstatement) under section 98 of the act. In the main
action, union alleges ULP flowing from the firing of two Ees who were key inside organizers.
- THE MAIN ACTION: One EE was fired for being offsite (went to another site to borrow $ to
repair his tire). Another EE was fired for sleeping on the job (over forty minutes).
- DECISION: Reinstatement granted. Information found to be significant to the Board:
- Fired on the same day union intended to file application
- Ers knew of Ees engagement with union.
- Ers past practice in dealing with this conduct was not termination.
-
ORDER OF THE BOARD:
- Reinstate Ees
- Refrain from altering their contract terms until the pending proceedings are done
- Post a copy of the order
Overview of Section 98 – What to look for when arguing for reinstatement
- S.98(1)(b)&(c): subject to (2)&(3) board may reinstate or alter the terms or conditions of
employment, respectively.
- S.98(2): Power can be exercised only where the board finds:
1. Circumstances giving rise to pending proceeding occurred during organization
campaign. (Was the Ee fired during organization campaign?)
2. There is a serious issue to be decided in the pending proceeding. (There usually is)
3. The relief is necessary irreparable harm or is necessary to achieve other significant
labour relations objectives (Firing is always irreparable harm)
4. In the Board’s view, the discharge of key organizers prior to a representation vote could
lead other employees to choose not to vote to support a union in a representation vote.
The condition of irreparable harm to the union under section 98(2)3. is established.
Labour Relations
-
61
The balance of harm favours the granting of the interim relief pending a decision on the merits in
the pending proceeding.
The balance of harm favors Ees (they were long term employees, unlikely to do it again, and
their action was unlikely to encourage other employees to do the same thing).
S.98(4): Burden of proof lies on the applicant
- Considerations #3 & 4 require the Board to attempt to anticipate the degree of harm or the labour
relations consequences which will occur, as a result of the granting or withholding of relief.
- The term “unrelated” must mean “not causally related” as there could not be other possible
degree of “relatedness” that would be relevant or probative.
S.98(3): The board may not exercise its power if the acts of the Er is found to be unrelated to the
exercise of the rights of the Ee under the Act.
- Section 98(3) assumes that the Board will look beyond the pleadings and declarations filed to
make an assessment of the quality of the evidence to be put forward in the main application
(could be done through consultation)
- The Board is required then to conduct some form of inquiry to determine whether there is an
appearance of a causal relationship between the exercise of rights under the Act and the
impugned employer conduct.
- The inquiry into appearance, deals with the surface view which is presented on an initial
summary review or scan. (Analogy drawn to representation and certification – board reviews
whether union appears to have had 40% support)
- The inquiry can be cursory and the tolerable margin of error greater, where a mistaken
conclusion should it occur, can be cured in the more detailed and time consuming process of
adjudication in the main application.
- From a labour relations adjudication perspective, the legislature’s use of the term “appear” in
section 98(3) is a classic example of the balancing of practical expedition as against
adjudicative accuracy.
- This type of inquiry is directed at determining not whether there is a causal relationship as a
question of fact, but whether it merely “looks” or ‘appears” to be that way on a preliminary
review or scan of the information before the Board: the board was satisfied that it looked like the
actions were related.
Overview of s. 98
- The Board must determine as a question of fact whether the circumstances giving rise to the
application arose during a union campaign 98(2)(1)(Patrolman)
- In Metrican, ERs challenged this assumption, saying there was only minor rumblings that
there may be a union organizing drive.
- S.98(2)(2): There must be a serious issue to be decided. There is a serious issue to be decided
where key union organizer or known union supporter is terminated (Patrolman)
- Even though someone being fired is a serious issue, Metrican was arguing that they did not fire a
'key union supporter'. The guy fired (BJ) was a union member.
- S.98(2)(3): Reinstatement is necessary to prevent Irreparable Harm: Will termination of the EE
have a chilling effect on the union organizing drive?
- S.98(2)(4): Balance of harm must favour reinstatement.
Labour Relations
-
62
OVERRIDE: S.98(3) says that conclusions under S.98(2) do not matter if it appears that
discipline etc. imposed was unrelated to rights exercised under the Act.
Burden of Proof: Lies with the union – S.98(4)
Consultation under s. 98:
- Over the decade since the rules were made, the Board has developed the process of consultation.
This is distinct from a hearing and the use of the consultation process is widespread and occurs
in adjudication of a broad range of the Board’s work
- In a consultation, the parties are not provided with an oral hearing, rather, the parties are being
“consulted” by the Board for the purpose of filling in the informational gaps that exist in the
Board’s understanding of the dispute. While the parties have less control over the process and the
adjudicator exercises more procedural discretion, the consultation process is far more expeditious
and practical than a traditional oral hearing.
- Section 110(18) permits the chair to make rules to expedite proceedings brought under section
98.
- Rules 76 and 77 permit the Board to adjudicate certain described types of applications where
expedition is particularly important; these Rules empower the Board to inquire into applications
by “consulting” with the parties for purposes of obtaining information, and then to adjudicate,
without the necessity of holding an oral hearing.
- “A consultation is meant to be more informal and less costly to the parties than a hearing, and
the Vice-Chair plays a much more active role in a consultation than in a hearing. The goal of a
consultation is to allow the Vice-Chair to expeditiously focus in on the issues in dispute and
determine whether an employee's statutory rights have been violated.” (Information Bulletin
#11)
- UNIVERSAL FEATURES: To draw out the facts and arguments necessary to decide whether the
statutory duty of fair representation has been violated, the Vice-Chair may: 1) question the
parties and their representatives, 2) express views, 3) define or re-define the issues, and 4) make
determinations as to what matters are agreed to or are in dispute. (Ibid).
- All parties must present all facts they intend to rely on ahead of time.
Labour Relations
63
Conspiring to Effect an Unlawful Purpose
R. v. K-Mart Canada (1982) Ont. C.A.
- FACTS: First off, Er lied to Board about adding 120 Ees to K-Mart warehouse to delay
application of union to represent Ees. Second, Er hired spies as Ees to snoop around and get info
re: certification and to vote against certification themselves. OLRB ordered a vote to take place.
Ers and the snoops had a meeting to hatch a plan to discredit the union. Long story short,
eventually the union was certified, couldn’t reach an agreement, struck, and then ceased to be the
bargaining agent of the Ees. Respondent expended over $167k to achieve its ends in connection
with the certification votes.
- REMEDY: The court merely increased the damages award from $25k to $100k.
- ISSUE: Is this adequate? Should the Er have gone to jail? What are the advantages/disadvantages
of using the criminal law instead of administrative proceedings?
Toromont Cat [2001] O.L.R.D. No. 4144
- FACTS: During a legal strike, Ee (the picket captain) threw an ‘explosive device’ onto the
property of Er. The bomb squad was called in. Traffic on Hwy. 7 was stopped. Ee was fired.
Issue is whether or not termination violated sections 70, 72 and 76 of the Act.
- These sections of the Act are designed to protect unions and their members from employers who
take action against the union or its members because of, among other things, union membership
or activity.
- In order to find a violation of section 72 or 76 of the Act, there must be a finding that the
employer has acted with an anti-union animus.
- Regarding Section 70 (see analysis template below), there was no ‘protected activity here’ and
no need to balance the ‘business purposes’ for the firing; Ee brought business to a halt and
frightened employees. Further, Ees were already in a lawful strike; termination did not in any
way interfere with the activities of the trade union.
- NB: In reading the case, the analysis for these types of allegations seems to go something like
this:
- First look to the motive provisions (72 and 76) and assess whether there was any antiunion animus.
- Go to International Wallcoverings, where the board found that that there could be a
violation of the Act (S.70) even where an employer has not acted with an anti-union
animus.
- The test for section 70 was described in Carleton University (1998).
- The Board observed that all legitimate employer conduct which may "interfere" with a
bargaining agent should not necessarily amount to an unfair labour practice (ex. No antiunion animus, but, firing of Ee significantly interferes with organizing efforts – “These
facts should not in every case amount to an unfair labour practice. If they did, there
would be no need for sections 72 or 76)
- The test requires a balancing as between the "business purposes" behind the
employer's conduct and the union's "protected activity" which may have been
interfered with
- “cases arise where employer conduct has a significant impact on protected activity and,
while supported by good faith, does not reflect a persuasive or worthy business purpose”
Labour Relations
64
Chapter 6 - The Acquisition and Termination of Bargaining
Rights
The Wagner Act Model and the Principle of Exclusivity
-
-
-
Before the advent of modern CB legislation, workers and Us had to rely on economic sanctions
to induce Ers to engage in CB; recognition strikes were common and bitter; LR legislation was
introduced mainly to remedy the problem of U recognition
Certification: a statutory procedure in every Canadian jurisdiction which allows a U, upon
proving that it has majority support among a unit of Ees, to become exclusive BA for the Ees and
to compel their Er to bargain with it on their behalf
Voluntary Recognition: allows a U to be ‘voluntarily recognized’ by Er as the exclusive BA for
the Ees
Once a U is certified or voluntarily recognized they are prohibited from exercising economic
sanctions in efforts to acquire bargaining rights AND it becomes the bargaining agent for ALL
the Ees in the BU (including the minority that did not support certification)
KEY PRINCIPLES: majority rule & exclusivity
- Majority Rule and Exclusivity are closely related: exclusivity is justified by the fact that the U
has demonstrated that it has the support of a majority of the Ees as well as by the assumption that
it is generally to the advantage of all the parties to have ONE clearly defined interlocutor on the
Eee side
“Union Certification as an Instrument of Labor Policy: A Comparative Perspective” (Adams, R.)
- North American process of certification is comparatively unusual – generally other
countries do not divide the labour force into tiny Bus and do not require representatives of
Ee interests to win the support of the majority of Ees in each microunit to acquire
government support for recognition
- Justification for arranging unions as specific to workplaces was that ‘outside unions’ had
no interest in the welfare of the enterprise and thus were likely to have a disruptive effect
on productivity and competitiveness
- For unions certification results in compulsory CB, backed by a government agency with
powers to compel an intransigent Er to enter into negotiation for the view towards signing a
CA; since achieving recognition for the purposes of CB is extremely difficult, even with
the aid of a government agency with substantial enforcement powers, without the aid of
such an agency it would no doubt be much more difficult; since certification leads to legal
orders requiring reluctant Er s to enter into negotiations, it is generally looked on as a prounion policy invention; HOWEVER – Ers first called for certification because it is actually
good for them:
1. they can contest Ee representation campaigns &
2. certification ha entirely dissipated the pressure that existed in the early 20thC for
the general enfranchisement of the industrial citizenry
- Because Ees have a means to establish CB through an electoral process, noncertified Ers
are considered entirely justified in refusing to recognize and deal with independent Us
representing a minority of their Ees
Labour Relations
-
-
-
65
Not only are Ers permitted to attempt to maintain unilateral control over the establishment
of terms and conditions of employment, they are also forbidden from establishing Ee
representation plans voluntarily
Argues that the principles of exclusivity and majority rule have effectively relieved Ers of
the duty resting upon them earlier in the century to address the democratic void in industry
positively; AND as a result, small and diminishing part of the workforce in the US today is
unionized
4/5 of American Ees have their conditions of e+ established within a system of industrial
autocracy
The Appropriate Bargaining Unit
The description of the NA model as based upon majority rule and exclusivity principles is accurate but too
abstract in terms of understanding the certification process. One cannot have a majority in the air; majority
must be of constituency called bargaining unit (BU)
Bargaining Unit Determination: General Principles
- Bargaining Unit = group of Ees defined on basis of the Er for whom they work and
positions they occupy; (several different formations, including: all Ees of an Er engaged in
production of good or service; only a subset of those Ees who perform certain tasks;
workers employed at only one workplace or at several…); Certification applications
typically only involve one U and one Er (sometimes seen as a policy shortcoming of our
system)
- BU has 2 distinct functions:
1. serves as an electoral constituency for purposes of cert/decertification
2. serves as basis for CB, b/c a CA drawn up at bargaining table normally covers all
BU Ees
- Parameters of BU will effect ongoing Er-U relationship in the following ways:
- May be pressure toward the compression of wage differentials and uniformity in
other terms of employment for everyone in CA
- If multiplicity of units w/in single enterprise, disputes may occur over which CA
governs particular tasks; inter-U jurisdictional disputes over exclusive bargaining
rights, or (more likely): disputes between members of Us over who should do
certain work
- Degree of economic pressure for both parties will also be affected by design of BU
- Size and shape of BUs can have dramatic effect on bargaining power and on the frequency
and impact of strikes; if many units in a particular enterprise there is the possibility of a
number of legal strikes at different times - may be disruptive and effective bargaining tactic
- Design of BU important in terms of ‘coercive comparisons’ in which each wage settlement
is strongly influenced by earlier settlements for other units; more BU = more opportunity
for comparisons; leapfrogging/me-tooing has become more difficult as more Us have been
put on the defensive by recessionary tendencies, labour saving tech, Er attempts to
outsource to non-U firms, growing int’l competition
Labour Relations
66
Delineating the Bargaining Unit
- Unit seeking cert for unit it claims as appropriate for CB will apply to relevant board and
board will decide if proposed unit or some variation of it is an appropriate one
- Sometimes legislation is quite specific about what constitutes appropriate unit – most often
where public sector Ees are involved; private sector offers a contrast, where boards usually
have wide discretion to determine appropriateness
- Weiler set out traditional approach to determining BU appropriateness in Insurance
Corp. of British Columbia v CUPE [1974]: preferred BU, according to decision, is a
broad one comprising all the Ees of a single Er in order to ensure: administrative efficiency
coupled with facilitation of CB for both sides, no impediment to lateral Ee mobility,
common framework of employment conditions. May also promote industrial peace and
stability, by making strikes and lockouts less likely than if there are several separate sets of
negotiations. Consideration typically described as the most important of all is whether there
is a “community of interest” among the Ees in question. This consideration often results in
several units in a particular enterprise; Ees with significant difference in background, skill,
type of work, method of payment, and geographical location have often been placed in
separate BUs on the criterion of community of interest.
- RECENTLY: the use of this key criterion has been evolving.
Metroland Printing [2003] OLRB
- FACTS: Mixture of f/t and p/t Ees in proposed BU; 2 departments: sales (4 Ees paid on
commission) and distribution (2 Ees paid hourly wage); one of distribution Ees and Er assert
together that the proposed BU (“all Ee”);
- from time to time Er hires p/t and temp Ees (p/t work usually 19-20 hours per week and
are usually temp), whereas f/t Ees receive full benefits and p/t and temp receive none;
- p/t can be sent home if no work to be done and their shift can change on short notice,
whereas f/t have regular hours and schedule;
- temp Ees are hired to either replace Ee on leave up to a year OR to assist Er during busy
periods (usually 3-4m and not to do regular f/t Ee work);
- temps are hired pursuant to written K for employment and regular f/t Ees are not. Er also
has co-op students on occasion, no $ flows from Er to co-ops and they sign K with M of
Ed. (M of Ed also covers WSIB coverage for co-ops); Er interviews co-ops; all
Metrolands current f/t Ees began w/ company on a 1 yr K working 19-20 hours / wk
- TEST FOR APPROPRIATENESS OF BARGAINING UNIT:
i)
whether there is a sufficient community of interest among proposed BU members
ii)
the BU mustn’t create serious labour relations problems for the Er
- Board should not automatically make assumptions about community of interest; it is not assumed
that p/t Ees have a different community of interest than f/t Ees; Board determines an appropriate
BU based on the particular circumstances of each workplace & the law has evolved such that
communities of interest may be quite heterogeneous; Board is focused on “concrete problems
rather than the sometimes nebulous concept of ‘community of interest’.” Employees share a
community of interest simply by being employed by the same Er in the same workplace and Ees
with quite different terms and conditions of employment can effectively bargain together.
- TEST PRONGS HAVE EFFECTIVELY MERGED:
Labour Relations
-
-
-
67
Ees of the same Er will be generally be found to have sufficient community of interest to
bargain together unless the placement of them in the same BU, due to lack of community
of interest or otherwise, creates serious labour relations problems for the Er.
ANALYSIS: Board wishes to avoid undue fragmentation within the workplace and finds that
despite the differences among Ees, the Board is quite comfortable with broadly based BUs
(helped in this case that all started employment with p/t 1 yr Ks)
Factors that must be balanced in determination include: Board’s aversion to fragmentation; Ee
wishes; viability of a BU as a whole
Note (335-6)
- Wagner Act model was premised on the model of f/t, blue collar industrial or
manufacturing setting; recently casual and p/t Ees in these and service industry have
become focus of U movement and law reform; largest growth in Can. labour market has
been in p/t and casual; rise of global economy has meant shift in industrial economies from
manufacturing to service sector w/ concomitant rise in p/t employment; p/t employment is
feminized
- p/t Ees generally have less job security and inferior terms and conditions & as such might
be expected to be fertile ground for U organizers (in reality though the rate of unionization
was less than half as the figure for f/t workers); many Us have traditionally opposed the
hiring of p/t workers, who have been seen as job competitors an as exerting downward
pressure on wages
- as in Metroland boards have been moving towards more flexible approach to the inclusion
of p/t in BUs w/ f/t; however, there is still debate in labour law community about how to
best handle the growth of p/t work; casual Ees have also posed challenge in regard to
integration into Bus
- single branch cert. for nationwide banks poses problems in terms of determining
appropriateness of BU as below
Labour Relations
68
Bargaining Unit Determination and the Organizing Drive
Crucial fact that BU performs 2 main functions,:
1. serves as an electoral district for certification purposes
2. serves as the basis for CB
- 1 &2 often conflict in instances where an Er has several outlets or branches. While it may
be easier to organize on an incremental, branch by branch basis, single branch BUs may be
without power needed to engage in CB process
“Organizing the Unorganized: Unionization in the Chartered Banks of Canada” (1980)( Elizabeth
Lennon)
- Nationwide banks operate through very widespread network of individual small branches;
biggest banks are highly centralized, power concentrated at head offices and lessening through
regional administrative subdivisions
- Feminized workforce w/ women concentrated in low-paying, routinized jobs; high turnover
- Inverse concentration of male Ees in management w/ higher pay
- Chartered banks notoriously resistant to trade unionism w/ only sporadic attempts to organize.
Initial attempt was relatively late Kitimat (1959) and the CLRB accepted the Bank’s argument
that the BU wasn’t suitable for certification as a single branch unit. The board left open the
possibility of future acceptable BU short of national unit: “it may well be that units of some of
the Ees of a Bank, grouped together territorially, or on some other basis will prove to be
appropriate, rather than a nation-wide unit.”
- Kitimat was daunting to trade union movement and formidability of organizing task increased
with proliferation of branches over time. While Kitimat hinted at a manageable unit, none was
readily apparent b/c the administration of bank personnel happened largely at national level;
nothing happened in organizing for 15 years until bank workers instigated organizing efforts in
both BC and Ontario and filed first applications for certification since Kitimat
- SORWUC represented new, explicitly feminist concerns for the labour movement and strategize
to organize workers after grassroots politicization proved fruitful
- Union doubted the possibility that a Board would accept single branch BU for cert and strategy
was to assemble as many applications for cert. as possible and file in rapid succession; first was
CIBC in Vancouver and by time hearing occurred 22 more had been filed
Service, Office and Retail Workers’ Union of Canada (SORWUC) v. CIBC [1977]
- Facts: Context as above; U had filed for cert. for 8 BUs, each corresponding to an
individual branch; CIBC claimed only appropriate BU would be national b/c of for the
purposes of efficiency and ease of administration seeks to maintain standardized
procedures and uniformity of employment policy; hiring, assessment, promotion, discipline
and termination are local processes pursuant to managerial authority
- Issue: Is the single branch location an appropriate BU, given the competing functions of
the appropriate BU concept?
- Held: The single branch location of the CIBC meets the test for BU: it encompasses Ees
with a community of interest and is an appropriate BU.
- Reasons: Board states that one purpose of BU (freedom of choice / self determination)
must be weighed against “most rational, long term bargaining structure”;
- Broad consensus cross jurisdiction / industry that single location units are natural
and appropriate – “unusually large, widespread and diverse unit” of ALL Ees
Labour Relations
-
-
proposed by CIBC deviates sharply from this; “practical reality of the Er’s proposed
BU is that only an organization…with the enormous financial resources to operate
nationwide, in a concerted effort, for a long period of time,” could facilitate CB;
proposed BU isn’t realistic in terms of the way in which organizing actually occurs
(locally); high turnover of bank Ees would make efforts to organize one unit over
vast territorial, subdivided expanse futile for Us – Er’s proposed BU would frustrate
legislative intent
Bank requests national BU on basis of 2 broad rationales:
- 1. administrative efficiency and convenience in bargaining, administrative
convenience for lateral Ee mobility in a large unit, desirability of common e+
conditions
 Board notes that the bank is not now uniform and that “under branch
certification, centralized employer bargaining and the employees’
interests in uniformity and equality can result in uniform terms and
conditions of employment. This is the experience of multi-location
employers”;
- 2. reduction of potential industrial conflict and public policy concern: branch
certification would create ‘utter chaos’ in the “fiscal fibre” of the country and affect
property rights of all Canadians
Board distinguishes from cases where both ‘truly public employer OR essential
monopolistic enterprise’ AND cessation of work in one occupation could disrupt entire
system whereas cessation in branch would be contained in one unit
Note (344-5)
- Big banks rallied against organization and quashed efforts through aggressive antiunion
campaigning to the extent of committing ULPs; at bargaining table hostility was prevalent;
banks refused to bargain w/ U on multibranch basis (pointing to single branch cert); tapped
under-resourced U financially; raises only to non-U branches (ULP found); U failed to
conclude any CAs, decertifications, no successful U activity in actually securing better
terms and conditions then or since;
- 3 major reasons from Lennon for failure to organize banks:
1. small number of staff at each branch w/ large number of such potential units
meant huge organizational and bargaining costs
2. centralization in relation to single branch BUs meant disparity of bargaining
power and ability to easily resist improving U Ees terms and conditions over
non-U Ees
3. frequent transfer of personnel; high rates of staff turnover meant disappearance
of initial unionists and subsequent decertifications
69
Labour Relations
70
Syndicat des Employes des Banques Nationales de Rimouski (CNTU) v. National Bank of
Canada (1986)
- Romantic Rimouski case re cluster BU model
- FACTS: U tried to enhance bargaining power by seeking certification for a BU of all 5 branches
of bank in Rimouski; at the time bank had 11,000 Ees in 577 branches across Canada, majority
in Que; after cert application filed, bank closed one of the Rimouski branches, leaving 4; no
other bank branches in 25 miles
- ISSUE: Can a cluster of branches form an appropriate BU in the banking industry?
- HELD: The cluster is appropriate as a BU in these particular circumstances and the CLRB
recognizes it as the best means to facilitate CB.
- RATIO: The novel approach taken by the U in this case gave the board an opportunity to review
entire question of cert in banking (beyond single branch model) to take up suggestion from
Kitimat that a middle ground between National and single branch model could be developed;
board sees the intended scope as not ‘X number of branches’ but as a geographically-defined
socially-bound model (community-wide scope);
- Board rejects the argument of the Er, which is essentially that majority rule (entire premise of
NA cert system) isn’t fair; Bank labour relations expert gave evidence of current practice in
dealing with ‘common front’ which represents clusters of individually cert branches (given this
context, board doesn’t buy that cert would be disruptive if current practice ‘common front’ was
just replaced with certified U committee)
- Board cites with approval US model of movement from ‘splinter’ to ‘cluster’ model in industry
where Er has many branches & likes the ‘cluster’ better than the ‘splinter’ for “communities in
Canada…with characteristics similar to Rimouski…regions where there are concentrations of
people which call for the establishment of clusters of branches of chartered banks…almost
everyone, knows each other in Rimouski, as opposed to the anonymity of the large towns or
cities or metropolises elsewhere.”
- ** NOTE ** “This is a geographical unit, but the Board would not wish to have it seen as just the
same as a unit covering a city…Furthermore…the chartered banks have quite diverse structures
and, in fact, each case will have to be studied on its own merits…”
Notes (346-8)
- In National Bank of Canada the CLRB does not indicate whether the U had sufficient support for
each of 4 branches to cert, or just the requisite majority overall. The board does note that the U
support is not inordinately skewed. The overall majority support for whole is sufficient. Regional
or cluster BUs did not catch on in Ontario. Trust companies are within provincial jurisdiction and
Rimouski can be contrasted with OLRB decisions in trust company scenarios
Labour Relations
National Trust (no. 1) [1986] & National Trust (no. 2) [1988]
- FACTS: U had applied for BU of 7 out of 37 branches in what was then Metro Toronto;
company divided city into three regions: Central, Metro E, and Metro W; 6/7 branches
were in Metro E (of 14 in the region) and one was in Metro W (of 17 in the region); U
argued that it had enough support to be certified at each branch separately, and that
although 7 single-branch units would be an appropriate BU, a combined unit of 7 would be
more appropriate; Er said only appropriate BU would be to have single-branch units sideby-side with 3 regional units or a unit covering all of Metro Toronto
National Trust (no. 1) [1986]
- HELD: Agreed with U proposed BU (but rejected U’s request to combine both f/t and p/t
Ees in one BU.
- REASONS: Based decision that regional BU was appropriate on what proved to be an
erroneous assumption (that the U had majority support in each of the 7 branches); because
of the assumption, the OLRB thought that there was no danger that any of those branches
would be swept into CB against the wishes of majority of branch Ees (that there would be
no tension between the dual functions of BU)
National Trust (no. 2) [1988]
- HELD: Board denied U’s renewed call for determination of 7 branches as a single BU.
- REASONS: U, contrary to what it had asserted in National Trust 1, had majority support in
only 4/7 and was in a position to require a vote in only 1 of the remaining 3; the board
would not cert a multibranch BU unless the U could show a majority in each branch. In
Ontario at this time, a U could only be cert if it proved evidence of support from at least
55% of BU Ees and was entitled to vote if support was between 45-55%.
- Even with single-jurisdiction, single-Er enterprises, highly particularistic units may be
certified. Ex: university context; hospital context  high level of segregation in one broad
workplace. Notwithstanding difficulties of single-branch, single plant units in terms of Ee
bargaining power vis-à-vis a multi-location Er, Us may seek certification for such units
because they may be easier to organize.
United Rubber, Cork Linoleum & Plastic Workers of America, Local 1028 v. Michelin Tires
(Canada) Ltd., [1979]
- FACTS: company had two plants in Nova Scotia, 150 miles apart.
- HELD: single branch BU is acceptable. Provincial LB followed SORWUC reasoning in that
a unit comprising only the Ees at 1 plant was appropriate  the interest in facilitating
unionization in the first place favoured this conclusion.
- REASONS: there is an undeniable sacrifice of stability and the likelihood of a strike is
somewhat increased by the creation of two potential separate BUs, the Board accepts that a
strike at one plant would inevitably bring a halt to work at the other. Board notes that this is
an important consideration, given the unusual and demonstrable physical interdependence
of the plants. Board says that interdependence of separate operations of the same Er in an
economic sense is not rare given increasing business integration overall (even where
operations not owned by same Er). “these facts of economic life have never been held to
dictate single province-wide bargaining units.”
71
Labour Relations
Note (348)
In response to Michelin, the Provincial legislature in N.S. passed s. 24A (now s. 26) of the Trade
Union Act, commonly known as the Michelin Amendment, to overturn Board’s decision. Under s. 26,
when an Er operating interdependent manufacturing locations so requests, the Board must find that the
appropriate U is one that combines Ees from all the locations.
Michelin Amendment and order pursuant to it have the effect of declaring that appropriate BU consists
of both Granton and Bridgewater plants.
“The Michelin Amendment in Context” (1981) (Brian Langille)
- Michelin Amendment either:
1. makes a serious and unnecessary error in reconciling the tension between the 2
functions of BUs; OR,
2. recognizes that tension and exploits it in order to render organization extremely
difficult
- If the amendment was formed with the purpose of attracting industry in the province by
guaranteeing BU orders that will result in broad-based or stable, it is clear that the
legislature has struck the balance between the conflicting tensions in BU theory totally in
favour of long-term industrial relations stability at the expense of the other value at stake,
the ability to organize at all; this error is unnecessary – recent developments in BU
determination in BC demonstrate that in may be possible to reconcile the functions
creatively  to facilitate organization while fostering stability:
- Amon Investments Ltd (1978) where Er had 13 locations and U applied for a
unit at 1 location; Er urged appropriate U was all 13 locations, relying on precedent
favouring large units and stable, unfragmented bargaining relationships; Board
concluded single unit was correct but qualified by saying that the future
organization of the Ees of this Er must be accomplished by a variance of the
presently certified U (interest is in allowing Ees to exercise collective rights while
accommodating Er concerns).
 Amon Principle, according to Langille, successfully achieves a
reconciliation of the conflicting purposes of the BU  this principle could
ensure long-term stable and broad base bargaining structures that are crucial
to multi-location manufacturing, without ignoring the other function of BU
determination
- Key distinction between Amon and Michelin which makes Michelin more difficult: not a lot
of jurisprudence on the issue of multi-location Ers in manufacturing; especially regarding
functionally interdependent operations such as Michelin (retail and service sector cases
don’t involve functional interdependence)
- Board’s interest in long range industrial stability means that functional interdependence is
an important element of BU determination [separate cert of a number of functionally
interdependent units would = instability] Michelin Amendment went further and argued
that because of functional interdependence a fundamental question of democracy is
triggered by attempted unionization of Michelin’s plants. The argument is based on
concern, not for long-term stability, but for present tense fairness where a strike at Granton
would put non-striking Bridgewater Ees out of work and that it would be undemocratic to
allow Ees at Granton to control non-U at Bridgewater
72
Labour Relations
-
-
-
Concern re democratic deficit is refuted on two counts: i) functional interdependence is an
economic reality that crosses Er lines & ii) this argument ignores the fundamental problem
for Boards in determining units: while it may seem more democratic to consult all Ees at
the outset, this ignores pragmatic difficulties of organizing very large BUs, especially in the
fact of Er opposition campaign
Abstract appeal to democracy rings hollow where there is no real equality between the two
sides in terms of conveying information and consulting (as in Michelin where there the no
solicitation rule was in force)
Amon principle and board decision in Michelin represent efforts to strike balance between
competing principles in order to ensure a fairer degree of political equality. Amon principle
also removes the potency of the democracy argument b/c in the end we are all consulted
and in a meaningful manner without the sacrifice of long-term stability
73
Labour Relations
DETERMINING EMPLOYEE SUPPORT
Certification is a process built around concept that the choice of whether or not to have CB is given to
the majority of Ees in the BU; nonetheless there are divergences about how presence or absence of maj
support is determined.
- In NA there are 4 models for determining maj support: in US there is a representation vote
in every case, preceded by lengthy campaign in which Er is entitled to fully participate; in
Canada, various approaches used to limit the opportunity for ULPs by Ers or undue
influence on Ees.
- 3 Canadian models:
1. a quick vote in every case
a. Pioneered by N.S. under s. 25 of Trade Union Act where vote is normally
held within 5 days of the filing of an application for cert. Rationale is in the
perceived reliability of quick vote as secret ballot but nevertheless leaving
little time for Er to bring pressure on Ees
b. ON. has same rule subject to board directing otherwise
c. BC requires vote in 10 days, unless held by mail in which case board has
discretion to set time length
d. AB Labour Relations Code, s. 32(1)(d) requires vote in every case w/ no
time stipulated by legislature (votes usually occur w/in 2 weeks of
application)
2. primary reliance on membership evidence (generally in the form of signed
membership application cards), with brief period after the cert application is filed to
allow for change of heart petitions
a. In other jurisdictions votes are possible but not required.
3. primary reliance on membership evidence as of the date of application
a. Federally, the Canada Labour Code contains procedure premised on the
notion that ‘petitions’ reflecting change of heart are inherently suspect,
even w/o proof that they were inspired by Er pressure, are only taken into
account if improper U conduct in obtaining membership evidence is alleged.
It is the norm to certify U if its membership evidence shows maj support on
date of application
i.(or the board may choose a date preceding date of application if it
concludes that Er interference cause the U to lose majority support
shortly before the latter date)
TIMELINESS OF CERTIFICATION AND DECERTIFICATION APPLICATIONS
- Basic principle with respect to the timeliness of cert application is that a U may apply
at any time to be certified as a bargaining agent for a unit of Ees who aren’t already
covered by CB.
- There are a number of key exceptions, commonly known as “bars”, which vary
considerably from jurisdiction to jurisdiction. The bars are designed to balance the need for
stability in a CB relationship against the Ees’ right to get rid of a bargaining agent they
don’t want and the Er’s interest in not having its work force targeted by overly frequent
cert campaigns.
74
Labour Relations
-
-
-
-
-
-
Generally a U that has failed in earlier attempt to establish maj support in a particular BU,
or that has withdrawn application, either before or after vote held is barred for a certain
period by board practice or statute in regard to the same unit
Similarly, because recognition strikes are unlawful, a board will often dismiss cert
applications that are made w/ respect to Ees who are engaged in unlawful strike or will at
least adjourn the application until work resumes
Very tight bars re: instances where Ees are represented and a rival U wants to apply for
cert; To give newly cert Us a chance to get established, most LR statutes give 10-12m after
cert in which to reach CA w/ Er; during this no other Us or dissident Ees can apply to
displace new bargaining agent; this bar can be extended by advent of statutory conciliation
process or by a legal strike or lockout; fledgling Us that have been VR’d generally have
less protection as policy interest is to limit entrenchment of Er-influenced bargaining
agents
If U concludes CA, an application to terminate its bargaining rights can still be brought by
another U or by Ees w/in the BU, but only during ‘open season’ (in ON last 3m of CA
term);
Automatic decertification of bargaining agent and CA voided where cert was obtained by
fraud (this type of challenge is more likely to occur in card check jurisdictions)
In some jurisdictions, including ON, statutory amendments in recent years have made it
somewhat easier than in past for Ees of BU to apply for decert; decert by Ees is subject to
same timeliness requirements as decert by rival Us; if Board has evidence that a certain %
of Ees in BU no longer support the U will generally order decert vote
U can also have its bargaining rights extinguished if it abandons them (failure attend to
renewal, negotiation or administration of CA)
75
Labour Relations
76
SUCCESSOR EMPLOYERS, CONTRACTING OUT, AND RELATED
EMPLOYERS
Successor Employers
- In absence of any statutory provision to the contrary, change in the Er’s corporate identity ends
any statutory bargaining rights by which the ‘old’ Er was bound (and any CA negotiated
pursuant to bargaining rights). As a result of this all Can LR statutes provide for significant
protection to existing bargaining rights where business sold, transferred to new Er
- These type of provisions only apply where the LB finds transaction in question does indeed
constitute sale of a business; In Ajax we see some flexibility in board’s finding of sale of
business
Ajax (Town) v. National Automobile, Aerospace and Agricultural Implement Workers Union
of Canada (CAW-Canada, Local 222 (1998)
- FACTS: For many years Ajax (A) contracted with Charterways (C) to provide town with
transit staff, who were Ees of C and were represented in CB with appellant U; C recruited,
hired, trained, disciplined, schedule and deployed the Ees; K between C and town made
clear importance of continuity and stability in workforce; in 1993 A decided to end
arrangement and take back control of transit system; town cancelled K with C and hired its
own transit staff; when A terminated C, C had no comparable employment to offer the Ees;
A conducted hiring to ensure ‘substanital continuity’ (23/30 drivers and 3/4
cleaners/maintenance hired by town were from C); U sought declaration that circumstances
consituted sale of business under meaning of OLRA s. 64 (successor rights provision);
OLRB granted U declaration; Div Ct quashed on basis of patent unreasonableness
- ISSUE: Did the transfer of work/workers from C as Er to A as Er constitute a sale of
business within meaning of s. 64 of OLRB? [Was the OLRB interpretation of s. 64 in
application to these facts patently unreasonable?]
- HELD: [Board decision not patently unreasonable]; C and A contracted a sale of part of
a business within the meaning of s. 64 of the Act.
- REASONS:
- Board:
 The Board had to determine whether these facts had involved a “sale” of a
“business” for purposes of s. 64; taking the facts into account, Board
concluded that business of C occurred through employ of identifiable Ee
compliment w/ specialized A transit skills; operational requirement of Ee
stability meant that workforce was most valuable business asset and
distinguishing ‘part’ of the “business”. By acquiring substanital part of Ee
group that C had depended on to perform its K obligations to A, A
transferred to itself an essential element of that business.
- Lower Court:
 Nothing occurred between C and A that can reasonably be said to have
caused “sale, transfer or disposition” of Cs’ “business or a part thereof”; no
“nexus,” “legal act” or “legal relations”. As such decision of OLRB held to
be patently unreasonable.
- ON CA:
Labour Relations
77




