Table of Contents2002 Changes:3Benefits of Unions:4Values + Introduction4Common Law Regime4CB Regime:4Statutory Regulation:4Constitutional Jurisdiction:4Four Main Reasons for the legislating workers rights5Employment Standards Acts:5Employer Self-Regulation6Canadian Woodworks LTD v United Steelworkers 20056The purpose of ousting the ESA:7Employee Property Right:7Human Rights:7Pre-Meiorin Conventional Approach to Discrimination:7BC v BCGEU (Meiorin) 1999 SCC (duty to accommodate/firefighter)7Grismer 1992 SCC8Health Sciences v Campbell River 2004 BCCA8Discrimination on a Prohibited Ground8Seli Canada Inc 2007 BC8What is Undue Hardship?8Central Okanagan School Dist v Renaud SCC 19929Re Tarxien Co and CAW 19979Independent Employer Duty of Investigation9Conte v Rogers Cable 19999Rozon v Barry Marine 20009NFLD Treasury Board v NFLD and Lab Assn 2004 SCC9Harassment10Mahmoodi v Dutton 2001 (definition of harassment)10Janzen v Platy Enterprises 1989 SCC (rationale)10Robichaud v Canada 1987 SCC (employer liability)10Chapter Three: Participation in Collective Bargaining11TO determine if someone is an Employee for the Purposes of CB:11Dependent Contractors: s.2811Pacific Press BCLRD 1977 (are dependent contractors EEs?)11West Fraser Mills LTD 1993 (criteria for dependent contractors)11Semiahmoo Management Ltd 1998 (illustration of DC)11Exclusions (s.139 Boards jurisdiction to determine exclusions)11Corp of Dist of Bby and CUPE 1974 (management exclusion rationale)12VGH and BC Nurses Union 1993 (BIG THREE Criteria for management exclusion)12Alma Mater Society 1998 (Confidential Exclusion)13Central Park Lodges of Canada and HEU 198213Trade Union13Rempel Bros Concrete and Fairwest 197613Protection the Right to Organize (Chapter 4)14Three key mechanisms to protect and foster the right to organize.14Purpose of Protection from Unfair Labour Practices:14Discrimination against EEs w/Union activity:14Barrie Typographical Union/Barrie Examiner 197614Lakes District Maintenance LTD 2006 (s.14.7 ER must prove BOP)15SIEU and Focus Building Services 1987(ER still has discretion to discipline and discharge for non-union tainted reasons)15White Spot and CAW 199315Cheshire Homes and HEU 200115Employer Communications During Organizing Period s.6.3.d & s.8 s.915Cardinal Transportation and Ed Klassen 1996 (pre-2002 ER communications)[two cases considered together}16Convergys Customer Management Canada Inc and BCGEU 2003 [s.8,9,6.1 balance]17RMH Teleservices International v BCGEU 2002 [s.8:must look at context, forced listening]17SELI Canada Inc (Re) 2007 BCLRBD17Employer Manipulation of Working Conditions/Statutory Freezes. (s. 6(3)(d); s.32, s.45)18Business as Usual Rule:18UNION UNFAIR LABOUR PRACTICES:18Delta Hotels and CLAC [popularity contest between unions]- board is hands off!18Organizing at Work18Remedies for ULPs: (s.14, 133-generally)18Remedies for Discharge:19Cease and Desist:19Remedial Certification:19Imposition of a First Collective Agreement:19Rectification, Damages, and Make Whole Remedy:19Kidd Bros: (make Whole)19National Bank (creative/unusual) (bank closed the branch to break the union)19Re National Bank of Canada SCC 198420White Spot and CAIMAW 198920Obtaining, Retaining and Terminating Bargaining Rights20The Certification Process:20Voluntary recognition:20Determining Majority Support: s.18.1; 24;2521Determination of Appropriate BU: Community of Interest AND OBU21ICBC and CUPE etc 1974 One big unit better than COI21BC Ferry Corp and BCGEU 1977 (OBU better than COI confirmed)22MacMillan Bloedel LTD OTEU 1984 OBU the best way to go22SORWUC AND CIBC 1977 (exception to OBU)22The Current Test of determining BU:22Island Medical Laboratories LTD (IML) and HSA of BC LCLRB 199322Application of Island Medical Labs:24Can-Am Produce and Trading LTs (initial BU) what is Functional integration- access to CB is most important factor24COI at Second Stage (changing existing BU)24Costco Wholesale Canada OPEIU 1988 (industrial stability is the important factor)24Preserving Bargaining Rights25Successorship s.3525Kelly Douglas and Co 197425General Test of Successorshop: Discernible Continuity25Cariboo Trail Hotel Corp and Local 40 199925Key Person Doctrine26Integration of Predecessor Business:26Common Employer/common control of affiliates26Mackie Bros 198126DUTY TO BARGAIN IN GOOD FAITH s.11; 47.126General approach to Duty to Bargain:26Noranda Metal Industries LTD and CAIMAW 197426Hard Bargaining? Or Bad Faith?27United Steelworkers of America and Radio Shack 1980 (surface vs hard bargaining)27Royal Oak Mines Inc v Canada 1996 SCC (Obvious breach of good faith bargaining)27Disclosure of information and good faith bargaining27Noranda Metal Industries again: (ER didnt disclose fringe costs) w/o info: s.1128Jackman Construction 198728Notice of Significant Changes: Duty to Disclose Changes s.53; 5428International Woodworkers v Consolidated Bathurst 1983 (common law disclosure?)28S.53: Duty to disclose major changes in the workplace:29Remedies for Breach of Duty to Bargain in Good Faith:29First Contract Arbitration: s.5529Misc Workers, Teamsters and London Drugs 197429ECONOMIC SANCTIONS30Peace Obligation: s.57, 84,30The Reserved Rights Doctrine (Management Rights)30Ritchie Cut Stone 196630STRIKE!30Charter Exception: Political Protest:31Prerequisites to a Lawful Strike: 57; 59.1; 60.1; 56; 75 31EMPLOYER SANCTIONS31Lockout! S.6131Continue of Operations and Replacement workers: s.6831Last Offer Vote s.7831Bridging Clause:32Unilateral Alteration of CA s.45.232Picketing generally prohibited via s.67 [leaflet s.64]32Location and Type of Picketing32Lafarge Canada and Teamsters lnc 213; 1988 (How to determine primary site 65.3; 6)32Flying pickets:33Transferred Work Site s.65(4)(a)(b)33Ally Site 65.1,2,4b,633Liquor Distribution Branch and UAW and Hiram Walker 197833Common Site Picketing: 65.1, 4, 6,7 (defined s.65.1)34Sovereign General Insurance Co and Jim Dent Construc 1994:34Kelowna International Regatta Association 1986:34Separate Divisions of a Company in picketing: s.65.834Ellwood Properties: 2 considerations:35Picketing and the Charter: A form of expression engages 2.b of Charter **35RWDSU v Dolphin Delivery 1986 SCC35BCGEU v BC AG 1988 SCC35UFCW v Kmart 1999 SCC35Re: Sony Canada LTD 1999 (application of Kmart)35Pepsi Cola 2002 SCC36Overwaitea Food Group 200336Canadian Forest Products 200636Essential Services s.72 [schools and public services]37Compass Group Canada + Sodexho + Aramark and HEU 2009 ????37Re Central Heat Distribution Ltd 2007 (request for amendment to essential services designation) s.72.938DUTY OF FAIR REPRESENTATION s.1238Re: Judd 2003 BCLRB (what is arbitrary in DFR?)38Mervin Klaudt and BCGEU 199338Duty of Fair Rep: Contract Administration:38Grievance Procedure: s. 82, 84, 92, 9538Types of Grievances:39Re Pacific Forest Productions 1985 (time limits)39Arbitration process:39Rayonier Canada 1975 (decision rests with union to pursue griev)39Denial of arbitration:40Grievances in the Discipline Context:40William Scott Ltd and CFAW 197740Criteria for Assessing Penalty:40Steel Equipment Co 1964 (non-exhausive list)40Lifestyle Retirement Communities v BCGEU 200841Claims in Negligence:41DFR Procedure:42DFR and intermember disputes42Caddy v BCGEU 200642

