Employment Legislation

- Contracts within a legislative framework - Labour: can not contract out of employment statutes

o Exceptions: temporary lay offs

1. Employment Standards Code - settlement dispute- minimum standards2. Labour Relations Code- Process for e/ees to elect to associate and bargain collectively3. Alberta Human Rights Act- Discrimination permitted if for a bona fide occupational requirement

o rationally connected to jobo adopted in honest good faith beliefo reasonably necessary for legit work related purposeo impossible to accommodate w/o undue hardship

4. Occupational Health and Safety Act- Obligations for Employees and Employers and substantive rights5. Personal Information Protection Act- RE: collection, use, disclosure of personal info- General rule: consent is required- Exceptions: employment relationship, reasonable disclosure, notification- Applies to surveillance and discipline

1 Historical Overview

Limitations of Non Union Employment - Unequal bargaining power, means to litigate- Limited mechanisms for dispute resolution and protection - No right to reinstatement for wrongful dismissal (damages only)- No meaningful consideration of seniority

Torts engaged by union activity:- Enducing breach of contract, Trespass,

Heath Services and Support – Facilities Subsector Bargain. Assn v BC 2007 SCC

Facts: Legislation invalidated existing CA and affected ability to bargain in certain areas- s. 10 invalidates any CA that did not comply with the statute - removed various topics from CA bargainingIssue: Unions claim s. 2 (association) and s. 15 (Equality) Charter claims

Held: No s. 15 breach as adverse affect based on type of work not type of personHeld: Some provisions breach s. 2(d) Freedom of Association

S 2(d) Charter includes procedural right to collective bargaining- Does not protect all aspects of collective bargaining

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- Only protects against substantial interference with associational activity

Test: What constitutes “substantial interference” – capacity to bargain collectively1. The importance of the matter affected to the process of collective bargaining 2. Manner in which the measure impacts on collective right to good faith negotiation and

consultation- If changes substantially touch on collective bargaining they must preserve a process of

consultation and good faith negotiation- Both are required: important matter and a violation of duty of good faith negotiations

combined will constitute a breach

s. 1 justification?- Pressing and substantial objective, rationally connected, minimal impairment, proportionate

effects

Development of Labour Relations Law eras: - Labour movement grew with industrial revolution

1. Repression:- Law used as a tool to limit workers rights to unionize- Criminal sanctions for union related activities (particularly striking)- Common law: doctrine of criminal conspiracy – agreement whereby employee refuses to

work except at stipulated rateEnglish Combinations Act: - 1799/1800 criminal offence to be a member of a union, call a strike or contribute $ for union - 1825 no longer a crime for unions to negotiate wages/hours BUT offence to induce

employees to join or strike and no obligation to recognize unions

2. Toleration:- 1872 Toronto Typographical Union Strike – criminal conspiracy charges laid- Lead to Trade Union Act 1872- Common law principles still employed to restrain union activities- No worker could be criminally prosecuted for conspiracy for attempts to increase wages,

decrease hours of work or improve working conditions- Torts were still used to limit strike activity- No legislative obligation to recognize unions and no protection for employees who engaged

in union activities- Large number of strikes mostly bc of refusal to recognize unions

3. Recognition:In 1935 US Wagner Act: goals: - Industrial peace: methods for resolving disputes to avoid damage to economy and resulting

political turmoil and violence- Remedy under consumption - increase earnings/purchasing powers of worker to promote

economic recovery and prevent future depression- Collective bargaining and balanced bargaining power (actual freedom of contract)- Redress unequal bargaining power - Free choice: individuals have the freedom to organize and choose their representatives- Industrial Democracy – promote a democratic workplace and create a sense of worth and

participation

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Canada:- 1930’s Wagner Act principles adopted in Canada (provincially and federally)- Initially only applied to private sector but expanded to public in 1965 to 1973

Wagner Act: main components - Entrenched right to belong to union - Prohibited unfair labour practices (coercion/intimidation by employers)- Impose duty to bargain in good faith w/ unions- Established Board – to investigate unfair labour practices, supervise certification votes

(removed labour law jurisdiction from courts)

Charter- Collective bargaining protected under s. 2(d) freedom of association- collective bargaining is a fundamental freedom (Sask Fed. of Labour SCC 2015)

o Recognizes the right to strikeo Represents a new era of labour relations law

International law- Can be used to interpret Charter- International Covenant on Civil and Political Rights AND International Covenant on

Economic, Social and Cultural Rights AND Convention concerning Freedom of Association and Protection of the Right to Organize