Statutory definition is inclusive: “‘sells’ includes leases, transfers and any
other manner of disposition.”; legislation is remedial w/ purpose of
preserving bargaining rights and should be given a broad and liberal
interpretation; it is not required that the transfer take any particular
legal form nor take place by way of a legal transaction.
Cites McLachlin, J. in W.W. Lester w/ the standard that notwithstanding the
broad discretion of LBs to determine whether mode of disposition
constitutes successorship, such provisions require that “something must be
relinquished by the predecessor business on the one hand and obtained
by the successor on the other”
Here, as a result of the K relationship w/ A, C had developed specialized Ee
cohort and this was the business C carried on for town; with termination by
A, C relinquished Ees, most of which was acquired by A. Commercial
history, without which town’s acquisition of work force would not have
happened, is sufficient nexus btwn C and A; transfer of work force = “sale”
or “transfer” w/in meaning of s. 64
Significant “part” of business = not just the work or the Ees themselves –
rather, there was the added value of continuity, experience and stability of
work force.
Termination of Bargaining Rights
Tenaquip [1997] OLRB
- FACTS: Hepworth (BU Ee) and Fraser (non-BU Ee) cooperated to drive for decertification; 2
weeks prior to singing of petitions they posted a notice re attempts to decert; over next 2 weeks
no responses; H and F began to solicit and secured petitions from most of the Ees; they
summoned each member of the BU to company boardroom, met two on one individually
over 1 hour to present petition; meetings during working hrs; H says never sought Er’s
permission to use boardroom for purpose of soliciting; denied any “deal” with Er; neither F nor
any Er representative testified as to whether there was conversation in respect to application;
witness stated that he would have assumed H and F had Er’s permission to use boardroom and
that other Ees would have thought so too; H and F had ready access to Er resources and took two
hours off work to deliver application to U and ER and file with Board and neither gave nor was
asked to provide reason for absence; U argues s. 63(16) and s. 70
- ISSUE: Was Er conduct sufficient to warrant Board exercise discretionary power under s.
63(16) and dismiss an application for termination of bargaining rights?
- HELD: Er conduct was within meaning of s. 63; Er met the test for initiating;
decertification is dismissed.
- ANALYSIS: Act permits Board discretion to dismiss application if it is satisfied that the Er or a
person acting on behalf of the Er initiated the application, or engaged in threats, coercion or
intimidation in connection with application.
- In order to successfully defeat an application for decertification on the basis of s. 63(16), U must
point to specific evidence in support of allegations; HOWEVER, “by its very nature…covert Er
initiation of a termination application is unlikely to be an easy matter for a U to…
establish…while the onus is clearly upon the U, the Board does recognize that
circumstantial evidence may be sufficient to lead to an inference of improper Er
involvement. An Er who chooses to call no evidence in the fact of such circumstantial
Labour Relations
-
-
-
78
evidence obviously does so at its peril”; circumstantial (un-rebutted) evidence suggests
active cooperation,
Facts indicate that the Er was, at an “absolute minimum,” aware of activities of H and F. TEST
for whether there is Er initiation: early and material involvement in or giving rise to or otherwise
significantly facilitating the application
Use of company resources “would lead a dispassionate observer or a reasonable Ee to conclude
that the Er directly supported the application in the absence of any evidence to the
contrary…petitioners’ conduct was open and notorious” ; Er allowed conduct even though they
would reasonably know that a reasonable Ee would have concluded efforts of petitioners had
explicit support of Er; Er contributed to application by permitting petitioners’ activities and
contributing resources which were significant to facilitating the application & by cooperating and
tolerating petitioners’ actives, Er communicated explicit and important message to Ees that it
supported the application for decertification.
Effect of Er’s contribution can be seen in the transition from early efforts which were not
successful and then the “jumpstart” that the petitioners were able to achieve with Er support two
weeks later; clearly Er’s contribution, which was made at an early or formative stage of the
application, was both significant and influential. Without Er’s contribution, the petitioners would
not have been in a position to solicit the requisite number of Ee signatures necessary to support
eh termination application.
Labour Relations
79
Chapter 7 - Negotiating a Collective Agreement
Introduction
-
Bargaining is the core of CB legislation.
Status of exclusive bargaining agent supersedes individual bargaining between the ee and the er
and restrains the er from bargaining with another union.
In regular commercial bargaining, the parties are able to walk away if they do not make an
agreement; it is not the case with labour relations bargaining;
- Employer is often unwilling to bargain;
- CBAs are almost infinitely variable; parties can’t simply terminate the agreement and
find another buyer/seller of labour;
- Each can apply huge pressure with strike/lockout.
The Statutory Timetable
-
Starts with the certification of the union as the exclusive bargaining agent for the employees.
Union then serves a notice to bargain or er can serve it to the union.
Where union already has an agreement, they or the er can serve notice before or when the current
CBA expires.
Notice triggers a duty to bargain ‘in good faith’ (subjective), making ‘every reasonable effort’
(objective) to reach a CBA.
The duty remains until they reach a CBA, but they do not have to reach one, just try.
Before strike/lockout, legislation requires conciliation/mediation.
State does not generally impose a CBA; except ‘first K arbitration’.
Duty to Bargain remains during strike/lockout. But content of duty changes:
Once and agreement is made, legislation makes it illegal to go on strike/lockout and duty to
bargain suspended until time to negotiate a new agreement.
Parties can change the agreement, but only of it is mutual.
Grievance arbitration is required in all CBAs.
The Bargaining Freeze (See Chart Above)
-
There are provisions that prohibit changes in the terms/conditions of employment after notice to
bargain has been given.
There is some difference for when this freeze ends; in Ontario, it is the point that the union is
lawfully allowed to strike. At that point, the employer can change the terms unilaterally because
the employees have the right to strike if they do not want to accept them.
The Duty to Bargain in Good Faith
Purpose of the Duty to Bargain
“The Duty to Bargain in Good Faith” (Archibald Cox)
- Four reasons the law requires the er to bargain in good faith:
1. Reduce the number of strikes for union recognition: Er has a statutory obligation to
bargain with a union which the majority of ees have allowed to represent them.
Labour Relations
-
80
2. Help equalize the power between er and ee: would be a major blow to a union if, after
they were recognized as the exclusive BA for the ees, the er refused to bargain. This
statutory obligation prevents anti-union tactics.
3. Upholds the idea of CB, that ers and ees are equal partners. One partner cannot do
something without consulting the other. Terms of employment should be determined by
mutual consent.
4. Rational process of persuasion: enable ers and ees to gain a better understanding of the
other side: e.g. state of the industry, the conditions which confront the other side, and
motives which influence it.
Only the first two are explicit in CB legislation.
Content of the Duty to Bargain
United Electrical, Radio and Machine Workers of America v. DeVilbiss (Canada) Ltd. (1976),
76 CLLC para 16009 at 404-5 (OLRB)
- The provision (s. 17 of the LRA) reinforces the obligation to recognize a trade union lawfully
selected by employees.
- The right to join a trade union (provided in the LRA, s. 3) would by useless if an er had no
intention to sign a CBA.
- The duty to bargain is important in modern society, where trade unions have a legitimate and
important role to play.
- More likely that parties are going to understand the other side’s position
- Section 17 of the Ontario LRA has two principle functions:
1. Reinforces obligation of the er to recognize the BA.
2. Fosters rational, informed discussion thereby minimizing potential for
‘unnecessary’ industrial conflict.
Graphics Arts International Union Local 12-L v. Graphic Centre (Ontario) Inc., [1976] OLRB
Pre. 221 at 229-31
- FACTS: Employer served notice on union to renegotiate a CBA. Union tabled twelve proposals;
Employer wanted to maintain status quo. Union applied for conciliation, which did not resolve
the dispute. Ministers issued no-board report, starting countdown to legal strike position. Union
rejected compromise position put forward by the er.
- Another proposal was put to the ees, who voted to accept it, and results were give to the
er.
- During negotiation union brought a grievance under the old CBA, saying the er had
breached the CBA by hiring a certain person.
- Union said it waited till that point to avoid jeopardizing the negotiations.
- Er refused to sign the accepted agreement unless the grievance was dropped.
- Then the er put forward 16 new demands for change to the CBA.
- Union went to the board, saying the er failed to make every reasonable effort to conclude
a CBA.
- ANALYSIS: The decision making capability of the parties depends on open discussion of items in
dispute and an awareness that the scope of the dispute is limited to items which came up in the
early stages of bargaining.
- Parties which introduce things late in bargaining, destroy the bargaining framework.
Labour Relations
-
81
RATIO: Tabling additional demands after dispute has been defined, in the absence of
compelling evidence, is a violation of the duty to bargain in good faith.
- Tabling of grievance did not justify the er’s tabling of 16 new demands; therefore, the er
violated of the duty to bargain in good faith.
Canadian Assocation of Industrial, Mechanical and Allied Workers v. Noranda Metal
Industries Ltd., [1975] 1 Can. LRBR 145 at 162
- FACTS: During negotiations for renewal of a CBA, er sent letters to each ee to bring pressure on
union to alter its position on fringe benefits, emphasizing difference between unions and er’s
position.
- Union asked er to disclose cost to the er of the benefits in question and the er refused.
- Union said that the refusal to give the information was a violation of the duty to bargain
in good faith.
- ANALYSIS: Long held that a party commits an unfair labour practice if it withholds relevant
information without reasonable grounds.
- Er that is withholding info that the union needs to appraise a proposal on the table is not ‘making
every reasonable effort to conclude a collect agreement’.
- “negotiation nourished by full and informal discussion stands a better change of bring
forth the fruit of CBA than negotiation based on ignorance and deception.”
- Since the er sent out the letters making it an obstacle; the cost of the program was known; and
union would have reasonably believed there would be a discussion of the factual underpinnings
of the fringe issues.
- Therefore, the er was in violation of the duty to bargain in good faith.
- RATIO: Parties have to provide all information which is known and relevant to reaching a
collective agreement.
Labour Relations
82
Substantive and Procedural Obligations Imposed by the Duty to Bargain
- Clear breach to propose a term that is illegal; e.g. below minimum wage required by ESA.
- Parties who propose to violation substantive statutory requirements are in violation of the duty to
bargain in good faith b/c they are not making reasonable efforts to reach a CBA.
- However, there are types of proposals that ers or unions can put on the table, but if the other side
does not accept, the proposing party cannot press to an impasse (threatening strike/lockout).
- e.g. proposals to reduce/expand size of the BU; institute of maintain mulit-er bargaining
in situations where bargaining rights exist only on a single er basis.
- Otherwise, parties are pretty free to decide tactics and which matters will come up and which are
worth pressing to impasse. Nonetheless, LRBs have imposed some limits on that freedom.
- The distinction between ‘surface’ and ‘hard’ bargaining.
- Surface: going through the motions with no intent to reach agreement, inflexibility
to issues which are central to bargaining, Breach of the DTB.
- Hard: not a breach of the DTB.
United Steelworkers of America v. Radio Shack, [1980] 1 Can. LRBR 9 at 123-28, 145
(OLRB)
- FACTS: Union had been certified without a vote due to unfair labour practices. 30 Nov 1978,
union served notice to bargain. Asked for name, classification, and seniority date of each
employee and details on fringe benefits.
- Union proposed an agreement, which asked for a union shop clause (dues to come off pay
stubs), but er refused.
 Er’s response was ridiculous. Er’s parent company hired a lawyer to help out.
- Many issues were resolved, but left was the dues check off (Rand formula clause).
- Er not willing to give any ground unless union threatened strike; union went on strike 8
Aug 1979.
- Er photographed ees on picket line; lied, telling ees decertification application was being
prepared.
- Union said er breach sections 17, 70, 72, 73, and 76 of the Ontario LRA.
- ANALYSIS (Adams): Er’s activities were continuation of earlier anti-union animus; er failed in
its duty to bargain in good faith and make every reasonable effort to reach a CBA.
- Due to the er’s past conduct the board wants the er to explain the items that it refuses to budge on
in order to show that it is serious about bargaining.
- The lawyers hired to help the er out appears to have no influence on the er’s actual position.
- The officials/management of the er refused to testify.
- Respondent’s position fits with it’s earlier anti-union animus.
- RATIO: The er says that it should not have to adopt the Rand formula clause b/c the union
does not have great support; however, since the er has caused this lack of union support
due to activities which display anti-union animus, the board finds that the refusal to accept
the Rand formula is a violation of the duty to bargain in good faith, even though the statute
at the time only requires for voluntary check-off.
- At the time, the statute only required a voluntary check-off: ees would have to request that the er
deduct uion dues from her/his wages.
- But obviously, ees would be afraid to show this er that they supported the union, due to er’s antiunion animus. There was no way the union could accept voluntary check-off.
Labour Relations
-
-
83
Even though there was progress after the lawyer was brought in, the er still was bargaining in
bad faith and not making reasonable efforts to conclude a CBA.
Board says that the er’s position on voluntary check-off (union security) was meant to avoid a
CBA and consistent with its earlier conduct.
It is surface bargaining: going through the motions; no intent to conclude an agreement.
- Act allows parties to take firm positions (hard bargaining) and engage in economic
sanctions (strikes/lockouts).
But with all the evidence (look at the situation in total), there is inflexibly to issues which are
central to bargaining.
Therefore, since the er participated in surface bargaining, they are in violation of sections noted
above.
Dissent (Bourne):
- Says that the er was just engaged in hard bargaining and the union took firm positions as
well.
- The hiring of the lawyers (changing its team), which brought the number of issues in
disagreement to three shows that there is good faith.
Canadian Union of United Brewery, Flour, Cereal, Soft Drink & Distillery Workers, Local No.
304 v. Canada Trustco Mortgage Company, [1984] OLRB Rep. 1356 at 1363-65
- FACTS: Union Certified as bargaining agent at two of many Canada Trust branches in Ont. It
negotiated an agreement for one, which included the terms that non-unionized branches had,
with marginal improvements.
- In negotiating the other branch, it was willing to offer only minor improvements over the terms
in the first agreement.
- Union brought complaint that the er was bargaining bad faith.
- Board concluded that this was hard, not surface, bargaining.
- ANALYSIS: Board does not want to prescribe the precise contents of the parties’ CBA;
that’s for the parties to decide.
- It’s true that sometimes an er’s position at the bargaining table may be so patently unreasonable
that it shows that the er has no intention to reach a CBA.
- It’s okay to use one’s power at the bargaining table to get what they want; economic
pressure; that’s merely hard bargaining.
- The statute requires collective bargaining, not co-determination. If one party has more
power than the other, then too bad!
- In this case, the er’s position is merely hard bargaining in pursuit of business objectives and legit
self interest.
- It was willing to sign an agreement similar to the St. Catharine’s branch.
- There is no breach of the act.
Labour Relations
84
To what extent can Labour Boards scrutinize the contents of bargaining proposals?
Majority of SCC found that where a party refuses to including in its proposals terms that have been widely
accepted in other CBAs throughout a particular industry, it may be appropriate for the board to find a breach
of the party’s duty to make every reasonable effort to reach an agreement.
Royal Oak Mines v. Canada (Labour Relations Board), [1996] 1 SCR 369 at 369-89
- FACTS: Unionized workers in Yellowknife, NWT voted overwhelmingly to reject a tentative
agreement put forth by the er.
- Bitter dispute; violence; disruption to community; bomb explosion; nine deaths.
- Various attempts were made to find a settlement, through mediation and appointment of a
conciliation commission.
- Canada LRB determined that the er bargained in bad faith by refusing to bargain until a
particular certification issue had been resolve, imposing a probationary period on all returning
strikers and, most importantly, refusing to negotiate until the issue of reinstatement/discipline of
several ees accused of serious picket line violence had been resolved.
- Board ordered the er to put back on the table a tentative agreement that it had put forward earlier,
but that the union had at the time rejected, with the exception of four items where the er had
changed its position.
- Parties were given 30 days to settles those issues.
- Er applied for judicial review; rejected by the federal court; then appealed to SCC.
- ANALYSIS: Party found in breach if they do not bargain in good faith, or they do not make every
reasonable effort to enter into a CBA.
- Duty to enter into bargaining in good faith must be measured on subjective standard.
- Making reasonable effort to bargain should be measured on objective standard,
which can be ascertained by looking at comparable standards in a particular
industry.
- When viewed objectively, a party may be so far outside the norms of an industry that they must
be seen as being unreasonable.
- Er cannot take a position that would be unacceptable to virtually any organization of workers.
- Here the er has refused to include a grievance arbitration clause.
- This is a widely accepted condition in the mining industry; therefore, it shows that the er is
taking part in surface bargaining and has no intention of reaching an agreement.
- RATIO: If a party proposes a clause or refuses to discuss a basic/standard term that is
acceptable and included in other CBAs in comparable industries through the country, it is
appropriate for the labour board to find that the party is not making a ‘reasonable effort to
enter into a CBA.’
- Denying a grienvance procedure, which no union would accept, is a lack of good faith
bargaining.
- The board’s decision was not patently unreasonable (standard of review determined by the SCC)
and therefore it stands up to review.
Labour Relations
85
Disclosure of Decisions or Plans Substantially Affecting the Bargaining Unit
Westinghouse Canada Ltd., [1980] 2 Can. LRBR 468 at 489 (OLRB)
- FACTS: During negotiations for renewal of an CBA, company was considering moving plant
from highly unionized Hamilton to several less unionized places.
- The union did not ask; the company did not bring the plans up in negotiation.
- After the agreement was renewed, the company announced plans to move and proceeded
with the move.
- The union filed a complaint arguing the duty to bargain in good faith and unfair labour
practice.
- BOARD: Company did commit unfair labour practice, but did not breach duty to bargain in
good faith.
- RATIO: Duty to bargain places an obligation on the Employer to respond honestly to union
inquiries about company plans that may have a significant impact on the BU, but does not
require the company to reveal, on its own initiative, plans that have not yet ripened into at least
de facto final decisions.
Sunnycrest Nursing Homes Limited, [1982] 2 Can. LRBR 51
- Ont board found it was a breach of the duty to bargain in good faith where the decision to K-out
a substantial portion of the BU’s work had been taken before/during negotiations with the union.
Plastics CMP Limited, [1982] OLRB Rep. 726:
- Similar result as Sunnycrest even though the company that got the K hired the laid off ees of the
K-er’s company.
“Equal Partnership in Canadian Labour Law” (Brian Langille)
This article offers a critique of the decisions above.
1. These decisions create an incentive towards non-disclosure which is contrary to the duty
to bargain in good faith.
 It’s easy for an er to reach an agreement that makes no mention of plant closures
and the like if the union is unaware of the probability of such occurrences.
 Sunnycrest offers a disincentive for ers to implement changes; Westinghouse a
disincentive to reveal possible/actual decisions.
 Incentive for the er is to shut the hell up, lock the union into an agreement and
then reveal the changes
 There is an incentive to non-disclosure which ers are exploiting, as seen by the
case law.
 This is in conflict with the purpose of the duty to bargain in good faith.
 General law of K bargaining, non-disclosure is accepted, b/c there is no duty to
bargain in good faith.
 In labour bargaining, there is a duty to bargain in good faith.
 This duty is supposed to ‘foster rational, informed discussion thereby minimizing
the potential for unnecessary industrial conflict.’
 Therefore, it appears that the board has not made the content of the duty
adequately clear in the face of incentives to non-disclosure.
Labour Relations
-
86
2. Limiting disclosure on the er’s own initiative to cases where the decision has been
finalized is problematic.
 The board says that management is always considering an array of changes that
may affect the BU, but they don’t always manifest themselves in hard decisions.
 The board says that making such things known would slow the bargaining
process, b/c they may be seen as a threat to the union which may overreact.
 This reasoning assumes that efforts to bargain collectively and possibly codetermine outcomes would not produce desirable, but rather adverse effects b/c
the union would act irrationally.
 It assumes the union has and should have no say in the decision making process.
 In order to have a useful duty to bargain in good faith, such a duty contain a
requirement for parties to reveal to the other side information that will have a
substantial effect on the BU.
 It fails to rationalize the bargaining process; distorting it b/c the parties cannot
benefit from having all the necessary information.
Does not give the union the ability to require provisions that will protect its members in the final
CBA.
The Ontario board responded to these types of criticisms in…
International Woodworkers of America, Local 2-69 v. Consolidated Bathurst Packaging
Ltd., [1983] OLRB 1411 at 1435-45
- FACTS: Union and er negotiated renewal of a CBA for an all-ee unit of a Hamilton plant.
- Union tried to negotiate better provisions to deal with plant closures and severance, but they
settled with the old provisions.
- At no point did the er indicate they were going to close the plant, but a few weeks after they
signed the renewed CBA, they announced they were shutting the Hamilton plant down.
- Union complained the er violated the duty to bargain, arguing:
- Er’s decision to close the plant had been finalized during bargaining; therefore had to be
communicated due to ratio in Westinghouse.
- Board has to reconsider Westinghouse and require disclosure when an er is seriously
considering an action which would have serious impacts on the members of the BU.
- Board should find a duty to bargain with the union over major/unexpected changes
introduced or intended to be introduced during the life of an agreement.
- Board refused to extend the duty into the life of the agreement (argument 3), but held the er had
made the decision before the renewed CBA was signed; therefore, violating the duty to bargain.
- ANALYSIS: Collective bargaining void of a duty that continues into an agreement and making it
illegal to strike during a CBA minimizes the likelihood that parties will bargain around issues
that come up during a CBA. Also creates an incentive to hold off on major decisions until they
have the union in an agreement.
- This must be taken into account when assessing the evidence and an er’s justification.
- However, board should be wary of its policy making limits; legislatures have set out the
statutory purposes of the bargaining duty and its contents.
- There is a long standing requirement that the er has to respond honestly to any inquiries that the
union makes; this is part of the adversarial process.
- However, Westinghouse also states that the er has to disclose decisions that the company has
already made and which the union could not have anticipated.
Labour Relations
-
-
-
-
87
Unions say disclosure is needed in CB b/c it gives ees an opportunity to have a say in decisions
which affect them. If they are not put on notice, they will not be able to develop response
strategies and CBAs will be silent on the point, allowing ers to act unilaterally.
Unions say unsolicited disclosure based on standard of hard decisions is too subject to
manipulation; the standard should be lower.
Westinghouse does not limit itself to unsolicited disclosure only after a board of directors has
given final approval; it used the term de facto decisions.
There are problems around confidentiality and impacts on the bargaining process which are very
real if plans are disclosed.
RATIO: When a decision to close a plant (thereby extinguishing a BU) comes on the heels of
an agreement, this raises a “rebuttable presumption that the decision-making was
sufficiently ripe to require disclosure or it was intentionally delayed until the completion of
bargaining.” (427)
Court rejects the unions request to lower to standard required for unsolicited disclosure (from de
facto decision to seriously considering).
Board is not ignoring the interests of ees by requiring a questioning approach to disclosure as a
general matter.
There is already a lot of uncertainty around when information needs to be disclosed without
solicitation; therefore, the board wants to limit unsolicited disclosure to exceptional
circumstances.
CONCLUSION: de facto decision had been made; therefore, it fit within Westinghouse.
Remedy was not to reopen the plant, but rather damages to the union for the loss of
opportunity to negotiate on matter of the plant’s closing.
How should the law deal with the realities of restructuring in today’s economy? Should it be look to
alternatives to CB or tailor CB to be able to address this reality? Is this a necessary reality (the book does
not ask that question)?
Labour Relations
88
Remedies for Violating the Duty to Bargain
Remedy should not been seen as a penalty; money only given as compensation to union for failure to get
pay increases/other benefits it failed to win as result of er’s actions.
- Generally does not want to impose a CBA on the parties; exceeding statutory mandate and
deviate too far from principle of free CB.
- Typical remedies include: cease and desist orders, order to bargain in good faith, publish
retractions of false/prejudicial statements, pay injured parties negotiation costs.
- Critics says more regulation needed to fulfill the objectives of the legislation.
- Ask for substantive regulation of bargaining proposals on standard of reasonableness.
Royal Oak Mines v. Canada (LRB), [1996] 1 SCR 369 at 402-23
- FACTS: Outlined above, remedy in question is an order to have the er put a offer it had made
previously with certain modifications, ie. The addition of a back-to-work protocol specifying that
arbitration would be available to adjudicate grievances brought by any ees who were discharged
by the er during the strike which occurred during bargaining.
- ANALYSIS: (Cory, HD, Gonthier JJ.): Legislation gives the LRB wide remedial powers.
- They have to be made to satisfy the goals of the labour code, that is resolve labour disputes
for benefit of parties and public.
- Remedy must be rationally connected to the breach and its consequences.
- Only if it fails to do that will it be outside of its jurisdiction and patently unreasonable.
- The decision in this case was not patently unreasonable.
- This dispute was destructive to the employment relationship and the broader community of
Yellowknife. The board was obligated to take this into account when fashioning a remedy.
- The remedial section (s. 99 (2)) of the Canada Labour Code gives the board the power to make
the er do or refrain from doing any thing that will remedy the situation.
- Applicant says the board imposed a CBA on the parties, which is outside its jurisdiction.
- But really, the board just made the applicant re-offer an agreement it had put on the table in the
past, then given the parties 30 days to negotiation within that agreement before they would be
subject to binding arbitration.
-
There will only be four situations where the board’s remedial order will be patently
unreasonable:
1. Where a remedy is punitive.
2. Where the remedy granted infringes the Charter
3. Where there is no rational connection between the breach, its consequences, and the
remedy (National Bank).
4. Where the remedy contradicts the objects and purposes of the Code.
-
Appellant argued that the order failed 3 and 4.a. Rational Connection: Must be a connection
between the unfair practice which occurred, its consequences for bargaining, and the remedy
imposed.
- Board ordered er to table an agreement based on its own tentative agreement, which
included a grievance arbitration clause; therefore, just putting the parties back to the
position they would have been in were it not for the er’s breach of the duty to bargain. It
gets them back at the table; therefore, there is a clear connection.
Policy Consistency
-
Labour Relations
89
-
-
Er says free CB supersedes all other objectives in the labour code.
That is not true, there will be situations where free CB will need to be compromised
when found that a party has not been bargaining in good faith and failure has frustrated
the formation of a CBA.
- Here the er was bargaining in bad faith which put an end to true bargaining between the
parties. The affects trickled out, harming the community.
Therefore, the remedy is fine and the appeal is dismissed.
Buhler Versatile Inc
- Board found the er’s breach of the duty to bargain in good faith led to a legal strike; remedy was
to compensate each employee who was a member of the BU and employed by the er at the time
the strike started for lost wages and benefits they would have earned if the strike had not
occurred.
Labour Relations
90
Chapter 8 – Industrial Conflict
A Constitutional Right to Strike?
Unions have argued that section 2 (d) of the Charter (association) provides Canadians with a constitutional
right to strike.
The Courts have not bought this argument.
Reference Re Public Service Employee Relations Act (Alberta) (1987), 87 CLLC para. 14,021
at 12,151-63.
ISSUE: Does section 2 (d) of the Charter provide a constitutional right to strike?
Decision: Section 2 (d) does not include a right to strike/collective bargaining.
ANALYSIS:
LeDain J:
o The unions argue that freedom of association is meaningful if it extends to the activities
which give associations meaning (e.g. strikes/collective bargaining).
o LeDain says that freedom of association does not extend to the particular activity of an
association in pursuit of its object.
o This is something that requires a balancing of competing interests (employee vs. employer);
therefore, it is best left to the regulation of the legislature (institutional incompetence?).
McIntyre J:
o The issues is whether the scope of s. 2 (d) extends the activities of associations. McIntyre
does not think that freedom of association extends to the activities of an association.
o Freedom of association is an individual right, it does not “invest individual rights in the
group” which would be greater than the rights which an individual holds.
o If the right is not in the charter for the individual, it is not held by the group: therefore, since
collective bargaining is not in the charter as an individual right, freedom of association does
not protect collective bargaining (see Dunmore for an update on the jurisprudence)
Scope of Freedom of Association, which McIntyre supports:
1. Right to associate with others in common pursuits or for certain purposes.
2. Freedom to engage collectively in those acts which are constitutionally protected for each
individual (US Const Law)
3. Groups are entitled to do as a group what may be done alone; what is illegal to do alone is
illegal to do as a group.
This definition of freedom of association does not protect the right to strike.
Policy Reason for not constitutionally protecting the right to strike:
Labour Law is based on political/economic compromise between two powerful socio-economic
forces: organized labour and employers.
The public depends on there being a delicate balance between these two forces.
Giving Unions the right to strike – freeing it from being regulated by the legislature subject to s. 1 –
would go too far in freezing the development of labour relations and curtailing that process of
evolution necessary to meet the changing circumstances of a modern society in a modern world.
Institutional Competence:
 if the right to strike is constitutionalized, its application, extent and questions of its legality
would be brought to the courts, throwing courts back in the field of labour law, losing much
of the value of specialized labour tribunals.
Labour Relations
91