2002 Changes:

Board has recognized that S.2 amended to encourage the economic goals of competitiveness and investment in every labour relations activity and decision

The Code now promotes economically viable businesses s.2((b)

The BC Coalition of Business says that the fostering economically viable business is a paramount goal of the BC gov.

BC Coalition of Business wants rights to decert to be as strong as rights to certify; reduce successorship rights; wants picketing definition enshrined in legislation; re-allow replacement workers

Amendments:

Restoring workers democratic right to a secret ballot vote on certification and ensuring the same rules apply for certification as decertification

Replacing the membership card-based system for certification with a mandatory secret ballot vote in all cases

Legislating employers right to free speech during certification drives

Restoring all workers right to negotiate contracts by outlawing sectoral bargaining

Adding a clause to the Purposes Section of the Code to ensure that continuing financial viability of a business is considered when Board decisions are rendered

S.2 is a statutory recognition of the need to find ways of enhancing productiveiy, competition and economic growth

Greater access of EEs to ER communication

Increased free speech protection for ERs during cert drives** s 8 right to communicate [ you can say whatever you want so long as you arent intimidating or coercion] [ I guess you can be annoying?]

This is bad for unions b/c the ER has the power to exercise this free speech anywhere and at anytime.

Coal BC Business wants it to be easier for an EE to complain about its union not following Duty of Fair Rep. s12

ERs communication critical of unions will not constitute unfair labour practice provide the messages were expressed as a view even during cert drives [Convergys]

Benefits of Unions:

More pay almost $7/hr more

88% get drug,vision,dental plans vs 68% others

large workplaces: 92% get pension plans vs 68; small is 47% vs 12%

women have higher wages in union than non-union

Values + Introduction

Relational contracts

Power who has it, and who uses it. Statutes alter the power balance

60-75% not unionized. QB most private sector at 45% (AB at 9%)

public sector unionization is highest QB almost 100% public unionized.

Common Law Regime

evolution of the master/service concept; feudal era contracts were mapped onto market place contract

presumes EE/ER equal power