Principles of Canadian Labour Legislation

- Freedom of Association (right to belong to a union)- Union recognition- Compulsory bargaining rights for certified trade unions- Postponement of right to strike until after government intervention - Prohibition of unfair labour practices - Establishment of legal status and enforceability of CA- Provisions for resolving disputes w/o resorting to strikes- Regulatory bodies w/ investigative and control powers over labour relations

2 Trade Unions and Employers’ Organizations

Definitions:- Trade Union: organization of employees with a written constitution, rules or bylaws and

objective the regulation of relations between employers and employees - Collective agreement: written agreement between employer and bargaining agent containing

terms and conditions of employment

Unions General Structure:- International/National/Provincial: high level policy issues- Local (trade unions for the purpose of the Code): daily issues, bargaining rightsStatus of the Union:- unincorporated association- recognized under AB Labour Relations Act

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- Can be liable for torts, statute breaches, criminal sanctions (s.25)

Employee associations - may not be readily recognizable as a Union- Can be created and recognized by the employer to avoid aggressive trade union

Employer Organizations - Group of employers who form organization to collectively bargain - Important in context of construction industry – registration

o Mandated for some industrieso Used to regulate wages

- Legal entity w/ associated liabilities and rights

Labour Relations Code

Employee rights (21(1)):- To be a member and to participate- To bargain collectively with employer through bargaining- Qualified right: e/ees can be removed for failure to pay dues or misconduct/breach of bylaws

Prohibited practices by trade union (151)- Ex. can’t expel employee for failing to perform an act CONTRARY to this act

Suspension/expulsion from union (26)- Failure to pay dues OR- Written notice of charges served on employee, reasonable time to prepare defence, full and

fair hearing w/ counsel AND found guilty of charge

Trade Unions Rules- Filing requirements (24): constitution, info of officers (ex. president, secretary) who are

authorized to sign collective agreements, update as needed - Union as a legal entity (25): can prosecute/be prosecuted, sue/be sued- Restraint of trade allowed to extent they are necessary to carry out duties under the Act- Union dues (27): employee may authorize employer to deduct union dues

o Exception to employment standards code that does not authorize deductions without authorize

- employees REQUIRED to be union members (29)o Board discretion to give religious exemptionso The exempt are still required to pay dues but they go to charity

Types of Union Security Arrangements:1. Union shop - current and future e/ees must join union w/in specified time after they are hired - must remain as a member in good standing as a condition of continued employment- Dues are obligatory- Employer has right to decide who they hire2. Closed shop - Person must be a member of the union before being hired by the employer- Must remain a member in good standing as a condition of employment

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- Dues are obligatory, access to union jobs, pensions provided- Usual in construction or maintenance industry (trades work)3. Agency shop (AKA Rand Formula)- Membership is not required- Non members must pay the union an amount equal to dues paid by members- Legislated in some areas4. Maintenance of membership- New employees not required to join- Existing members must maintain membership and pay dues as condition of employment5. Dues check off - S. 27 provides for compulsory deduction of union dues upon written authorization of the

employee (subject to religious objection)- Uncommon

Legal status of Unions:- Historically: treated as unincorporated associations - Not legal persons- Uncertainty exists as to whether a trade union can be sued for reasons other than a breach of

the Code- Unions legal entity status “for the purpose” of the code (25)

Maritime Employers Assoc SCC 1979 Facts: Harbour Police strike. Stevedores refuse to cross picket line (illegal strike)- Court issued an injunction- Union appealed - argued that an injunction can’t be issued against an unincorporated trade

union:Held: unions are legal entities capable of being subject to an injunction- Legal entity for certain purposes- Given rights and obligations by statute that natural persons do not possess that can only be

employed by a legal entity- Ex. Right to: merge, be party to agreement, legal obligations re: strikes, can bring complaints

against an employer

Criminal Liability of Trade UnionsUnited Nurses of Alberta 1992 SCC Facts: Nurses went on strike contrary to directives filed in QB court. Union found in criminal contempt and fined.

Issues:1. Whether union had status to be found guilty of a criminal offence ex. criminal contempt (yes)- Union is an unincorporated association - Relied upon Maritime Employer that unions can be sued for breach of statute- Along with status for collective bargaining purposes – unions have corresponding obligations- If unions act unlawfully the court can impose all remedies available- Historically common law denied unions legal status to limit enforcement of collective

agreements but this no longer appliesCriminal contempt- Common law offence (not codified) includes element of public defiance- Proof beyond a reasonable doubt- (AR) disobey court order in a public manner

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- (MR) W/ intent, knowledge or recklessness as to the fact that act will depreciate authority of the court

2. Whether a directive of a prov board filed in court could give rise to criminal contempt (yes)- does not create a criminal law (federal jurisdiction) but it does engage itDissent: concern regarding effect of decision on union activity

Personal Liability of MembersBerry v Pulley 2002 SCC

Facts: Merger of Unions would trigger an integration of seniority lists. Air Canada pilots objected and formed their own union. Appellants (union members) sued Air Canada pilots personally in tort: conspiracy, interference w/ economic relations and contractual relations (summary judgment - allowed) and for breach of contract (summary judgment – dismissed).