constitutionalizing the right to strike would mean that any attempt by the government or
legislature to regulate a strike would require a section 1 analysis. This would mean the court
would have to reconsider the balance struck by the legislature in creating labour policy: this
is not an area in which the courts should be dealing.
Dickson/Wilson Dissent:
International human rights documents (read: ILO) should guide the interpretation of the Charter.
The Charter should be presumed to provide protection at least as great as that afforded by similar
provisions in intl. human rights documents which Canada has ratified.
Therefore, the rights to strike and collective bargaining are a part of the association rights in section
2 (d).
An Assessment of Judicial Review of Labour Law under the Charter: Of Realists, Romantics and
Pragmatists (Brian Etherington)
Notes that McIntyre left the door open as to whether the right to collective bargaining was constitutionally
protected. That is, McIntyre said in obiter that his decision on the right to strike did no preclude the
‘possibility that other aspects of collective bargaining may receive Charter protection under’ 2 (d).
The case, Professional Institute of the Public Service of Canada v. Northwest Territories [PIPS] seems to
have made it clear that collective bargaining is not protected by the charter.
4 of 7 judges concluded that NWT government was under no constitutional obligation to bargain
collectively or provide any statutory scheme for collective bargaining.
***
This was affirmed by Delisle v. Canada (cops case) and Dunmore v. Ontario (aggy workers)
Dunmore does say that 2 (d) “can protect some aspects of employee organizing activity which are inherently
collective.”
[This could be cleared up]
Labour Relations
92
Legal Prohibition of Strikes and Other Economic Sanctions: The Peace
Obligation
Strikes are usually a complete cessation of work, but can also be:
 Selective strikes
 Go-slows
 Work-to-rule campaigns
 “study sessions”
 Overtime bans
 Coordinated sick days
 Consumer boycotts
 Picketing
 Hot declarations
 Mass resignations
The employer rarely initiates a lockout, but may use it to respond to the above attempts to slow-down or
stop the production of the workplace.
Prohibition of Strikes




Pre-WWII, strikes were illegal; however, they were used to help resolve all types of workplace
related disputes: recognition of trade unions, negotiation of terms, reinstatement of discharged
employees, enforcement of CBAs, drawing of jurisdictional lines btw unions, etc.
During WWII, Canada changed their policy in the interest of continuous war production, adopting a
regulated system of CB. Strikes are banned in all circumstances except over disputes over the
negotiation of a CBA.
There were other mechanisms: certification, duty to bargain, prohibition of unfair labour
practices, grievance arbitration process for enforcing CBAs.
There are also hurdles to jump over before a strike can take place: conciliation and mediation.
Have the statutory pre-reqs been met?
Definition of “Strike”
Section 3 (1) of Canada Labour Code:
‘strike’ includes a cessation of work or a refusal to work or to continue to work by employees, in
combination, in concert or in accordance with a common understanding, and a slowdown of work or
other concerted activity on the part of employees in relation to their work that is designed to restrict
or limit output.
Therefore, this can include less than a full cessation of work.
Labour Relations
93
Actions Constituting a Strike: Common Activity or Concerted Activity
Communications, Electronic, Electrical, TEchina and Salaried Workers of Canada v.
Graham Cable TV/FM (1986), 12 Can LRBR (NS) 1 at 2-4 (CLBR)
FACTS: Unions says that er took disciplinary action against employees who were participating in a
lawful strike activity.
Er says discipline was imposed on ees who had failed or refused to perform the functions of their job
descriptions.
The union was in a legal strike position, but felt that a traditional strike would fail.
Union organized a campaign where slow downs would occur in some areas and speed ups in others.
The er issued a memo for all ees to sign if they wanted to work: those who did not were excluded
from the workplace.
ISSUE: Does this action constitute a strike under the code?
ANALYSIS:
s. 107 (1) of the Codes states:
‘strike’ includes (a) a cessation of work o a refusal to work or to continue to work by
employees, in combination or in concert or in accordance with a common understanding, and
(b) a slowdown of work or other concerted activity on the part of employees in relation to their
work that is designed to restrict or limit output.
 There is protection for employees who participate in a strike under s. 184 (3) (a) (vi).
 Thus, there is a broad interpretation of strike. This is to accommodate such actions by
unions, which allow their protest to be voiced but also allow their members to collect an
income.
 The er is not defenseless: they can lock their employees out.
 They merely cannot discipline or punish their employees for engaging in a lawful strike as
they did in this case.
CUPE v. Canada Post (1992), 16 Can >RBR (2d) 290
FACTS: The union had engaged in concerted activities to decrease production, only processing first class
mail. It was in the position of a lawful strike. The er told their employees who had participated to not to
show up for work for one day; the union issued an unfair labour practice saying the er had discriminated
against those employees b/c they had participated in a lawful strike.
ANALYSIS: There must be a distinction between er conduct that was merely defensive and that conduct that
discriminated against or disciplined ees for the exercise of their rights under the code.
The board said that this was a lockout which was defensive, therefore not an unfair labour practice –
fuckers.
British Columbia Terminal Elevators Operators’ Association on Behalf of the
Saskatchewan Wheat Pool v. Grain Workers’ Union, Local 333 (1994), 94 CLLC para. 16,060
at 14,500 (CLRB)
ISSUE: What does it mean for a work stoppage to be ‘in combination, in concert or in accordance with a
common understanding?
FACTS: Er says there is a concerted effort on behalf of the ees to refuse voluntary overtime following the
layoff of 10 ees in the BU.
ANALYSIS: The CBA explicitly states that ees could refuse OT work.
Labour Relations