Issue: whether a union member may be personally liable to other members in a breach of contract action based on the terms of the union constitution

- Historically union members were seen as bound by a web of contracts- Eventually recognition obtained for legal status of trade unions replaced web theory- Each union member has a contractual relationship with the union regulated by statutory

labour relations regime

Held: there is no individual liability of a union member to another union member for breach of contract/constitution (only to the union itself as it is now recognized a legal entity)Principles1. Unions can enter into membership contracts directly with each of their members2. Terms of these contracts are shaped by the union constitution and statute3. Union members have no contractual obligation to other members4. Union members can be liable in tort to other union members

Fullowka 2010 SCC Facts: During a strike workers set off bombs killing 9. - Other issues: Pinterton and Royal Oak owed a duty of care but had met that duty

Issue: whether the national union and local union are a single and entity and therefore the national union can be liable for the actions of members of the local union? (NO)

Status of the Union- Local and National Unions can be the same or separate entities- Local and National Union are separate legal entities in this case

o Local Union was a legal entity capable of being suedo Local was a certified bargaining agent for workers at the relevant timeo Is a separate legal entity from national union as per Canada Labour Code,

constitutional arrangements between local and national and terms of mergero National union not liable for debts and obligations of the localo Locals have bargaining power, own executive, decision making structures, enter into

contracts enforceable against them, can own propertyo Merger documents clearly identified the unions as separate

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- Depends on: statutory framework, collective bargaining agreement, constitution of the unions, merger documents (if exist)

- National Union did not control local union (based on facts of case)

Issue: Vicarious liability:- National has no vicarious liable for the actions of the members

o Relationship was not sufficiently close (no control)Ratio: Unions are not automatically vicariously liable for torts of members (depends on control)- If act is done at the request of the union OR occurred during the discharge of an assignment

given to them by the union then liability will follow

- Distinguishing union liability from employer liability:o Union does not choose memberso Contract is different (union does not negotiate terms w/members)o Union members have a democratic right and can voice concerns regarding the

executive of the unionso Higher standard to find unions vicariously liable

Vicarious liability test:1. Is the issue unambiguously determined by precedents (if No go to 2 part test)2. Was the relationship between tort feasor and defendant sufficiently close - Members are not employees, servants or agents of the union- Members have unqualified right to speak out against bargaining agent- Relationship is contractual but limited by statute- Unions do not control who becomes a member3. Was the wrongful act sufficiently connected to the conduct authorized by the defendant

Issue: Joint Liability- Indirect liability for tort of another where the defendant incites the other person to commit a

tort- Liability if act was furtherance of a common designAnalysis- Union can’t be liable simply for taking strike action and picketing - No common design (murder)- Consider: whether union is liable for inciting mass murder (NO)

Practice point: - Merger occurred between the time of the loss and the Trial (local and national)- Plaintiff lawyer: fails to sue the new local and is time barred from doing so

3 Federal VS Provincial Jurisdiction

Federally Regulated- 10% Federal Regulated and governed by Canadian Labour Code- S. 4(2) AB Labour Code does not apply to employees covered by other statute- Some businesses can be subject to both provincial and federal regulation- Board will generally err in favour of having jurisdiction unless it does not further a labour

purpose

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Canada Labour Code- includes: employment standards, occupational health and safety and labour relations code- S 2 Federal work, undertaking or business (not exhaustive):

o Navigation and shippingo Interprovincial: rail, canal, telegrapho Interprovincial shippingo Interprovincial/international ferryo Aerodromes, aircrafto Radioo Bankso Anything declared by Parliament to be general advantage of 2+ provinceso Anything outside exclusive provincial jurisdiction

1. What is the jurisdiction: provincial or Federal- Consider s. 91 and s. 92 Constitution Act- Jurisdictional issues can be tactical depending on which legislation allows for more

favourable outcomeo Ex. company that operates across the country – union may want a single bargaining

unit

Tessier v Quebec 2012 SCC - Tessier is a heavy duty rental and operating company. - All activities were within Quebec. - Their employees/equipment also perform stevedore services (Port). - Tessier sought a declaration of Federal jurisdiction (shipping)

o To avoid higher cost of premiums for provincial Occupational Health and Safety Held: Provincial regulation applied. - BC the majority of work was provincially regulated activities - the stevedore’s activities were integrated with overall operations - Stevedores constituted a minor part of the operation (20% of wages, 14% of work).