94
No direct evidence to show the union had coordinated the campaign, but circumstantial evidence
will suffice b/c the er had never had a problem finding people work OT in the past.
The union had said they had opposed OT when layoffs were occurring.
Since there was no evidence that the union was not orchestrating this act, then it is concluded that
the ees were on strike, contrary to section 89.
Union/its members cannot use a term in the CBA to give ees the right to collectively refuse
work contrary to section 89. However, if an individual can refuse work and if disciplined for
doing what s/he rightfully could do under the CBA, they would win in arbitration.
CBC v. Canadian Media Guild, [1999] CIRB No. 11
FACTS: Union sent letters to members saying they had a legal obligation to report for work during a
legal strike by another BU and the union could not direct them to refuse to cross another BU’s picket
b/c that would mean they were in an unlawful strike.
Memo also said they may soon be in a legal strike position and that the union would support any
member’s individual decision not to cross the line.
Board said this was a concerted activity and amounted to an unlawful strike.
RATIO: resort by union to mixed messages is not likely to succeed in keeping a slowdown or
stoppage from being held to be concerted activity.
Labour Relations
95
The Strike Prohibition and Sympathetic Action
Local 273, Internation Longshoremen’s Assocation et al. v. Maritime Employers’
Association et al., [1979] 1 SCR 120 at 123, 125-26, 137-39
 Three unions are appealing an injunction against them on the grounds that refusal by members to
cross a lawful picket is not a strike.
FACTS: Legal strike was taking place at entrance to port facility. Members of other unions (under
different ers) refused to cross the line. The union argues that parliament must not have intended ‘strike’
to include crossing another BU’s legal picket line due to a universally understood doctrine of ‘union
solidarity’.
ANALYSIS: Parliament did not provide a motive in the first part of the strike provision. It does not
care why members decide to go on strike, just that they did. Therefore, this was an illegal strike
and the injunction stands.
Progistix-Solutions v. CEP, [1999] OLRB Rep. March/April 309.
Union telling its members to pause their car for five minutes at an entrance picketed by members of another
BU was held to be an unlawful strike activity.
Nelson Crushed Stone and United Cement, Lime & Gypsum Workers’ International Union,
Local Union 494 v. Martin, [1978] 1 Can. LRBR 115 at 119-20, 125, 128-29 (OLRB)
FACTS: The CBA for the non-striking union has a clause stating ees are not in violation of the
agreement if they refuse to cross a legal picket line. Members of this union refuse to cross a picket
line of another union that is legally striking against a common er.
ANALYSIS: Provisions which attempt to legalize strike activity during a K term embody attempts by
the parties to K-out of the LRA, which make such clauses invalid.
This clause is not useful when determining whether the union engaged in unlawful strike activity –
which according to the LRB it did.
Such a clause is likely only useful as a defense for an individual employee who may be discharged
or disciplined for refusing, on an individual basis, to cross a picket line.
Labour Relations
96
Is a Political Protest a Strike?
These cases came out of the Canadian Labour Congress’ Nation Day of Protest in regards to the Trudeau
government anti-inflation policies (wage and price controls).
Where there are purposive or motive requirements in the strike definitions, such as in BC prior to
1984, then political protests may not be deemed to be a strike (BC Hydro and Power Authority and
Brotherhood of Electrical Workers, Local 258 and Local 213, [1976] 2 Can. LRBR 410 at 413).
However, in NS a political protest which involved a work stoppage was deemed to be a strike (Re
Robb Engineering and United Steelworkers of America, Local 4122 (1978), 86 DLR (3d) 307 (NSCA).
In Ontario, where the definition of strike has no motive/purposive requirement, the national day of
protest was held to be a strike (Domglas Ltd. (1976), 76 CLLC para. 16,050 (OLRB). This was
reaffirmed after protests called by the Ontario Federation of Labour to Harris’ labour law reforms.
In GM of Canada Ltd. [1996] OLRB Rep. May/June 409, CAW argued that this was in violation of
ee’s charter rights to freedom of association and expression. The Board agreed, but said it was
justified under section 1.
Legal Forums Regulating Industrial Conflict
Three forums in the regulatory scheme:
1. Courts
2. Labour Boards
3. Arbitrators
Courts: Criminal law and torts have been used to regulate strikes/picketing; award damages to compensate
victims; award injunctions. Not designed to respond to specific realities of labour relations. Criminal law
rarely used to remedy violation of a CB legislation.
Labour Boards: enforcement of the LRA. Power to make cease and desist orders and award compensation
for losses. Usually require mediation/negotiation prior to adjudication.
Arbitration: CBAs have a grievance procedure; enforced by arbitrators. Can award damages for violation
of no-strike clause; limit ers from disciplining ees without just cause.
Strikes/Lockout and picketing can give rise to proceedings in several forums
Remember, constitutionality of the legal rules in question may be made in any of the proceedings.
Labour Relations
97
The Courts
Criminal Jurisdiction
 Courts enforce the CCC.
 Provisions which come up are assault, mischief, trespass.
 Main one is ‘watching and besetting’ (s. 423 of CCC): watching/besetting someone in order to stop
them from doing anything they have a legal right to do.
 This may be used if picketing goes beyond merely communicating information.
 These types of criminal prosecution are difficult and not too attractive to the er. Consent is needed
from the LRB (or Minister) and fines go to the crown rather than the ‘victim’ employer.
Civil Jurisdiction
1. This is more important than the criminal jurisdiction.
2. Can be used to get injunctions ordering people back to work, restricting picketing, limiting the use of
other economic sanctions.
3. Damages available in certain circumstances.
Labour Relations
98
Tort Illegalities
1. Nominate Torts: assault, trespass, defamation are used in some cases.
2. Economic Torts: More important. Invented by English courts to curb trade unionism. Provide
redress against losses resulting from hostile use of the collective strength of economic adversaries
(collective ee strength through strikes/picketing).
The Tort of Consiracy to Injure by Lawful Means
1. Combination of two or more persons;
2. Intention to cause an economic injury to P and the causing of such injury.
3. Predominant purpose/motive that courts do not recognize as being a legitimate interest
Courts have found traditional CB activities (such as closed shop) as legitimate interest (Crofter Hand
Woven Harris Twen Co. v. Weitch (1942)).
The Rights of Labour Act seems to eliminate the use of this tort:
Acts done by two or more members
3. (1) Any act done by two or more members of a trade union, if done in contemplation or furtherance
of a trade dispute, is not actionable unless the act would be actionable if done without any agreement
or combination.
However, secondary picketing has been seen to go beyond the scope of a ‘trade dispute’.
Tort of Conspiracy to Injure by Use of Unlawful Means
1. Combination of two or more persons;
2. Intention to cause economic injury to the P;
3. Use of unlawful means to cause the injury.
Any illegality (including breach of K) will suffice (Rookes v. Barnard [1964])
Tort of Directly Inducing Breach of K
1. Intention by the D to cause economic injury to the P;
2. Knowledge by the D that there is a K between the P and a third party;
3. Use of lawful means by the D to persuade the third party to breach the K;
4. A breach of K;
5. Economic injury to the P as a reasonable consequence of the breach.
Knowledge and persuasion requirements have whittled away.
Knowledge exists if D ‘ought reasonable to believe that a K relationship exists even if s/he may not know its
terms or if D acts ‘recklessly’ without caring whether a K exists.
Persuasion can mean merely providing information to the third party asking them to ct in a certain way (e.g.
honour a picket line) and the third party does it.
“justification” can be used as a defense, but union objectives has traditionally not been considered as
such.
Labour Relations
99
Tort of Indirectly Procuring Breach of K by Unlawful Means
1. Intention by D to cause economic injury to P;
2. Knowledge by D that there is a K between the P and a third party;
3. Threat by D to use unlawful means against the third party unless the latter breaches his/her K with the P,
or the actual use of unlawful means for that purpose by the D.
4. Breach of the K between the P and the third party;
5. Economic injury to the P as a necessary consequence of the breach.
Key is unlawful means: can be any technically illegal conduct (crime, another tort, breach of K). No
defense of justification.
Direct Interference with K Relations Falling Short of Breach
‘discovered’ by Lord Denning in Torquay Hotel Co. v. Cousins [1969]
1. Intention by the D to injure the P economically;
2. action by the D that has the effect of hindering or preventing performance of a K between the P and a
third party;
3. the D’s action was a direct cause of that result.
Tort of Intimidation
1. Intention by the D to injure the P economically;
2. Threat by the D to use unlawful means against a third party unless the later takes action that will injure
the P economically;
3. Action by the third party against th P which is lawful in itself but which causes the P economic injury.
Key is unlawful means: can be crime, tort, or breach of K.
Tort of Intentional Injury by Use of Unlawful Means
1. Intention by the D to injure the P economically;
2. Use by the D of unlawful means (Rookes v. Barnard, crime, tort, breach of K)
No combination is needed.
These can be used to prevent fairly typical picketing tactics.
However, legislation has eliminated the use of many of these: e.g. Rights of Labour Act.
When industrial action is a breach of the LRA, the economic torts are less important.
Courts have taken position that breach of an LRA alone is enough for a cause of action either because
it is a tort in itself or because noncompliance with the statute constitutes the element of illegality
necessary to make out one of the economic torts.
Usually, if a statute prohibits certain conduct and provides its own form of recourse for those affected
by such conduct, they must pursue remedies provided by the statute and cannot sue civilly (e.g.
Seneca v. Bhadauria [1981]). However, in industrial conflict courts have departed from this approach
and have been willing to base civil actions on breach of the LRA alone, without even trying to make
the breach into a component of an identifiable tort. (e.g. International Brotherhood of Electrical
Workers v. Winnipeg Builders Exchange [1967], Maritime Employers Association).
Labour Relations
100
Legal Capacity of Trade Unions to Sue and Be Sued
At CL, unions traditionally considered a voluntary unincorporated association; therefore, not a legal entity.
CL has held that these organizations cannot sue or be sued in their own names unless the statute says they
can, in order to prevent holding the association legally liable for the actions of individual members over
whom they exert little control.
However, LR statutes have been seen to override this CL position.
International Brotherhood of Teamsters v. Therien, [1960] SCR 265, at 268-69, 271-78
FACTS: Therien was independent trucker who K-ed with City Construction.
CBA between City and Teamsters said City could only hire union members.
Therien said he was an er, not an ee; therefore, would not join the union.
Union said they would picket if Therien did not join; as a result, City canceled its K with Therien.
Therien sued the union for damages.
ANALYSIS:
 Union says they are not a legal entity and cannot be sued for liability in tort.
 He looks at legislation that appears to view unions as an entity which can be sued (British
Columbia Trade Union Act of 1902; LRA).
 LRAs give unions a bunch of bargaining rights, powers and immunities; they require the
union to be certified, etc.
 This suggests they are seen by the legislature “must have taken to have intended that
the creature of the statute shall have the same duties and that its funds shall be subject
to the same liabilities as the general law would impose on a private individual doing the
same thing.”
DECISION:
 Therefore, they can be sued.
There is also a cause of action in the tort of intentionally causing economic injury by unlawful means.
Legislatures have moved to clear this situation up. Alberta makes it clear that unions can be sued or sue for
the purposes of their LRA.
Ontario’s Rights of Labour Act says:
Section 3:
Trade union, party to action
(2) A trade union shall not be made a party to any action in any court unless it may be so made a
party irrespective of this Act or of the Labour Relations Act.
Collective bargaining agreement subject to action
(3) A collective bargaining agreement shall not be the subject of any action in any court unless it may
be the subject of such action irrespective of this Act or of the Labour Relations Act.
*NB*
These sections make Therien inapplicable in Canada.
May be possible to bring a representative action against named union officers on the basis that they
represent the membership, but courts sometimes find that it’s not proper or convenient to allow a P to obtain
Labour Relations
101
a personal judgment against every member of an unincorporated body for the tortuous acts of one/some of
its members.
These are usually limited to situations where the union has a trust fund to deal with such judgments;
therefore, very few unions have such trust funds.
Rights of Labour Act does not preclude a suit in Ontario by a union operating within federal jurisdiction
(Profession Institute of the Public Service of Canada v. Canada (AG) (2002), 222 DLR 4th 438 (Ont. CA).
Judges have noted their dislike of section 3 (2) of the Rights of Labour Act in Ontario.
SCC has held that a union has sufficient legal status to be prosecuted for criminal contempt of court (United
Nurses of Alberta v. Alberta (AG) (1992), 89 DLR 4th 609).
Labour Relations
102
Civil Remedies: Damages and Injunctions
Damages
Damages have been awarded in labour disputes (United Steelworkers v. Gaspe Copper Mines Ltd. (1970)
for admittingly criminal and tortuous conduct committed during an illegal strike.
Deliberate commission of a tort may give rise to compensatory and punitive damages.
Nevertheless, damage award are rare and only really used for leverage in bargaining a settlement.
Injunctions
These are significant b/c they can bring an immediate end to the industrial action in question.
Generally, ers are going for an interlocutory injunction: meant to preserve the status quo where the applicant
was in danger of suffering irreparable harm that could not be adequately compensated by money damages
awarded after the event. This would usually lead to the end of the dispute in question b/c the full trial takes
too long.
RJR-MacDonald Inc. v. Canada (AG)
RATIO: Test for granting an interlocutory injunction
1. There must be a serious question to be tried.
2. Determine if the applicant would suffer irreparable harm if the application were refused.
3. Determine which of the parties would suffer greater harm from the granting or refusal of the
remedy pending a decision on the merits.
Concerns with the granting of interlocutory injunctions in Labour Disputes
1. Undue haste proceedings: not usually notice, done on mere allegation there is no time to give D
notice, and when notice, only 2 days.
2. Lax standard of proof: Affidavit evidence, without reply; few x-exams in practice; vague affidavits
3. Interlocutory order not normally appealable without consent of court.
4. Broad Scope of labour injunctions: very broad statements used to name the Ds.
Therefore, legislatures have reformed the injunctions process:
Ontario, Courts of Justice Act, s. 102.
1. No injunctions can be given on ex parte basis.
2. Where given on inter partes basis:
a. Affidavit evidence limited to facts ‘within the knowledge of the deponent’, who may be xexamed by the other side.
b. At least two-days of notice of the motion (few exceptions in emergency type situations).
c. Max duration of injunction is four days
3. Must try to get the cops to figure stuff out first.
These protections apply to labour disputes, defined as “a dispute of difference concerning terms… of
employment.. regardless of whether the disputants stand in proximate relations of employer and ee.”
Therefore, it may cover secondary actions.
Disobedience of an injunction is a CL offense.
Labour Relations
103
There is some division on the SCC whether to use a criminal contempt order to enforce an order prohibiting
an illegal strike.
United Nurses of Alberta v. Alberta (AG) [1992]
McLachlin J: Civil contempt converts to criminal contempt b/c it is a public act of defiance of the
court. If they mean to bring the court into disrepute, then it converts to criminal contempt.
Cory J. (dissent): Converting civil contempt to criminal contempt should only be used in
circumstances of violence or threats of serious violence.
British Columbia has almost completely removed the courts power to order injunctions, leaving it to the
labour board unless the matter is really serious.
St. Anne Nackawic Pulp & Paper Co. Ltd. v. Canadian Paper Workers Union, Local 219
[1986] 1 SCR 704 at 708-14, 717-27, 731
FACTS: Union represents two BU’s (mill workers and office workers) at the same er. Office
workers went out on legal strike and picketed the mill. Mill workers could not legally strike b/c they
were under a CBA, but stayed out (struck) in sympathy. Company got an injunction, mill workers
did not go back to work until a contempt finding was made against the union and three of its officers.
Two weeks later, the mill workers went on illegal strike again and despite another contempt order,
they did not go back until the office worker strike was over.
ISSUE: Does a court have the jurisdiction to enforce a no-strike clause in a CBA and can it order
damages for that purpose?
(Remember: CBAs are generally thought of as the jurisdiction of arbitrators. This is NOT A
BREACH OF THE STATUTE, which is enforced by the board.)
ANALYSIS:
 Arbitration is the forum preferred by the legislature to resolving disputes coming out of
a CBA.
 This is in conflict with the long-standing ability of the courts to issue in junctions restraining
illegal strike activity during a CBA.
 This would deprive employers who have signed a CBA in good faith from using the courts,
where ers who have refused to sign an agreement at all could access the courts to receive an
injunction.
 The legislature has not included a privative clause stating that courts to deal with breaches of
a CBA, which are clearly enforceable in the proper forum.
 This shows legislative intent gives some role to the traditional courts.
 The legislation says that parties have to find a settlement mechanism and that can be
the courts if they so choose.
 Even when parties have chosen arbitration this is ‘insufficient to oust the inherent
jurisdiction of the superior courts.’
CLASS NOTE:
 Estey is saying he doesn’t know where he gets jurisdiction, but he gets it.
 The point of bring in labour relations legislation was to stop strikes, while recognizing CBAs.
This suggests that a union cannot prevent a court from issuing an injunction in order to allow
them to continue a strike, which the legislation is aimed at preventing.
Labour Relations




104
This power is not creating a power to enforce a CBA; they enforce the general law embodied
in statute, which prohibition of strikes during currency of a CBA and binding and
enforceable arbitration which would resolve the dispute.
Conclusion: Claims for damages must be advanced in the contractual forum of an
arbitration board.
Courts do have the power to issue an injunction when parties have violated a no-strike clause
in a CBA.
In some later cases, courts have refused to grant injunctions when the party has not first gone
to the labour board (AG of Ont. V. OTF [1997] 36 OR 3D 367 (Ont. SC))
Labour Relations
105
The Role of Labour Relations Boards
Principle forum for settling strikes/lockouts set out in LR legislation.
They have statutory duty to determine what is a strike/lockout and if there has been one.
They used to have limited remedial power, determining if a strike was illegal or not.
Now they have a much more broad, directive remedial power.
e.g. Section 100 of the Ontario LRA:
Declaration and direction by Board re unlawful strike
S. 100. Where, on the complaint of a trade union, council of trade unions, employer or employers’
organization, the Board is satisfied that a trade union or council of trade unions called or authorized
or threatened to call or authorize an unlawful strike or that an officer, official or agent of a trade
union or council of trade unions counselled or procured or supported or encouraged an unlawful
strike or threatened an unlawful strike or that employees engaged in or threatened to engage in an
unlawful strike or any person has done or is threatening to do an act that 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, the Board may so declare and it may direct what action, if any, a person,
employee, employer, employers’ organization, trade union or council of trade unions and their
officers, officials or agents shall do or refrain from doing with respect to the unlawful strike or the
threat of an unlawful strike.
How does the board approach the regulation of illegal industrial action?
National Harbours Board v. Syndicat national des emplyes due Port de Montreal, [1979] 3
Can, LRBR 502 at 503-18
FACTS: Union called two one-day work stoppages and an overtime ban before they were in a legal
strike position (during conciliation), disrupted shipment of grain through the port of Montreal. Er
said union’s acts were untimely and unlawful. Union said they were fed up with the slowness of the
conciliation and had to use these limited measure to channel discontent and show they had the ees on
side. They also said the er had violated the overtime provisions in the CBA.
ANALYSIS:
 Board’s jurisdiction is created by statute.
 Board must determine the source of the LR problems (strike) and figure out a remedy.
 The board can order cease and desist orders.
 They use the remedial power with the purpose of creating a factual situation most likely to
promote healthy and orderly labour relations.
 In this case, the union took action, knew what they were doing.
 It was their fault; board order workers to ‘perform the duties of their employment
and… refrain from any concerted illegal activity’ and the union refrain from
authorizing/declaring such activity and distribute the order to its members.
 Here, we see more than mere cease and desist. There are clear directive orders.
Labour Relations
106
The Arbitrator’s Role in Industrial Conflict
Determine damages and justness of disciplinary measures imposed on ees for conduct in connection with
both legal and illegal strikes.
Awards of Damages by Arbitrators
Violation of a no-strike clause is a violation of the CBA.
This is where the er can receive damages for an illegal strike.
Re Oil, Chemical & Atomic Workers & Polymer Corporation (1958), 10 LAC 31 at 33-35, 3739
FACTS: Strike occurred during a CBA; company brought grievance alleging violation of no-strike
clause and claiming damages for losses suffered.
ANALYSIS (Laskin, Chair):
 Board will not accept automatic liability for a violation of the no-strike clause.
 However, liability will not only arise if there is an official strike.
 Acts of an individual member are not the acts of a union as a whole, they are not the employees
of the union, just members; therefore, the acts of a union member cannot make the union
vicariously liable.
 The no strike clause means that the union undertakes that there will be no stoppage by the
members of the BU and that it will not sanction/direct/condone/encourage stoppages by persons
in the BU.
 The real basis for an er’s grievance must be the failure of the union to take prompt/necessary
steps to bring the strike to an end.
Union Liability is established if:
1. Strike called/instigated by a steward.
2. Stewards fail to take steps to put a spontaneous employee action to an end.
3. Higher level officers fail to take action to terminate the strike.
4. If the stewards join the action.
Employer Disciplinary Action against Strikers
Involvement by an ee in an illegal strike does not rupture the employment relationship; it does expose
the employee to discipline for cause and therefore, may go to arbitration.
Involvement in a legal strike is different; there an ee cannot be disciplined for participating, but may
be disciplined for conduct during the strike.
Rogers Cable TV (BC) Ltd., Vancouver Division et al v. International Bortherhood of
Electrical Workers, Local 213 (1987), 16 cda LRBR (NS) 71 at 77, 84-85, 90-93 (CLRB)
FACTS: Company had tried to maintain operation during a bitter legal strike. Union had blocked
access to company premise and using flying picket squads to follow company vehicles and harass ee
doing bargaining unit work. Company hired security guards, cops were brought in. Company got
injunctions regulating conduct; union business agent and 22 members found guilty of contempt.
They then imposed disciplinary suspensions on 8 ees for alleged misconduct on the line.
ANALYSIS:
Labour Relations


107
Union says er cannot discipline for any act committed during a lawful strike.
They are saying there is no employment contract in effect, which is where the er gets the
lawful authority to discipline the ee. The only recourse for the er is through the civil of
criminal courts.
 Codes see strikes/lockouts as temporary suspensions of the employment relationship.
 There is nothing in the Code to suggest that the er cannot use its restored disciplinary
power to deal with ee conduct during the strike.
 It’s like when ees go on vacation/leave: here the arbitrators generally limit the exercise
of the disciplinary powers to where the conduct of the ee undermines the viability of the
employment relationship.
 Remember, the new CBA is made retroactive the date of the beginning of the strike,
therefore, the union’s argument has no base.
 Facts show no anti-union animus.
 Discipline was not done b/c they were participating in a lawful strike, it was
particularly bad shit.
DECISION: Therefore, the complaint is dismissed and the ees can be disciplined.
Labour Relations
108
CHAPTER 8 - Regulation of PICKETING




Picketing is important for morale, it keeps the striking workers together in a physical location. It
ensures that workers share the experience. Picketing is also important b/c of its signal effect. It sends a
signal to all people who approach the picket line that the workers would prefer that you do not assist the
employer. Also sends a signal to replacement workers, non-striking workers. Picketing can also be
highly economically and socially destructive
The law has to balance the interests of the employer in maintaining its business, and the interests of the
employee.
The current law on picketing: picketing is lawful if it is not being used to support an unlawful strike,
or to cause an unlawful strike, and if it is conducted peacefully, without unlawful conduct,
including torts or crimes.
Principle jurisdiction regarding picketing belongs with courts, but the labour board does have a role
Role of labour board with regard to picketing:
 If the picketing accompanies an unlawful strike: then the picketing is illegal and the workers will
be ordered back to work under section 100 (section 79 no strike or picketing during collective
agreement, section 81: no union shall call or threaten to call an unlawful strike, and no official shall
encourage an unlawful strike)

Section 83:
o 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.
o Trying to get non-striking workers to participate in your legal strike is essentially trying to
encourage the non-striking workers to go on illegal strike. So trying to get someone who isn’t on
strike to not cross the picket line. Whenever there is a strike section 83 is always engaged.

Section 83(2)
o 83(2): Subsection (1) does not apply to any act done in connection with a lawful strike or
lawful lock-out.
o So this provision saves you as long as the picketing is the result of a legal strike.
So if the picketing is in association with a lawful strike then there is NOTHING that the board can do.
The board cannot order workers back to work who are picketing in relation to a lawful strike.