Law: Labour relations is presumptively a provincial matter - property and civil rights s. 92(13) CA (Toronto Electric Commiss 1925)

Federal jurisdiction in two circumstances1. Direct: Employment relates to work, undertaking or business within authority of Parliament 2. Derivative Jurisdiction: Employment is an integral part of a federally regulated undertaking - Historically stevedoring was found to be a derivative jurisdiction (not direct jurisdiction)

Derivative - Functional test:- Dominant nature of work is assessed to determine if it is integral to a federal undertaking- Analysis: relationship between activity, the employees, federal operation said to benefit from

work of the employees - is the performance dependent on the services- exceptional aspects of an enterprise do not determine its ongoing character

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Federal regulation justified if:- Undertaking form principal part of the related work activities AND- Services are performed by employees who constitute a discrete unit

Northern Air Solutions v UFCW 2015 Canada Industrial Relations BoardFacts: Northern Air offers both charter and ambulance services. - UFCW applies for federal certification.- Employer: argues air ambulances are a distinct business and paramedics are subject to

provincial regulation (health care)o Concedes charter service is federal under POGG power

- Union: argues air ambulance is an interprovincial airline businessHeld: Federal jurisdiction- Unique character is transportation of patients by plane (air transport)- Federal jurisdiction over aircraft and air transport- BUT for the air transport the company would not be in business

Functional test:- Presumptively provincial jurisdiction- Is it a federal undertaking:

o Nature of operation with focus on habitual activities as opposed to exceptional/casual activities

o Focus on enterprises essential operationo Whether operation is a single indivisible integrated undertaking

(if Yes: then it is federal jurisdiction. If No consider)- Whether provincial regulation impairs core of federal jurisdiction

Federal jurisdictions:- Core federal undertaking- Operates in common w/ another core, federal undertaking as a single, indivisible, functionally

integrated unit- Entities activities are vital, essential or integral to core federal undertaking

West Coast Energy v Canada National Energy Board- Functionally integrated: subject to similar management control and direction- Close commercial relationship does not suffice- physical connection does not suffice

United Nurses of AB v Blood Tribe 2011 AB Facts: Certification Application. E/ees voted in favour. - E/er argued LRB no jurisdiction bc operations were federally regulated.In favour of federal jurisdiction: federal funding, band council has bylaw making power re: health, principle service for Indians

Issue: Jurisdictional issue: whether labour relations in health services on a reserve is provincial or federal jurisdiction (Held: Provincial)- Health care is provincial jurisdiction- Provincial laws of general application apply on a reserve (including labour laws)- s 91(24) CA – SCC held Federal power over rights and status of Indians to be construed

narrowly- Health care is primary focus (Aboriginal status of employees or clients is irrelevant)9

- Presumption of Provincial Jurisdiction (rebuttable through functional test)SCC in Native Child: it is WHAT you do not how or to whom (services to Abor. not automatically Federal Jurisdiction)

- Functional test: examine nature, operation and habitual activities of the entity to determine whether it is a federal work, undertaking or business

- Only if a functional test is inconclusive: go to determination of whether prov jurisdiction would impair CORE of federal head of power

NHLPA v NHLIssue: NHL argued board has no jurisdiction because parties had agreed to national agreements under the US Federal jurisdiction. Board should decline jurisdiction for policy reasons.

- Jurisdiction a tactical matter - NHL lock out out employees- NHLPA wanted Alberta LRB to assert jurisdiction to declare lockout illegal and a cease and

desist order- In previous suit the parties had taken opposite approaches: NHLPA claimed no provincial

jurisdictionHeld: provincial board decides not to exercise jurisdiction- Does not bar future jurisdiction decisions- Did not want to interfere w/ existing system and remove Alberta teams out of the larger

national system

4 Labour Relations Board

- Independent quasi-judicial body w/ Adjudicator role NO prosecutorial role- Created by statute- Primarily deal w/

o Certification/revocation of union certificateo Determining membershipo Regulation of bargaining (ex. negotiating CA)o Regulation of unions activities

- Admin: requires procedural justice/natural justice, neutrality- Independent of government affairs- Specialized with a view to advancing labour policy- Decisions are not strictly binding on future decisions- Relations: importance of relationship e/er and e/ee

o Board ongoing interest in mediation and dispute resolution

Jurisdiction: - Administers: Labour Relations Code, Public Service Employee Relations Act and Police

officers Collective Bargaining Act- Certification of unions- Modification/cancellation of collective bargaining rights- Unfair labour practice complaints- Some factual issues: ex. whether a person is included in a bargaining unit- Can decide constitutional issues (provided by statute)Not in its jurisdiction:

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- Mediation, non unionized workers, employment standards, wrongful dismissal, work place conflict or grievances (unless they are breaching the code: ex. dismissal for union activities)

- AB jurisdiction: do not hear appeals from arbitrator – do in other jurisdictionso Can assist to expedite the arbitration process

Does not apply to e/ee or e/ers covered by the following statutes:- Public Service E/ee Relations Act or those covered by another act

o Gov’t of AB, Post Secondary faculty- Police Act except as applicable to PO collective bargaining act- Livestock Industry Diversification Act (exclusion has been repealed but the repealing section

is not yet in force – not yet proclaimed)- Domestic work in private dwelling- Professionals as governed by a professional regulatory statute (lawyers)

Structure: 1. Adjudicative Section: - chair and vice chairs (neutrals)- board members from union side - board member from management side- board members are not necessarily lawyers (must adjudicate w/ open mind)- Three sitting (neutral and one from each side)2. Administrative Section:- Head by director of settlement, manager of settlement- Board Officers – handle file until date of hearing (scheduling, informal settlement attempts)

Process: - Statutory tribunal: authority only as per statute (La Roy)- No inherent jurisdiction- Commenced w/ application- Not bound by rules of evidence

o Can argue the exclusion based on the principles underlying the rules of evidence- Urgent applications: illegal strikes, illegal lockouts, violence on picket lines

Remedies and Costs

Resolution conference- Usually mandated- If resolution is not made then case management issues are addressed

Remedial powers: - Remedy: rectify the situation and put the party in the position they would have been had there

been no violation of the statute- No punitive damages awarded and rarely awards non pecuniary damages- Rectify breaches of the Code- Remedies as appropriate- S. 17(2) can’t certify a union or revoke a union w/out confirming a employee vote

Principles guiding remedies:- Must relate to the complaint- Appropriate to a continuing relationship11

- Restorative NOT punitive- Damages must be reasonably foreseeable- Remedies MAY consider deterrence as a secondary consideration

Types of Remedies:- Directives: ex. cases and desist orders for illegal strikes or lockouts- Interim directives: - Posting/mailing decisions and notices

o Will not force apologies (appears punitive and will be insincere)- Reinstatement – to employment, to union- Compensation- Rescission of disciplinary action- Relocation orders: when an employer shuts down to evade a union then board can order

relocation of employees- Extending grievance timelines

Mitigation of loss- Complainant must prove damages- Respondent must show e/ees failure to mitigate

Costs- Board cautious re: awarding costs- Punitive, adversarial connotations- Generally limited to trivial or abusive complaints

Bound by Statute:LA ROY v ATA 2015 ALRB Facts: Roy applied to be exempt from membership and dues based on religious beliefs. HELD: Board does not have jurisdiction to provide exemption as membership is mandated by the Teaching Profession Act- Board has no jurisdiction to exempt ROY from membership obligations set out in statute- Courts have the jurisdiction re: Charter arguments of a statuteClass:Teachers union: is a union and a professional regulatory body- Act has since been amended to allow for an exemption

Dunsmuir v NB 2008 SCC Facts: D was dismissed. D grieved bc no reasons given and no opportunity to respond. Allege lack of notice, due process or procedural fairness- Judicial review:

o Correctness standard: reviewing court will not show deference to reasoning process and will undertake its own analysis

o Reasonableness inquiries: analysis of the qualities that make a decision reasonable (justification, transparency and intelligibility)

- Standard of review: consider jurisprudence, legislature’s intent, question of fact or law, expertise of decision maker

Factors that suggest deference/reasonableness test:- Privative clause: statutory direction to give deference- Discrete/Special administrative regime with special expertise- Question of fact or law (not of central importance to the legal system)12

Correctness standard:- Constitutional questions regarding division of powers- Jurisdictional inquiries- General law issues

Procedural Fairness:- E/ee is bound by contract (not a union member)- If decision to terminate is w/in public authorities powers and is taken pursuant to an

employment contract – there is no public law purpose for imposing a duty of fairnessRatio: judicial review should focus on substance, nature of the issueJudicial review: Highly defferntial to board decisions bc of expertise