SO the employer has to go to the COURT in the situation of a LAWFUL strike. And then turn to the
economic torts.
Toronto Transit Commission (1996) O.L.R.B.
FACTS:
 In protests against Harris gov. a number of unions encouraged other workers to not go to work.
They went to the hubs of TTC activity and picketed. SO TTC went to the labour board and said it
was a violation of section 83(1). TTC workers were not in a position to strike and the people who
showed up to try to get them to not go to work were not TTC employees.
DECISION:
Labour Relations


109
Board orders the picketers to clear the way for TTC workers to go to work.
So notice that the board can make an order against non workers
ALL OTHER ISSUES relating to behavior on the picket line are dealt with by the courts.
 If you are dealing with a lawful strike, and there is an issue about picketing then you are looking
at the courts, b/c the board cannot deal with it.
 So the Board will determine if the strike is legal, if it isn’t they order picketers back to work. If it is
legal then the employer goes to the courts and that is the end of the board’s jurisdiction.
Primary Picketing
Typically picketing at the struck employer’s place of business
Harrison v. Carswell (1996) SCC
FACTS: Carswell is picketing the store where she works. The store is located in a mall. The owner
of the mall sues her for trespassing in the mall.
ISSUE: property rights vs. the right to picket
HELD: Appeal allowed conviction restored
RATIO:
 The Petty Tresspass Act (of Manitoba) provides that any person who trespasses upon land, the
property of another, upon or through which he has been requested by the owner not to enter is
guilty of an offence. This applies to picketing. If there is to any change in the law it is to be done
by the legislature and not the courts.
REASONS:
 Dickson J. says that property rights trump the right to picket.
 There is no difference b/w this case and Peter v. the Queen
Dissent: Laskin, in dissent said that you own property and you invite the public onto it, you are
divesting yourself of the right to exclude a picketer.
Legislative response to Harrison v. Carswell: Manitoba legislature amended the Petty Trespass Act
to overrule Harrison v. Carswell.
Courts of Justice Act – s. 102(3)
In a proceeding for an injunction to restrain workers from picketing in a labour dispute – reasonable efforts
to obtain police assistance – you can’t get an injunction unless you first bring the police in. The police
must be unsuccessful in preventing risk of injury or damage to property
Injunction in labour dispute
102.(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.
Labour Relations
110
Industrial Hardwood Products v. Int. Wood Allied Workers (2001) O.C.A.
FACTS: Legal Strike. Er decides to use replacement workers and buses them in/out. Picketers
blocked buses until the police came, then let the buses through. Er asked police to be there everyday
but police said no. Continued for three months. Employer went to court to try and get an injunction
on the basis of nuisance. Lower court ordered that there only be 4 picketers at a time. Union argued
no reason for injunction b/c police able to make picketers move.
ISSUE: When has the pre-condition of 102(3) been met where there is no injury or property damage?
HELD: despite companies reasonable efforts, police assistance has failed to gain an acceptable
degree of control, 5 minute limitation upheld, but limit to 4 picketers unreasonable and therefore
struck from order.
RATIO:
 This section places the onus on the applicant to satisfy the court that the applicant has made
reasonable efforts to obtain police assistance ant that those efforts have not resulted in an
acceptable degree of control in light of the factors set out in the section: risk of property damage,
injury, obstruction of lawful access to the premises.
 In a case where no injury or damage involved just obstruction of lawful entry or exit, the
relevant considerations will include: the degree of the obstruction, its duration on each
occasion and how many days it has gone on. The question is whether in all the
circumstances reasonable efforts to obtain police assistance have failed to result in an
acceptable degree of control.
 Police control isn’t assessed just based on the response when they are actually at the scene, all of
the circumstances are looked at, such as in this case whether police have acceptable resources to
enable them to maintain an acceptable degree of control.
REASONS:
 Strikes and picket lines are best controlled by flexible policing, only where this fails should the
court be resorted to with its blunt instrument of injunction.
 The first failure or the police to respond instantaneously to a request for help does not necessitate
the conclusion that police assistance has failed and that therefore the court can be resorted to.
Absent questions of property damage or personal injury ... society can accommodate some
inconvenience as a corollary of the right to picket in a labour dispute b/4 the court will
conclude that police assistance has failed.
Cancoil Thermal Corp v. Abbot (2004) Ont. Sup. C.J.
FACTS: Workers on lawful strike. Application by Cancoil for an interlocutory injunction to restrain
picketing activities on its premises. Picketers were in front of their workplace and were approaching
cars and stopping them for 15 minutes b/4 allowing them to enter the premises. Ee stagger the start
times of the replacement workers in order to get around this. The Kingston police had a policy of
not getting involved unless there is a concern about individual safety or a breach of the criminal law.
HELD: The court refuses to grant any injunction and refuses to provide any relief for the employer.
RATIO:
 An injunction will be granted only when the picketing is causing undue harm (under RJR
Test) and if s.102(3) CJA is satisfied
 It is inherent in the nature and purpose of picketing as an activity that some delay, inconvenience
and perhaps frustration will be experienced by the employer. Its degree and duration and its
context are fundamentally important
Labour Relations

111
RJR MacDonald – in a labour dispute, the common law test for the granting of an interlocutory
injunction
o first part of the test is “is there a prima facie case” (if we take the evidence as pleaded,
is there a case that a breach of the law has occurred?)
o Secondly, whether there exists irreparable harm (usually in the sense that monetary
damages would not constitute adequate compensation); and
o Thirdly, the court looks at the balance of harm: whether the balance of convenience
favours the granting of injunctive relief.
REASONS:
 The court starts off by saying that there doesn’t seem to be a prima facie case. The court is not
satisfied that the employer is suffering irreparable harm, and that the balance of harm does not
favour the union. The court is influenced by two things – 1) picketing was peaceful all the way
along 2) court is pissed off with the employer for wasting courts time instead of sitting down to
bargain with the union.
 “I do not find that the level of obstructive conduct either in its nature, duration or effect, exists so
as to establish the required prima facie case for the granting of injunctive relief, or to establish
compliance with section 102 of the Courts of Justice Act.”
 Also the court didn’t think there was irreparable harm (no criminal or tortious activity and no
damages that couldn’t be compensated through money)
 “in the circumstances of this case I will not impose a picket line protocol in circumstances where
the employer has declined to negotiate that issue with the union for no reason that was
satisfactorily explained to the court.”
Labour Relations
112
Secondary Picketing
Historically the courts were very suspicious of secondary picketing. They wanted to shield third parties as
much as possible. Hersees (1963) was the seminal case for a long time
Hersees of Woodstock Ltd. v. Goldstein (1963) Ont. C.A.
FACTS: The employees from Deacon Bros. (made underwear) were on strike. Hersees was a
department store that sold Deacon Bros. underwear. The union went to Hersees and said “please
stop selling DB underwear and please cancel your orders” Hersees told them where to go, and so
some workers started handing out leaflets in the store parking lot.
ISSUE: Secondary picketing allowed?
HELD: The CA upheld the injunction despite the fact that it was peaceful information picketing.
RATIO:
o Secondary Picketing is illegal per se.
o Any right of secondary picketing must give way to the company’s right to trade. If there is
a right to picket it only benefits a select class, which the right to trade is far more
fundamental and of greater importance. The interests of the community at-large must be
held to transcend the rights of a particular group of individuals.
REASONS:
o Aylesworth said that it’s inducing breach of contract despite the fact that there’s no actual
contract. “Company had a contract with Deacon Bros. Union knew of the contract and attempted
to induce Deacon Bros to breach the contract by picketing at his business, causing or likely to
cause damage to the business and not being “for the purpose only of obtaining or communicating
information” the picketing is unlawful”.
o He says that the right of Hersee’s to trade must always outweigh the freedom of expression
of picketers. There was no law to support this, so he says that it was an inherent right of
the court to declare secondary picketing to be illegal, per se (because I say so).
o The CA created what was in essence a tort of secondary picketing.
NOTE:
o CJA applied to lawful picketing – because the court said that all secondary picketing is
illegal, s. 102(3) had been ruled not to apply to secondary picketing, which meant that a
Hersee’s type of employer would not need to first call in the police to get an injunction
from the courts. The RJR MacDonald test would always be satisfied because secondary
picketing was illegal. Until Pepsi, it was just a matter of procedure to get an injunction for
secondary picketing.
o Over time the courts watered it down a bit by formulating the “modified Hersee’s test” The
courts would treat the secondary employer as if it were the struck employer if it was an ally of
the struck employer. An ally is a company that is a working with the employer to withstand
the strike. In those circumstances, the secondary employer will be treated like the struck
employer.
Labour Relations
113
Consolidated Bathurst v. Canadian Paperworkers Union (1982)
FACTS: There were five companies who made cardboard in Ontario. The union was on strike
against four. Consolidated Bathurst workers were not on strike. The work for the 4 striking
companies was all done by Consolidated Bathurst. There was evidence of secret meetings between
all the execs of the 5 companies. The union also alleged that Consolidated Bathurst had an interest
in the bargaining of the other four because the company would agree to the same terms for its
workers (industry standard). Secondary picketing: Union workers set up picket lines outside
Consolidated Bathurst and so CB went to the Labour Board and claimed that the Union was
contravening s. 83 (inducing others to engage in an unlawful strike).
ISSUE: is CB an ally or a neutral third party? What is the legal status of the picketing at CB?
HELD: CB is a neutral third party, not an ally, therefore secondary picketing is illegal.
RATIO:
o Picketing directed at a neutral third party is not “in connection with a lawful strike” under
the Act.
o Each case must be analyzed in light of the established facts, the industrial relations realities
and competing policy considerations.
o Labour Board says that s. 83(2) applies to secondary picketing as well as primary
picketing, but only if the targeted secondary employer is an ally.
o An ally is someone who is deliberately assisting the employer to win the strike. The
Board here says that Consolidated Bathurst was not acting as an ally of the struck
employers.
REASONS: the struck employers were not directing customers to CB. CB was just performing work
that naturally developed out of the strike. Although the meetings b/w execs are somewhat troubling a
review of the minutes of these meetings proves that they were just informational meetings. Of
course CB would be concerned with the outcome of the strike b/c they are involved in the same
industry, this doesn’t mean there are an Ally for the purposes of section 82(3).
Pepsi-Cola Canada Beverages (West) Ltd. V. Retail, Wholesale and Department Store
Union, Local 558 (2002) 208 D.L.R. (4th) 385 (SCC)
 SCC said that picketing is speech and is entitled to same respect as other forms of communication
 SCC announces the wrongful action test – “all picketing is lawful absent criminal or tortuous
conduct”
 Pepsi trumps the Herssee decision that all secondary picketing is illegal per se
FACTS:
dealt mainly with the peaceful picketing of a number of retail stores which sold Pepsi products but
had no corporate connection to the Pepsi-Cola company.
ISSUE:
 When, secondary picketing — typically defined as picketing in support of a union which
occurs at a location other than the premises of that union’s employer — may be legally
conducted.
 Two preliminary issues arise: (1) whether the courts have the power to make the sort of
change advocated by the Union; (2) if so, how the Charter may affect the development of the
common law.
 On the first issue, we conclude that the change in the common law here at issue lies within
the proper power of the courts.
Labour Relations
114

The second preliminary issue is how the Charter may affect the development of the common
law. Although s. 2(b) of the Charter is not directly implicated in the present appeal, the right
to free expression that it enshrines is a fundamental Canadian value…Finally, the Court
determined that the party alleging an inconsistency between the common law and the Charter
bears the onus of proving “that the common law fails to comply with Charter values and that,
when these values are balanced, the common law should be modified”…It is upon this basis
that we proceed to balance the values at stake in the present appeal.
RATIO:
Picketing, however defined, always involves expressive action. As such, it engages one of the
highest constitutional values: freedom of expression, enshrined in s. 2(b) of the Charter.
Free expression in the labour context benefits not only individual workers and unions, but also
society as a whole…This said, freedom of expression is not absolute. “When the harm of
expression outweighs its benefit, the expression may legitimately be curtailed. Thus, s. 2(b) of
the Charter is subject to justificative limits under s. 1.
On the other side of the balance lie the interests of the employer and third parties in protection
from excessive economic and other harm as a result of picketing and other labour action.
While acknowledging that all picketing (even where accompanied by tortuous conduct) involves
some element of expression, Mclntyre J. recognized the legitimacy of some curtailment of secondary
picketing in order to prevent the economic harm of labour disputes from spreading too broadly into
the community. (Dolphin Delivery) Third parties are to be protected from undue suffering, not
insulated entirely from the repercussions of labour conflict.
This brings us to the question that lies at the heart of this appeal. How do we judge when the
detriment suffered by a third party to a labour dispute is “undue,” warranting the intervention of the
common law?
Three possible options emerge from the parties’ submissions:
1. An absolute bar on secondary picketing (the “illegal per se” doctrine);
2. A bar on secondary picketing except for “allied” enterprises (the modified “Hersees rule);
and
3. Permitting secondary picketing unless the picketing amounts to a tort or other wrongful
conduct.
We conclude that the third approach — the wrongful action model that makes illegal
secondary picketing which amounts to tortuous or criminal conduct — best achieves this goal.
The following considerations, some of which involve overlapping themes, lead us to this
conclusion.
The preferred methodology is to begin with the proposition that secondary picketing is prima
facia legal, and then impose such limitations as may be justified in the interests of protecting
third parties
Labour Relations
115
The wrongful action approach treats labour and non-labour expression in a consistent
manner. The Hersees rule, by contrast, effectively creates an independent tort of secondary
picketing that applies only in the labour context. This distinction is difficult to justify.
Despite some anomalies, it is safe to assert that a wrongful action-based approach will catch
most problematic picketing — i.e. picketing whose value is clearly outweighed by the harm
done to the neutral third party.
Decision: We would therefore dismiss the appeal.
Chris Rootham analyzes the decision and says…
A Complete statutory ban on secondary picketing was in breach of the Charter protection of freedom of
expression because it went farther than was necessary to meet “the pressing and substantial objective of
preventing economic damage to neutrals in a labour dispute.”
In British Columbia Government Employees’ Union v. British Columbia (A.C.) [1988], 2 S.C.R. 214 at 24344, Chief Justice McEachern of the British Columbia Supreme Court granted an injunction, ex parte and on
his own motion, prohibiting legally striking government employees from picketing courthouses.
McEachern C.J.S.C. held that such picketing constituted a criminal contempt of court.
The Supreme Court of Canada nevertheless upheld the injunction on the ground that free access to
the courts was essential to the vindication of fundamental rights, especially Charter rights.
“We have no doubt that the right to access to the courts is under the rule of law one of the foundational
pillars protecting the rights and freedoms of our citizens, it is the preservation of that right with which we
are concerned in this case.”
In Ontario Public Service Employees’ Union v. Ontario {Attorney-General), (1996) 47 C.P (3d) 189 (Ont.
Gen. Div.), the above judgment was relied on to uphold an injunction against the peaceful picketing of a
courthouse by legally striking provincial public servants.
Labour Relations
116
Employee Status during a Strike
The extent of the protection afforded striking workers depends on whether the strike is legal.
R. V. Canadian Pacific Railway Co. [The Royal York Case] (1962), 31 D.LR.(2d) 209 3t 211,
216, 218-20 {Ont. H.C.)
Appeal by way of stated case from a provincial criminal court’s dismissal of an unfair labour practice
charge against the Royal York Hotel.
FACTS: During the course of a legal strike, the hotel’s management sent a letter to strikers telling them to
report back to work or to be fired.
DECISION: held that this letter amounted to an unfair labour practice.
RATIO:
 Section 1 (2) of the Ontario Labour Relations Act provided that no one “shall be deemed to have
ceased to be an employee by reason only of his ceasing to work for his employer as the result of a
lock-out or strike,”
 I think the Act throughout recognizes that there may be employees who are reporting for work and
employees who are on strike and it forbids the employer to dismiss or threaten to dismiss members
of either class because they engage in lawful union activities…
 The Act creates a statutory class of employees, viz., employees on strike.
 The relationship of employer and employee continues notwithstanding a strike unless that
relationship has been abandoned…
UPPER COURT DECISION:
The decision of McRuer C.J.H.C. was affirmed by the Ontario Court of Appeal, and by the Supreme Court
of Canada, sub nom. C.P.R. Co. v. Zambri (1962), 34 D.LR. (2d) 654.
Locke J. added this important dictum, at 657, with respect to the permanent replacement of lawful strikers.
“When employers have endeavored to come to an agreement with their employees and followed the
procedure specified by the Labour Relations Act, then they are at complete liberty if a strike then
takes place to engage others to fill the places of the strikers. At the termination of the strike,
employers are not obliged to continue to employ their former employees if they have no work for
them to do, due to their positions being filled. I cam find no support anywhere for the view that the
effect of the subsection is to continue the relationship of employer and employee indefinitely, unless it
is terminated in one of the manners suggested.”
IMPORTANT NOTE:
 In several provinces, the use of “professional strikebreakers” has been expressly forbidden: see, for
example, the Ontario Labour Relations Act, section 78.
 Quebec and British Columbia have much broader provisions that forbid employers from hiring even
temporary replacement workers or using certain classes of ongoing employees to perform bargaining
unit work.
 In other jurisdictions, where the hiring of replacements continues to be part of the employer’s
tactical arsenal, a controversial issue remains: can the employer maintain operations by using
permanent replacements to fill the strikers’ jobs without committing the unfair labour practice of
refusing to employ someone because of his or her participation in the lawful activities of a trade
union?
Labour Relations


117
In Ontario, the protection is more limited in that the striker must make an “unconditional”
application for reinstatement within six months of the commencement of the strike {Labour
Relations Act, 1995, section 80).
As the following extracts reveal, the dictum of Locke j. in Royal York may no longer reflect the
effect of general unfair labour practice provisions in this area.
Canadian Air Line Pilots’ Association [C.A.L.P.A.] v. Eastern Provincial Airways Ltd. (1983),
5 Can. LR.B.R. (N.S.) 368 at 409, 407 (C.LR.B.)
FACTS:
 During a lawful strike the company maintained operations by, among other things, hiring
eighteen new pilots to fill the strikers’ positions and promising those new employees that
they would retain their jobs after the strike.
 At the end of the strike the employer proposed a back to work agreement that left striking
pilots on layoff and their positions permanently filed by replacement workers. This left the
striking pilots eligible for recall, but only when positions became available.
 One of the union’s claims was that this offer violated section 184(3)(a)(vi) of the Canada Labour Code,
which made it an unfair labour practice for an employer to “refuse to employ or to continue to
employ...or otherwise discriminate against any person in regard to employment…because the person has
participated in a strike that is not prohibited by this Part…”
DECISION:
The board found in favour of the union.
RATIO:
Parliament went much further than s. 107(2) to protect the continued employment of those who
exercised their rights under the Code. The construction of s. 184(3) (a) (vi) could leave absolutely
no room for doubt that employees cannot be deprived of any term or condition of employment
whatsoever because of participation in a lawful strike. If an employee is so deprived, a reason,
other than the exercise of the right to strike, must be present.
The seniority provisions which normally govern the employment relationship at EPA would be
suspended long enough for EPA to accomplish what it could not lawfully do otherwise. That is, to
keep the new pilots and those who crossed the picket lines to work during the strike on the active
workforce out of seniority? What could be more blatantly discriminatory? And, what is the reason
for all of this? EPA cannot escape the answer!
Labour Relations
118
Chapter 9 – The Collective Agreement and Arbitration
The Common Law View of Collective Agreements
Prior to modern LR legislation in the 1940s, CAs were generally unenforceable at law; there was no system
of binding arb yet developed and Canadian courts were unwilling to entertain civil actions based on CAs
3 major CL obstacles stood in the way of the enforcement of CAs by civil action:
1. trade unions not considered not have the legal capacity to make binding Ks or to sue or be sued in
their own name; because they sought to affect operation of the labour market, they were thought to
operate an illegal restraint of trade; because they were unincorporated associations of individuals,
they were treated as being without legal status
2. courts doubted that Ers and Us intended their CAs to be legally binding as more than mere informal
understandings
3. traditional rules of privity of K were held to prevent individual employees from enforcing CAs to
which they were not themselves parties
Young v. Canadian Northern Railway [1931]
This case articulates what a CA is from CL perspective
FACTS: CA in force between the Railway Association of Canada (Ers) and Division 4 of the
Railway Employees’ Dept of the American Federation of Labor, P was not a member of Division 4;
in 1920 CNR hired him as a machinist, telling him that he would receive the going rate for
machinists but not giving him a written K; in addition to rules on hours and wages.
Wage Agreement 4 provided that in the event of a workforce reduction, layoffs would be in
accordance with seniority rule; P laid off out of order of seniority; he sued for damages for wrongful
dismissal, lost in the Manitoba courts, and appealed to the Judicial Committee of the Privy council;