Construction Labour Relations 2012 SCC - Facts: AB Labour Relations Board dismissed an application for judicial review. - Held: Board decision was reasonable and entitled to deference- CA erroneously held that the Board did not give proper consideration to interplay of statute

provisionso This is not requiredo Board is not required to address every issue raised by the parties

Essential Services (ES)- If interrupted would endanger life, personal safety or health of public OR- Necessary to the maintenance and administration of the rule of law or public security

Who is an essential service:- Certain public sector, public post secondary non academic staff, health services

o They require essential service agreement- No Strike Model: Fire, some ambulance drivers, Police

o Strikes/lockouts are prohibited o They may apply for compulsory arbitration

Essential service agreement: Negotiation Model- Required before taking strike or lockout action- e/er and union negotiate the agreement- Umpire can be used to assist- Ensures sufficient e/ees would continue to workFiled ES agreement required before (unless exemption granted):- Appointment of a mediator to assist w/ collective bargaining- Strikes/lockoutsRequired content:- Identifying essential services to be maintained during strike or lockout- Classification of ES e/ee, methods of assignments during work stoppage, flexibility,

identifying umpires, notification process

Declaration of Substantial Interference- ES agreement will not be accepted/filed by Commissioner if it would substantially interfere

w/ meaningful collective bargaining- May arise in following circumstances1. Commissioner refuses to accept agreement for filing

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- No acceptable agreement can be made2. Commissioner unable to settle terms of a ES agreement3. Significant change in circumstances application- During a work stoppage

Issues that were addressed in response to historical conflicts:- Does not allow for replacement workersUnaddressed issue:- Does not allow for the use of other workers from different unions (ex. LPN’s doing RN work)

for required work

Saskatchewan Federation of Labour v Saskatchewan 2015 SCC

Facts: Sask introduced 1. Public Service Essential Services Act – limited ability of public sector e/ees who perform essential services to strike. No meaningful mechanism for resolving bargaining impasses was provided.

Held: Act violates s. 2(d) and is not justified under s. 1. UNCONSTITUTIOAL- Workers can not achieve goals w/out effective bargaining mechanisms or right to strike- Right to strike and to bargain collectively is protected by s. 2(d) Charter- Test: whether the legislative interference w/ right to strike in a particular case amounts to a

substantial interference w/ meaningful collective bargaining- Maintenance of essential services IS a pressing and substantial objective- BUT: means chosen by Sask are not minimally impairing

o e/er given unilateral authority to dictate serviceso no meaningful review of these decisionso Did not tailor duties to ONLY essential worko no meaningful alternative mechanism for resolving impasses

Held: applied to too broad of a scope of e/ees- essential services: defined by international convention- protection of life and maintenance of order

Dissent: s. 2(d) does not protect the right to strike (it is a statutory right)Types of approaches to ES striking1. Unfettered (AB: private sector) – default model2. No strike (AB: police, fire, ems, hospitals) – must include a system of facilitating collective

bargaining (ex. binding arbitration)3. Designation/controlled strike (AB: public sector workers – child welfare, corrections)4. Ad hoc – legislation to end strike or imposing collective agreements

S. 2(d) Charter: Freedom of Association and Collective Bargaining

1987 – AB adopted no strike model for regulating public sector e/ee- Individual right to join and have a union are constitutionally protected- Strike and collective bargaining are NOT constitutionally protected- Gov’t: imposed binding arbitration, dictates which union would represent e/ee, refused

RCMP unionFarm Unions:

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- Historically no unionizing for domestic of farm workers bc did not want unions in homes or small family farms.

- ON gov’t repealed statute allowing farm workers to unionize. - SCC held: Statute prohibiting association was unconstitutional (Dunmore v Ontario 2001)

Health Services Support Workers vs BC 2007 SCC Facts: attempt to restructure health care. Reduce services and privatization. Introducing statute stripped ability to bargain and existing collective agreements of existing provisions that conflicted w/ new government agenda. Held: struck down as substantially interfering w/ ability to collectively bargainRatio: Right to collectively bargain is constitutionally protected

Fraser v ON 2011 SCC - Facts: statute permitted farm worker unions w/ minimal rights

o e/ee right to make representations and e/er consider them in good faith- No method of enforcement of union rights. Held: upheld legislation bc law did not make it impossible to unionize- Collective bargaining is constitutionally protected (Health Services Support)- BUT: only protects association right – doesn’t dictate a particular result or process

RCMP Association Ontario v Canada 2015 SCC Facts: Method of collective bargaining that was skewed in favour of e/er. Held: process of collective bargaining was not meaningful: no independence of management, no effective bargaining, no meaningful input into collective goals- Overturned Fraser contention that statute had to make it IMPOSSIBLE to unionize

5 Who is an Employee

Code does not apply to following e/ee or e/ers (4)- As defined by Public Service E/ee Relations Act (Prov Gov’t)- Covered by another Act

o Police Officers – as per Police Act except to extent it is made applicable by the Police Officers Collective Bargaining Act

- Agricultural workers (repealed by not yet in force)- E/ees in private dwelling

Public Service E/ee Relations Act related to e/er - designated by Act of Legislature OR- Appointed by government- Ex. Hospitals

Definitions - Employer: person who customarily or actually employs an employee- Employee: work in receipt of or entitled to receive wages

o Does not include: Managers and Professionals

Exceptions:

1. Professionals

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- Medical, dental, architectural, engineering, legal professions and nurse practitioner are excluded as e/ees when working in their professional capacity

Exclusion operates if three conditions are met:1. members in profession under the governing body2. must qualify under AB law to practice their profession3. must be employed in their professional capacity

2. Managers- to avoid conflict of interest- prevent union access to certain information- decisions may make decisions adverse to union members (discipline)- Decided on case by case basis- Code does not define term

Consider Conforce Products factors: - right to hire/fire on own initiative- direct workforce,- grants time off - determine wage increases and promotions- participate in grievance procedure- discipline e/ee- power of independent discretion- control over performance appraisals- administer collective agreement- participate in policy decisions- participate in budget preparation- Consider: nature of industry, size of institution, particular employer organization- Differentiate between experience and management- Managers are involved in policy matters: - Whether they exercise independent decision making responsibilities that impact the

employment relationship

Prime Function Test: - titles not determinative- fact based analysis- amount of time spent management activities1. Managers duties involve labour relations activities: information handling or strategy2. Involvement w/ this information is on a regular basis3. Disclosure of this information would adversely affect the employer

Manager ExclusionRe Central Park Lodges 1996 AB LRBR Issue: whether newly created position of nurse managers were e/ee in bargaining unit or exempt as managers

Held: they are e/ee- Consider global role not just whether indicia of management are present- Management functions were peripheral and incidental aspects of the job- E/er dispersed managerial functions among numerous personsPrimary function: patient care at a higher level

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- Primary duty was not management of other e/ee

Sprinkling: - e/ers gain undue numbers of exclusions from a bargaining unit by taking factors which the

board has found to be indicia of managerial status and distributing them broadly- Bad faith sprinkling will not be permitted- Requires legitimate rationalization

Analysis: - Ability to fire: unlikely it would happen often - Ability to hire: team approach, involvement varied between individuals- Performance appraisals: not much subjective consideration (inconsistent w/ other rulings)

- Discipline: Nurses minor disciplines- Grievance process: participated in step 1- Court inferred sprinkling as nurses had no training or understanding

ATU – Local 569Issue: classification of Edmonton Transit as e/ees- City argued: managerial and confidential capacity exclusions

Confidential information exclusion: - Access to information relating to: contract negotiations, board hearings, grievances- Access to this information is part of employee’s regular duties (not incidental)- Litmus test: disclosure of information would have adverse impact on employer’s interest from

an industrial relations standpoint

Types of confidential information- Competitive information/trade secrets (N/A)- Personnel information (payroll etc)- Labour relations – contract negotiations, bargaining strategy

Employees:1. Scheduling: e/ee- Spends 3% of time costing out proposal for scheduling changes for collective bargaining

purposes 2. Senior Dispatcher: e/ee- Supervise, evaluate, assign shifts- Act as part of a team: interview and hire- Minor part of job: discipline, hiring, firing

Not Employees3. Safety officer: NOT e/ee- investigate accidents and evaluate operators- Recommendations accepted 50% of time- Could result in discipline4. Service and LRT Inspectors: NOT e/ee- Incident reports may affect operators

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- 50 performance appraisals per year- Recommendations accepted 98% of time (effective recommendation)

Contractor exceptionSagaz Industries 2001 SCC 1. Determining: E/ee or ContractorContractor factors (not exhaustive)- Control: operational control - Ownership of equipment- Ability to hire helpers- Degree of financial risk- Responsibility for investment and management- Opportunity for profit

Midwest Pipeline 1990 AB LRB Certification Application: rig welders- incorporated (sole proprietor) and unincorporated- Officer held: incorporated rig welders were not included bc a corporation can not be an e/eeHeld: Both: e/ee- owning own tools did not suffice to make them contractors- incorporated welders: corp is just a vessel not actually i/c of renumeration- Code can’t apply to corporations but MAY apply to sole proprietors