at the time, no jurisdiction in Canada had labour relations legislation of the sort in force today
ISSUE: Can wrongful dismissal suit be founded upon breach of a CA?
HELD: Appeal is dismissed – there are no rights enforceable at CL from CA.
PRIVY COUNCIL ANALYSIS:
A CA at CL is not an enforceable K like a service agreement; it is something else, more like a
statement of desire between an association of workers and an Er; it is a set of ‘rules’ and does
not constitute a K between any individual Ee and the Er;
CA only means something in the CL if it has been incorporated into the individual eK; the
courts recognize ind.eK and so if you have an ind.eK you can put into its terms the terms of the
attached CA;
Court reasoned: if the Er didn’t obey the ‘rules’ the effective sequel would not be an action by any
employee, not even an action by Division 4 against Er for specific performance or damages  it
would be the calling of a strike.
If Young suffered an injustice, Division 4 could have sought to obtain it for him (court notes that
they did not choose to do so and comments that the moral is that the ‘open shop’ model actually only
benefits U members)
Labour Relations
119
History Note
Courts’ refusal to enforce CAs prompted legislative reform in 1943, Ontario enacted Collective Bargaining
Act, created a new branch of Ont Supreme Crt called Ontario Labour Court, with the power to render
binding interpretations of CAs; resort to Ontario Labour Court not compulsory
In 1944 federal gov’t used wartime emergency powers to override provincial legislative jurisdiction in
labour relations, promulgated PC 1003 – first time Canadian labour relations code required every CA to
provide a procedure for settling disputes over the interpretation of the agreement w/o resort to strike or
lockout
Grievance Arbitration as a Distinctive Form of Adjudication
Proponents of grievance arb contend that it offers very different form of adjudication than the courts do;
arbitrators are labour law or industrial relations specialists usually selected by the parties, whereas
judges are appointed by the state and are usually legal generalists; parties to a CA are free not only to
choose their arbitrator but also to design arb process to meet their particular needs; this form of selfgovernance is a central characteristic of Canadian CB law
Most arbs are lawyers trained in the CL; arb awards are subject to review by judges who are steeped in the
CL; theme of this section of the course is the extent to which arbitral jurisprudence is shaped in tension
between labour relations environment and the CL heritage of individual employment law
Labour Relations
120
MANAGEMENT RIGHTS
Re United Steelworkers of America and Russelsteel Ltd. (1966)
FACTS:
3 grievors contend that the Er has violated CA by removing the regular truck drivers from their jobs and
replacing them with persons who are not regularly employed in the BU; U requests truck drivers be
immediately returned to job and paid retro; context is a classic case of K-ing out and after grievors jobs
disappeared they were offered different jobs at lower wages by the Er; U grieves and argues an express term
in the CA that prohibits mgmt from contracting out BU jobs inasmuch as “Persons whose regular jobs are
not in the BU shall not work on any jobs which are included in the BU…” and that Ees of independent
contractor fall within this meaning as a breach of CA
ISSUES:
1. Is there an implicit limit on mgmt’s right to K out?
2. Is there an express term in the CA that restricts mgmt’s right to K out?
HELD:
There is no implicit limit on mgmt’s right to K out. There was no express term in CA restricting mgmt’s
right to K out.
REASONS:
K-ing out is a fraught issue in field of labour arbitration, due to serious repercussions for both Ee and U &
has symbolic significance in context of CA administration; many arbitrators w/ polarized ideas of how CAs
ought to be constructed:
‘reserved rights’ school which permits contracting out in the absence of some express prohibition in
the CA (according to this ideology arbitrators have taken position that typical mgmt rights clauses reserve
to the Er all of the pre-collective bargaining rights, save for those expressly bargained away in collective
negotiation)
Laskin, model: introduction of a CB regime involves the acceptance by the parties of assumptions which
are entirely alien to an era of individual bargaining – as such rights and duties of Er/Ee in CB context
cannot reference pre-CB standards of a “world which has ceased to exist”
Arthurs thinks pragmatism and realism are important in this context, given the need to strike a balance
between parties; principles emergent on nuances of particular situations

arbitrators have accepted mgmt’s right to contract out almost 5 times as frequently as they have
denied it but that this alone doesn’t propel a conclusion here; lack of an appellate tribunal to reconcile
conflicting awards of arbitrators on this matter; no doctrine of stare decisis in arb context; weighing
reserved rights against Laskin model Arthurs affirms that arbitrators are always “technically free to
interpret the argument as we think right”

Laskin’s notion of ‘broader climate’ of Er/Ee relations under CA is invoked; climate not just about
particular relationships of parties, also broader prevailing climate in industry, to all CB relationships and
general legal and social concepts in the world outside industrial relations. Arthurs notes particular
importance of (and controversy) surrounding ‘K-ing out’ as part of the climate for LR in ON:
Parties know strong probability that arbs won’t imply a limitation on mgmt’s right to K out in
absence of express terms & are aware as a practical matter of need to specifically prohibit K-ing
out if they are to persuade an arb of specific intention.
Labour Relations
121
Company argues (persuasively) that other CAs in Steelworkers locals commonly draw distinction between
clause U relies on (‘working foreman’) here and a clause prohibiting K out; U did not realistically expect the
ER to bargain away its right to K out when it procured acceptance of the ‘working foreman’ clause
Labour Relations
122
DISCIPLINE AND DISCHARGE
Almost all CAs provide Ee is not to be disciplined or discharged except for just cause (JC); such provisions
indicate the extent to which LR model is a radical departure from CL approach to discipline and discharge.
A JC clause is required by statute in some jurisdictions, such as BC, but is typically included in agreements
in jurisdictions where not statutorily mandated.
William Scott & Company Ltd. v. Canadian Food and Allied Workers Union, Local P-162,
[1977]
Case discusses this difference between CB and CL contexts for discipline and discharge and elucidates role
of arbitrator in CB;
Note: role of BCLRB differs from other Boards b/c it has statutory authority to review decisions of
arbitrators
FACTS:
Application brought under s. 108 Labour Code to have Board use discretionary power to set aside arbitral
award where it is ‘inconsistent w/ the principles expressed or implied in the Code’; legislation directly
expressly requires reasonable cause for dismissal or discipline; where grievances are brought to challenge
discharge under mandatory JC clause, Code confers statutory authority on arbitrator to settle dispute (as
statutory response to SCC overturn of OCA decision in Port Arthur Shipbuilding) under s. 98(d)
ISSUE:
How should arbitrators exercise their statutory authority to review and settle dismissal and discharge
disputes?
HELD:
Arbitrators have broad remedial authority to review and settle disputes, including contextual assessment of
Er response and may, upon assessment, provide lesser, or new penalties (tailored to the circumstances) on
grievor.
REASONS:
It is not legally correct for an arbitrator in a discharge case to assume that the CL definition of ‘cause’
remains unchanged in CB context

right to continued employment is normally a much firmer and more valuable legal claim under a CA
than under CL ind. eK & accordingly, discharge of an Ee under CB law, especially for senior Ee
under CA, is a qualitatively more serious and more detrimental event than it would be under CL

Er under standard CA progressive discipline model, which requires that lesser measures be tried
out before Er takes ultimate step of dismissal, cutting off Ee from all benefits of job and CA
TEST for arbitration of typical discharge grievance:
3 questions:
1. Has the Ee given just and reasonable cause for some form of discipline from Er?
 factual dispute
2. If so, was the Er’s decision to dismiss the Ee an excessive response in all the circumstances of the
case?
 Usually in connection with this question that the arbitrator’s evaluation of mgmt’s decision must
be “especially searching”:
i) Seriousness of the immediate offence;
ii) Ee’s conduct premeditative or repetitive or instead, was it a momentary and emotional
aberration;
Labour Relations
123
iii) Ee’s record?
iv) Has Er attempted earlier and more moderate forms of corrective discipline;
v) Is discharge of this individual Ee in accord with the consistent policies of the Er?
3. If discharge is considered excessive, what alternative measure should be substituted as just and
equitable?
 statutory responsibility of arb, having found JC for some Er action, to probe beneath the surface
of the immediate events and reach a broad judgment about whether Ee should actually lose job
for the offence in question
Labour Relations
124
Disciplinary Penalties
Re Cook and Ontario (Ministry of Labour) (1979) (Crown Employees’ Grievance Settlement
Board)
FACTS: Construction safety worker at MoL, charged for submitting 55 fraudulent inspection reports
and claiming traveling expenses for fictitious inspections; asked that penalty of dismissal be reduced
b/c his misconduct was attributable to alcoholism had since made efforts to control his problem;
Board power to substitute just or reasonable penalty for excessive dismissal or discipline under s.
18(3)
ISSUE:
Was the Er excessive in treatment of Cook in all the circumstances such that the Board should
exercise its power to reduce a disciplinary penalty of discharge?
HELD:
Discharge excessive and lesser penalty imposed (lengthy suspension through reinstatement w/o back
pay), as well as specific formal conditions based on the circumstances.
REASONS:

Conduct is very serious and normally would be regarded as JC for dismissal; nevertheless, in the
particular circumstances of this case, lesser penalty is warranted; alcoholism won’t always
provide an excuse for any misconduct that can be related to it; limits to Er’s responsibility to
maintain alcoholic Ees at some point

must balance Er and Ee’s interests in discipline cases to determine whether Ee can benefit
from corrective discipline and continue relationship; discharge very serious and may
jeopardize future job prospects; where Ee has alcohol problem could also undermine
recovery; if Ee can solve alcohol problem, he should stay
FACTUAL ANALYSIS:
Can Ee’s alcohol problem be resolved?

Yes b/c he has made a sincere effort at rehab and evidence is encouraging;
Can he fulfill his job duties satisfactorily?

Yes, he had a good record at MoL; expert evidence that misconduct was direct consequence of
alcoholism (now that alcoholism is under control won’t need to engage in misconduct)
Board orders conditions on reinstatement that he engage in formal rehab (reporting to supervisors)
for 1 year; during year of rehab will be monitored and if deterioration is evidenced as result of
alcoholism continued e+ should be reviewed
Note
One factor that let the arb in Cook to order reinstatement was grievor’s success in overcoming alcoholism
post-termination; the SCC has more recently considered whether arbs should consider evidence of what
happens after Ee is fired:
Compagnie Miniere Quebec Cartier v. Quebec (Grievances Arbitrator) [1995]
FACTS:
Er had dismissed grievor because he had repeatedly missed work, in part b/c of serious problems
with alcohol. Progressive discipline penalties had in the past been instituted and reduced in
exchange for Ee’s promises to undergo rehab and he had not kept promises; after the dismissal
giving rise to grievance, the grievor underwent successful course of treatment for alcoholism;
Labour Relations
125
arbitrator held that Er had been justified in dismissing him on facts that existed at the time of
dismissal, but that reinstatement should be ordered in light of subsequent events;
SCC HELD: that arbitrator had exceeded his jurisdiction by relying on ‘subsequent-event’
evidence as grounds.
“an arbitrator can rely on such evidence, but only where it is relevant to the issue before him. In
other words, such evidence will only be admissible if it helps to shed light on the reasonableness and
appropriateness of the dismissal under review at the time it was implemented.”
Labour Relations
126
Damages
Re Polymer Corp (1959)
Laskin’s perspective on arbitral authority to award damages for breach of CA is upheld in this case, which
was aff’d by SCC.
FACTS:
U had called a strike in breach of CA; earlier award by arb board had held that it had authority to
grant damages to Er for losses caused during strike; when board reconvened to assess quantum, U
reopened damages power issue; CA said nothing about awarding of damages and it contained
standard limitation on arbitral authority:
“…Arb…shall not have power to alter or change any of the provisions of CA, nor to give any
decision inconsistent with the terms and provision of this agreement”
ISSUE:
Does arbitration board have the power to award damages for breach by parties of CA?
DECISION:
Rejects U argument that CA limits arb power to award damages because isn’t covered in CA & that
CA is voluntary and parties cannot be deemed to have committed themselves beyond that which was
expressed K undertaking on the basis that award of board is made final and binding only through
election of the parties and not through compulsion of legislation or regulation.
REASONS:
It is not required for U and Er to both want result of settlement through arb; CAs have
historically been placed outside legal frameworks of K law; boards of arb were entrusted with
a duty of effective adjudication, differing in no way, save perhaps in the greater responsibility
conferred on them, from adjudicative authority of courts in context of civil breach of K; clear
that adjudication intended to be remedial as well as declaratory (equally essential to admin of
CAs as successful negotiation in the first place);

aggrieved Ers are just as deserving of stability w/in CAs as U and Ees; in admitting their own
responsibility for due observance of CA obligations, they could not be expected to agree to any
lesser standard of performance by Us and Ees (this co-operative goal for orderly procedure of
CB linked to prompt and equitable disposition of grievances is enshrined in CA)

Board’s remedial authority making whole as possible; redress may be measured by wrong done;
not a penalty

Given the history and purpose of CB, adjudication involving abstract pronouncements or devoid
of direction for redress would be particularly unwelcome in labour arbitration  you cannot
imply any limitation
Principle:
Irregardless of parties’ intentions to the binding effect of their reciprocal rights and obligations,
legislation confers binding authority on CA that all parties are subject to.

statute carries policy further by reinforcing the binding character of a CA with binding adjudication of
disputes concerning its interpretation or violation;

Whether assessing on statutory effect alone or in terms of intention of parties (which is viewed in light
of the statute) result is the same.

It should not be possible for parties to qualify this result in CA language; there is a (compelled)
intention that the CA shall be binding and that any alleged violation shall be submitted to binding
arb
Labour Relations
127
Note: it is now well accepted that an arb may award damages in accordance with general K principles, even
if there is no specific provision to that effect in CA (St. Anne Nackawic)
Labour Relations
128
EXTERNAL LAW AND MULTIPLE FORMS
Arbitration and Employment-Related Statutes

The employment bargain is affected not only by CA, also by statutory regimes, including those in
relation to HR, ES, OH&S, WC, and, in some jurisdictions, pay and e+ equity.

Extent of the authority of arbs to apply those statutory regimes has been major issue for past 3
decades
Perry Sound (District) Social Services Administration Board v. OPSEU (2003)
Relevant legislative provisions:

ESA s. 44 (mat leave protection), s. 64.5(1) (Act read into CA);

LRA s. 48.1 (all disputes to binding arb without stoppage of work, including any question as to
whether matter is arbitrable), s. 48(12)(j) arb has power to interpret and apply HR and other
employment-related statutes, despite any conflict between statutes and CA

HRC s. 5.(1) right to equal treatment with respect to employment w/o discrimination
FACTS:
CA term provides that Er can fire probationary Ee for any reason it likes and the U cannot grieve it
[no access to JC unless you have passed probationary period]; Ee went on mat leave and Er fires
her; U grieves on basis that discharge from job was w/o justification and decision was arbitrary,
discriminatory, in bad faith and unfair; Er argues explicit meaning of article; U says that the term
does not apply when the Er’s interpretation of their rights under the CA translates into a violation of
HR statute; Er argues that arbitrator has no jurisdiction outside of the CA; Board found it arbitrable;
OCA upheld on the basis of that the substantive rights and obligations of the ESA are incorporated
into the CA
ISSUE:
Does an arb have the power to enforce the substantive rights and obligations of HR and other
e+-related statutes and, if so, under what circumstances?
HELD:
Board was correct in concluding that the substantive rights and obligations of the HRC are
incorporated into each CA over which the Board has jurisdiction.

Under a CA, the broad rights of an Er to manage the enterprise and direct the work force are
subject not only to express CA provisions, but also to statutory provision of the HRC and other
e+-related statutes.
Iacobucci Reasons:
CA is foundation of arb jurisdiction; absent violation of CA there is no jurisdiction over a dispute;
Parties in this case agree that express CA provisions impose no fetters on Er’s right to discharge;
This is why U argues that OHRC is implicit in CA;

From McLeod: you have to look beyond four corners of CA in order to ascertain the
substantive rights and obligations of the parties to the agreement; CA in McLeod was
objectionable b/c the powers it extended to Er were sufficiently broad to include the power
to violate its Ees’ rights under ESA; practically, this means that the substantive rights and
obligations of e+-related statutes are implicit in each CA over which arb has jurisdiction;
HR and other e+-related statutes establish a floor beneath which Er and U cannot K.

48.1 of the LRA prohibits parties from enacting provisions to make elements of CA unarbitrable;
by operation of s. 5(1) of HRC, right of probationary Ees to equal treatment w/o
Labour Relations
129
discrimination is implicit in CA, discriminatory discharge is a violation of CA and article is
thus void as contrary to s. 48(1) of LRA.

Plain and ordinary meaning of s. 48(12)(j) provides clearly for arbitral power to “interpret and
apply” despite any conflict between statutes and CA; “interpret and apply” includes power to
implement and enforce rights and obligations contained in statute, regardless of conflict;
any CA article that is sufficiently broad to include the right of mgmt to discharge a
probationary Ee for discriminatory reason gives rise to arbitrable conflict

ESA ss. 44 and 64.5(1) have the joint effect of deeming each CA to have a term that prohibits the
discharge of a probationary Ee b/c she took or intends to take pregnancy leave; thus the subject
matter of grievance here clearly constitutes a dispute that arises under CA over which Board has
jurisdiction; in terms of procedure, terms of the ESA are read into the CA; if Ees have an ESA
complaint they have to deal with these by filing a grievance;
POLICY CONSIDERATION: It is essential that there is a means for providing speedy decisions in
regard to HR by experts in a field who are sensitive to the workplace environment, and which can be
considered by both sides to be final and binding; Court thinks it is beneficial to have another
accessible, inexpensive, and informal avenue for HR realization  more likelihood of Er’s asserting
rights and also more likely compliance with HRC
From this case:
Because arb has express statutory power, because statutory rights and obligations are read
into CA, because the LRA provides that all disputes go to arb, we know that the arb has
expansive jurisdiction in e+-related issues in regard to U workers. It is not only Ee rights
under CA but under other statutory regimes; a very comprehensive statutory regime points in
its entirety to the arb being allowed to apply these statutes into LRA arb context.
Labour Relations
130
Arbitration and the Charter
Where the arb’s power derives from statute, their orders are not subject to the Charter
Whether Charter applies in arbitral dispute is dependent on nexus with government

Applied in Douglas College b/c colleges are subject to gov’t control sufficient to be considered an
apparatus of state; in Lavigne application of the Charter to U security provisions turned on the finding
that the Er was a governmental actor and its acquiescence to a U request for Rand formula clause in the
CA was sufficient to constitute government conduct
Multiple Forms
An Ee whose U files a grievance and subsequently invokes arb under a CA may also have claims under
other statutes or at CL; Ee may therefore want to bring a civil action or file a complaint under HR
legislation, and same set of facts might lead to complaints under other employment related statutes
Arbitration and Civil Actions
St. Anne Nackawic
Er had obtained an interim injunction against an illegal strike by U and then sued in tort for damages
resulting from strike;
case established that with some exceptions, the grievance and arb procedure under the CA has
exclusive jurisdiction to deal with disputes arising between the parties to the agreement and the
jurisdiction of the courts was therefore ousted.

SCC held that permitting concurrent actions would undermine the statutory mandatory arb scheme, but
that there remained a discretionary power in courts of inherent jurisdiction over matters such as
injunctions
Weber v. Ontario Hydro [1995] SCC
Case on the question of arbitral jurisdiction to hear Charter issues and grant Charter remedies. His
Er was the government.
ISSUE:
To what extent does the arbitral scheme oust jurisdiction of courts in civil matters?
HELD:
Any dispute that arises expressly or inferentially has to go to arbitration under no concurrent
jurisdiction model. This includes tort and Charter challenges.
SCC (McLachlin) Reasons:

Weber argued that jurisdiction over torts and Charter claims shouldn’t be conferred on
arbitrators b/c they lack special expertise on legal questions arising from these types of
claims. SCC dismisses this claim on the basis that arbitrators are subject to judicial review
and any errors they make are correctable by the courts.

Weber also argues that arbs lack legal power to consider the issues before them. SCC dismisses
this on the basis of conferred power and duty of arbs to apply law to disputes before them and
defer to CL and statutory authority
What if a remedy is required that arb is not empowered to grant?
Labour Relations

131
Courts of residual inherent jurisdiction in each province may take jurisdiction in order to
avoid “real deprivation of ultimate remedy” (St. Anne)
SCC reviews concurrent and overlapping jurisdictional models

Rejects concurrent model in which courts have jurisdiction over CL or statutory claims even
when they arise in the employment context;
o St Anne Nackawic stands for principle that mandatory arbitration clauses in LR
statutes deprive courts of concurrent jurisdiction.

o ON statute says arb the only available remedy for differences arising out of the CA 
differences referred to the dispute between the parties, not to the legal actions which
one may be entitled to bring against one another: what is excluded from the courts by
the object of the provision is all proceedings arising from the difference between the
parties, however the proceedings are framed. “…Where the dispute falls within the
terms of the Act, there is no room for concurrent proceedings”; Permitting
concurrent actions would undermine the goal of the CB regime to resolve disputes
quickly and economically with a minimum of disruption
Rejects overlapping jurisdiction model in which, notwithstanding that the facts of the
dispute arise out of CA, a court action may be brought if it raises issues which go beyond
traditional subject matter of labour law; based on characterizing a cause of action which lies
outside the arbitrator’s power and expertise, this model violates St Anne and the injunction of the
Act that one must look to facts giving rise to dispute, not to legal characterization of wrong;
Permitting overlapping jurisdiction might result in proliferation of novel claims in violation of
legislative prohibition on parallel court actions and undermine both legislative purpose and
intention of parties to the agreement
This approach doesn’t preclude all Er/Ee related stuff from going to court, just those that
expressly or inferentially arise out of the CA are foreclosed to the courts, subject to inherent
jurisdiction noted by Estey in St Anne
RATIO:
No overlapping or concurrent jurisdiction: if the difference between the parties arises from
CA, the claimant must proceed by arb and the courts have no power to entertain an action in
respect of the dispute.
TEST:
In determining whether arbitral regime has exclusive jurisdiction, the test is not whether the
action, defined legally, is independent of the CA, but rather whether the dispute is one “arising
under CA”; would include analysis of both dispute and ambit of CA: Must look to ‘essential
character’ of dispute:

in majority of cases nature of dispute clear (either to do with CA or not); some cases not so easy:
question to ask in each case is:
whether the dispute, in its essential character, arises from interpretation, application,
administration or violation of CA
Labour Relations
132
The nature of the dispute and the ambit of CA will vary on circumstances, so impossible to
categorize with absolute certainty the classes of case that will fall under exclusive arbitral
jurisdiction.

generally though, courts don’t have jurisdiction over: wrongful dismissal; bad faith on part
of U; conspiracy and constructive dismissal; and damage to reputation
Class Note: there has to be some kind of a link between a properly founded arbitrable CoA and the CA (in
Weber there was a clause in the CA that said the Er had to create Ees fairly) the law on this is still
developing.
Labour Relations
133
Chapter 10: The Individual Employee Under Collective
Bargaining
Remember Majoritarianism and Exclusivity!
There is a belief inherent in our system that unions need effective bargaining authority and a substantial
degree of internal solidarity, therefore certain features have been incorporated into the Canadian Labour
Relations model to help ensure this; such as, the exclusive authority of the union to take grievances to
arbitration, not the employee, and the explicit allowance of Union Security Clauses in the LRA.
2 Main Ramifications of Exclusivity:
1. Once a union has been certified the employer is precluded from bargaining with any other union or
person on behalf of any of the employees International Brotherhood of Boilermakers v.
SheaferTownsend Ltd. (1953) O.L.R.B.
 This means that the U selected by the majority of workers ends up being the U for all of the
workers in the BU, whether they like the U or not. SO union might end up rep. someone who
hates the union
 Note: In European models you can have minority Us.
2. Once the U is certified and has obtained the right to represent workers, the CL principles are
replaced by the collective regime. This was confirmed by the SCC in Syndicat catholique des
employes de magasins de Quebec Inc. v. Compagnie Paquet Ltee (1959) SCC: Certified U becomes
the EXCLUSIVE representative of the Ees and all remnants of the Employment Contract at
Common Law come to an end (reasonable notice)
McGavin Toastmaster Ltd. v. Ainscough [1976] SCC
FACTS: unionized plant, the collective agreement said employees get severance pay if the employer
closes the plant. The employer decides to close the plant. B/4 the employer actually closes the plant
the employees go on strike. This is an illegal strike b/c there it is during the term of a collective
agreement. The employer argues that they no longer have to pay severance to the workers b/c they
essentially quite their jobs by not coming to work, they fundamentally breached an aspect of their
employment contract by not coming to work.
ISSUE: has there been a fundamental breach of the employment contract? Is it still appropriate to
speak for the employment contract in light of the collective agreement?
HELD: Employer has to pay them severance pay, appeal dismissed.
RATIO:
There is no room left for private negotiation b/w employer and employee. Certainly to the extent of
the matters covered by the collective agreement, freedom of contract b/w master and individual
servant is abrogated.
The common law as it applies to individual employment contracts is no longer relevant to
employer-employee relations government by the collective agreement. Therefore common law
concepts such as repudiation and fundamental breach cannot be applied if there is a collective
agreement in force.
Labour Relations
134
The union does not contract with the employer as an agent of the employees it contracts as an
independent party.
REASONS: The company was free to take disciplinary action against the employees which might
have resulted in them having justified cause for termination if the issue had gone to arbitration, but
they did not choose to frame the question that way, they said that the employees ceased to be
employees by reason of their strike, and this is not the case. They didn’t each terminate their
employment contracts, b/c there was a collective agreement in force. The company is required to
pay severance pay.
Labour Relations
135
Duty of Fair Representation
Duty of Fair Representation is a statutory duty that imposes an obligation on the U to represent
EVERYONE in exchange for exclusivity principle. What is the content of this duty?
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.
(The reason why it matters whether or not you are a union member and not just a member of the bargaining
unit is b/c only union members are covered by a union’s constitution. Only union members will be covered
by the rights for internal union participation. So if you are a member of the bargaining union you still have
to be “fairly represented” but you don’t necessarily have as much access to influencing internal decisions
made by the union.)
Duty of Fair Rep arises in two scenarios: bargaining and deciding to
bring a grievance.
The regulation of Union Bargaining by the Board using Duty of Fair
Representation:
in bargaining negotiation of CA – applies to the U’s behaviour in terms of what it proposes and what it
agrees to (the union cannot punish employees who oppose them and reward those who support the union)
More difficult is when the union has to choose between the interests of competing employees
In these scenarios SOMEONE is going to be pissed off at the U no matter what they do
Bukwich v. Canadian Union of United Brewery, Flour, Cereal, Soft Drink and Distillery
Workers local 304 and Dufferin Aggregates (1982) O.L.R.B.
FACTS: Collective agreement b/w union of dependent contractor truckers and employer. The job
was hauling stuff from a quarry. There had been a decline in the construction business recently and
most of the truckers were not making enough money to meet their expenses. The collective
agreement prohibited lay-offs and the loads were distributed according to the seniority of the
truckers. Senior truckers asked union to re-open negs with the er - they wanted lay-offs to happen
according to seniority. Union voted and majority of ees propose a lay-off clause. Er agreed to a layoff provision by seniority, and nine truckers were laid off. Some of them claimed that re-opening
negotiations with the employer was a violation of the duty of fair representation under section
68(now 74).
ISSUE: Did the actions of the union amount to a breach of the duty of fair representation?
HELD: The union did not breach the duty of fair representation, complaint dismissed. Board
commented that neither the motive for or consequences of the decision violated the duty of fair
representation, and the procedure followed by the union was free of arbitrariness, discrimination and
bad faith.
RATIO:
Labour Relations
136
In discharging its duty to fairly represent all of the employees in a bargaining unit a union
must address its mind to the circumstances of those who may be adversely affected by its
decision. It has a duty to weigh the competing interests of the employees it represents and
make a considered judgement the procedure and result of which must be neither arbitrary,
discriminatory nor in bad faith.
The appropriate standard of review of the union’s decision by the Board is: the Board should
ask not whether the decision is right or wrong, but rather it should ask whether it is a decision
that could reasonably be made in all of the circumstances. Rational means the rational
application of relevant factors after considering and balancing all legitimate interests and
without regard to extraneous factors (We are going to give significant deference to the U. as
long as the decision was reasonably made and was not tainted by bad faith. Was there
objective justification for the decision?).
REASONS:
Union was in a crisis situation and decided to benefit a larger number of employees over a minority.
The union clearly turned its mind to the problem, went through a democratic process and thought
about the concerns of the drivers. Some of the truckers testified that they would rather risk being
laid off then maintaining the unbearable financial status quo.
The regulation of Union decisions to Grieve by the Board using Duty of Fair
Representation:
b/c the union is the party to the collective agreement and not the employees, then it is the union’s decision to
go to arbitration. (unless collective agreement says otherwise).
In Weber we saw that there are a lot of employee rights that are tied into the grievance process, so if the
union decides not to go to arbitration the employee has no other means to enforce their rights.
Under section 74.:
Bad faith means decisions that are not based on relevant facts. For example decisions that are based on
personal favoritism.
Can’t be based on politics
To determine if it was not based on relevant facts one has to do an investigation of the facts and make
a reasoned decision of the MERITS and EFFECTS of the decision
Essentially the board will not second guess the union’s decision, they only look at the process by which the
union came to their decision.
Rayonier Canada B.C. Ltd v. International Woodworkers of America, Local 1-217 (1975)
B.C.L.R.B
FACTS: workers at a lumber mill; because of fluctuations in the demand for lumber there are
predictable layoff and hiring cycles; collective agreement says that recalls and layoffs are done in
order of seniority. BU ee challenged the practice and argued that the er has ignored hire-back
process in collective agreement. Ee complains to U, but U wont grieve b/c the practice benefits the
BU as a whole; union drops grievance; Ee files complaint alleging breach of duty of fair
representation
ISSUE: did the union breach duty of fair representation by not pursuing Ee’s grievance?
Labour Relations
137
HELD: Union was not breaching duty of fair representation by dropping Andersons grievance.
RATIO:
the board won’t second guess the union, it only looks at the process through which the U
arrives at its decision (making sure it is made in good faith)
Union must not be actuated by bad faith in the sense of personal hostility, political revenge or
dishonesty. The union must take a reasonable view of the problem before it and arrive at a
thoughtful judgment about what to do after considering the various relevant and conflicting
considerations.
Factors to consider when deciding whether it was proper to not send a complaint to grievance:
 How critical is the subject matter of the grievance to the interest of the employee
concerned?
 How much validity does his claim appear to have either under the language of the
agreement or the available evidence of what has occurred, and how carefully has the
union investigated there?
 What has been the previous practice respecting this type of case and what expectations
does the employee reasonably have from the treatment of earlier grievances?
 What contrary interests of other employees or of the bargaining unit as a whole have
led the union to take a position against the grievor and how much weight should be
attached to them?
Employees don’t have an absolute right to have their grievances heard, union has right to settled
them.
REASONS: Our whole system depends on a union’s ability to settle and withdraw frivolous cases;
this weeding out process allows the union to use its resources effectively and only pursue worthy
cases. The unions ability to settle also encourages an environment wherein the employer will be
more reasonable with its position on grievances. If this system works properly then only cases that
will be litigated are those that should be and are legitimate disputes.
In this case the U had to resolve a conflict between conflicting interests of on employee vs rest of
BU.
Board comments that maybe if the right was in the collective agreement in clear language the union
would have to enforce the seniority right as Anderson would like, but in this particular collective
agreement the right is not clearly stated.
U has the right to withdraw a grievance when winning a grievance would be detrimental to the BU
as a whole
Labour Relations
138
What is the remedy if the board finds that the union did violate the duty of fair
representation?
The remedy is that the board will order the grievance to proceed to arbitration.
The board will not decide the grievance, they can’t b/c only the arbitrator has jurisdiction under the
collective agreement.
If they think there has been hostility generated b/w union and employee, the board can order the union to
pay for the employee to hire a lawyer to go to arbitration with.
LB COULD order that, in the event that the Ee is reinstated, that the U is on the hook for part of the back
pay.
Collective Agreements and Individual Rights: A Note on the Duty of Fair Representation (Bernard
Adell)
Supports employees being able to take individual claims to arbitration not backed by respective union.
We exaggerate the risks of allowing employees to take individual claims to arbitration.
Thinks the current process is hard for “unsophisticated” employees to navigate. Difficult for them to
complain about union’s refusal to pursue grievance.
Responses to dangers associated with allowing employees to take there own grievances to arbitration:
1. Arbitration system might be over run with cases
This isn’t likely cause employees can’t afford it unless they are financially backed by a competing
union, which would prefer a drawn out circus like proceeding to discredit the incumbent union rather
then straight forward proceeding brought by employee
2. Frivolous cases
A requirement that employees who lose pay costs (perhaps appropriate to their means) would deter
employees from brining worthless actions with no chance of winning.
3. Inconvenient for Employer
Because employer has to wait until each individual employee has determined not to take a grievance to
arbitration, instead of just waiting for the union to decide
But would be much of a problem cause individual employees wont take grievances forward often, b/c of
cost, low success rate, etc.
4. Undermine the authority of the B Agent (union)
If the union does a good job of screening grievances should worry about this.
Thinks we should look to Western Europe which has Labour Courts which hear both claims by unions and
by individual employees. The experience in Sweden has been that very few cases have been brought by
individuals, despite right being there to use. Also, Labour Courts are sensitive to the needed flexibility in
administering the collective agreement.
Labour Relations
139
Union Security
Ability of the union to bargain terms into the collective agreement that ensures the existence of the union.
Usually a clause that provides for the employees to pay union dues
Closed Shop Clause
This is the strongest clause the union can bargain
This says that the employer can only hire union members
It isn’t that common outside of construction, but it is quite common in construction
Union Shop
This is when you don’t have to be a member when you are hired, but as soon as you are hired you have to
join the union.
If you don’t join the union you can be fired. (remember Therion case: guy refused to join)
This type of clause is not that common in ON.
Maintenance of membership
You don’t have to join the union, but once you do you have to maintain you membership or else risk losing
you job.
Rand Formula (agency shop)
Most common clause
Every employee in the bargaining union has to pay dues. You don’t have to become a member.
This type of a clause is supported by the labour relations act : section 47 as statutory minimum. This means
that the employer has to agree to this type of clause if it is proposed by the union.
47. (1) Except in the construction industry and subject to section 52, where a trade union that is the
bargaining agent for employees in a bargaining unit so requests, there shall be included in the
collective agreement between the trade union and the employer of the employees a provision
requiring the employer to deduct from the wages of each employee in the unit affected by the
collective agreement, whether or not the employee is a member of the union, the amount of the
regular union dues and to remit the amount to the trade union, forthwith.
So as least this standard is included in every collective agreement, b/c all the union has to do is ask for it and
the employer can’t disagree. Thought is also that it might encourage dissenters to join to have a say over
where their money goes.
Voluntary Check Off
Weakest clause.
The employer just deducts union dues from those employees that have selected that dues be deducted from
their pay-cheques.
Labour Relations
140
Religious Objector
Under the Rand Formula there is one exception to the requirement to pay dues or to become a member.
If you are a bargaining employee you are bound by the security clause that the union bargains, unless you
cannot pay union dues or join a union because of your religion. This is under section 52 of the Act.
52. (1) Where the Board is satisfied that an employee because of his or her religious conviction or
belief,
(a) objects to joining a trade union; or
(b) objects to the paying of dues or other assessments to a trade union,
the Board may order that the provisions of a collective agreement of the type mentioned in clause 51
(1) (a) do not apply to the employee and that the employee is not required to join the trade union, to
be or continue to be a member of the trade union, or to pay any dues, fees or assessments to the trade
union, provided that amounts equal to any initiation fees, dues or other assessments are paid by the
employee to or are remitted by the employer to a charitable organization mutually agreed upon by
the employee and the trade union, but if the employee and the trade union fail to so agree then to a
charitable organization registered as a charitable organization in Canada under Part I of the Income
Tax Act (Canada) that may be designated by the Board.
So if your religion prevents you from joining you are still in the bargaining unit and can still file a
grievance, but you have to pay an equivalent amount of “dues” to a charity.
Courts have developed a stringent test to determine if someone is truly a religious objector. The C.L.R.B. set
out a four part test in Barker and Teamsters Local 938 (1986) and then added a fifth factor that makes the
test even harder to met in Wiebe and C.P.A.A. (1987)
Five part test:
1. the employee must object to all trade unions
2. while the belief need not be based on a specific tenet of a religious faith, the employee’s case is
stronger if it is
3. the belief must be objectively related to a belief in the Divine
4. the employee’s religious belief must be sincere and not be a rationalization of a personal antipathy to
unions.
5. whether the grant of an exemption is a compelling necessity for the employee
You can’t object to just one union policy, such as abortion rights. These claims have generally been
unsuccessful.
In Staub and CUPE, Local 411 (1976) C.L.R.B Held that a member of the 7th day Adventist Church was
exempt from union dues b/c he objected to all unions, he didn’t have a political motive, his church had an
explicit position that opposed its members from belonging to or participating in unions.
Labour Relations
141
Union Security Provisions and the Role of Unions in Society
What if the union uses the dues that I have paid to fund things that I don’t agree with?
Lavigne v. Ontario Public Service Employees Union (1991) SCC
FACTS: professor objects to dues being used fund abortion rights, NDP, teachers strike fund, etc. Ee
argued that requirement to pay dues and the union’s ability to use them as they please was a
violation of either or both of his freedom of expression and or his freedom of association. Said that
the use of the dues violated his charter rights (wasn’t arguing about having to pay dues, just their
use) A right wing organization funded him all the way to the SCC.
ISSUE: Were his charter rights violated by the use of the dues by the union
HELD: SCC dismisses his complaint. There isn’t a breach of either right
RATIO:
The requirement to pay dues does nothing to your right to speak out against the causes that the union
is supporting. The union supported activities represent the opinion of the union as the representative
of the majority of the employees, therefore doesn’t necessarily implicate him at all. Therefore there
is no limitation on your freedom of expression.
You are not even required to join the union, so your freedom of association isn’t affected.
REASON:
Even if there is a breach of your charter rights here it would be saved by section 1.
You can’t separate the economic and political activities of a union. You can’t say that the
union is only permitted to use dues for the purposes of collective bargaining and not for
political causes. You can’t separate the two because they are intertwined.
Many things that political parties do will affect directly what the union is able to bargain at the table.
La Forest gives the example of if the gov. brings in subsidized child care then the union will not
have to bargain child care at the bargaining table. So unions should have a right to engage in the
political process
Unions serve a very important function in our society in terms of contributing to the political
debate. They give a voice to the disadvantaged and they should be supported in giving a voice
to the disadvantaged.
La Forest states that there are two state objectives involved in forcing someone to pay dues knowing
that the dues might be spent on “irrelevant” or not of immediate interest at the bargaining table:
1. To ensure that unions have both the resources and the mandate necessary to enable them to
play a role in shaping the political, economic, and social context within which particular
collective agreements and labor relations disputes will be negotiated or resolved.
2. Contributing to democracy in the workplace.
Labour Relations
142
Note: the SCC held that Ontario Community Colleges are under substantial government control,
therefore the collective agreements that the colleges are party to have to respect charter rights, and
therefore the Charter is applicable.
You cannot separate the political and economic activities of a U
Same analysis would apply to s. 47 (the important political discourse functions of U would mean the model
is saved under s. 1)