- Hired w/out bidding, used own equipment, no requirement of proof of bonding or insurance, hourly rate, e/er provided materials, no holdbacks in case of poor work, only paid if worked, no ability to subcontract

- E/er: hired, fired, hired helpers, set work hours, directed work and established rules, disciplined, operational control

Montreal Locomotive factorso Control, ownership of tools, chance of profit, risk of loss

Adams factors: E/er- Direction and control- Burden of remuneration- Hiring - Imposing discipline- Dismiss- Perceived as e/er- Intention to create e/er relationship

Associated Cab (AB) LtdHeld: Independent Contractors – drivers who own their own limos

- Owner/operators earn income: own customers, que at airport (under CO authority, dispatch (by CO)

In favour of them as contractors:- Remuneration: company tallies bills, credit card slips put toward bills

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- Accepted cash w/out having to report- Decided own schedule – limited operational control- Maintain own vehicle- No deductions to pay, no benefits, no WCB coverage- Rules as per contract w/ airport and bylaws – not company policies- Discipline: re attire but violations enforced by airport (no evidence discipline occurred)- Separate advertising- No written agreement- Own equipment- Chance of profit/risk of lossIn favour of them as e/ee- Required an affiliation with company to access the airport

Airport Taxi Service ABQB Held: taxi drivers were e/ees- Wages can be paid by third party- Distinguished on numerous grounds: discipline, e/er controlled airport queue, drivers did not

own, max fees set by e/er

7 Certification

Methods1. “Organized” a campaign to become certified bargaining agent for either:

o a previously non-unionized workplace o A workplace where the employees are represented by another union

“raid” – an attempt induce a union switch (subject to the provisions and limitations in the Code)

2. Voluntary employer recognition- Before legislative certification process this was the only option for unions - Voluntary recognition motives:

o may bc of good working relationship with uniono CLACK: employer friendly union

Organizing Campaign- Usually secret- Sign union membership cards or petition in support of Union- Cannot campaign at employer’s place of employment during normal hours of work: Section

151(d)o Some exceptions applyo E/ee can only organize during work breaks

- Focus: employees choose whether and by whom they are represented

What Can an Employer Do? - LRC prohibits e/ers from interfering with employees’ choice of bargaining agent19

- S. 148 prohibits an employer from interfering with the formation, administration, or the representation of employees by a trade union

- Express views as long as there is no: coercion, intimidation, threats, promises, or undue influence (ex. I’ll shut down the plant = threat)

- Can prevent union organizers from accessing the employer’s property (trespass act)o BUT e/er can’t discriminate against the union: ex. prohibit union reps from a public

accessible work place

What Can an Employer Say? Can express views but no threats, promises, undue influence- Nothing: conservative approach and minimizes the risk of unfair labour practice complaints

(which may be used as a “rallying point”) - Should designate “front line” managers/supervisors to communicate on behalf of employer

within certain parameters - May communicate in writing or verbally (preference for in writing)- “captive audience” – i.e. on company time, on company premises, where staff “forced” to

listen to employer’s representations (intimidation factor)- Ensure accurate, complete information available to e/ee about union - Provide employer’s viewpoint about disadvantages of belonging to a union but must avoid

conduct that amounts to offering promises, threats, intimidation, or misleading information as an inducement to resist a Union

- May rebut inaccurate information about company put forth by the Union • Employees must vote for the vote to count – vote is tallied out of # of actual voters/not

potential voters • Union’s promises during its organizing campaign require e/er agreement• “third party” – will create a third party involved in communications between e/er and e/ee• Union dues or obligations of union membership

Employers May Not: - Tell employees that there’s “no second chance” – there are revocation provisions - Make negative statements about collective bargaining- Suggest union motivated by profit- Circulation of any anti-union material that is facilitated/supported by management (i.e.

photocopier, etc.), or facilitating/assisting a meeting of this nature to take place - Offer rides to representation vote for a “no” vote- Asking employees whether or not they have signed a union membership card- Suggest that terms and conditions of employment would improve without union

Confidentiality - The privacy of e/ee re: application is protected - Board NOT required to divulge information RE: person’s union affiliation 14(6) - Certification vote is a secret ballot - E/er can’t ask e/ee about how he voted (unfair labour practice)

Certification Application:- Union determines it has sufficient support- Application submitted - Investigation, hearing, vote (ASAP)

Board role: Supervise certification process

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Step 1: application- Require evidence that 40% e/ee support from proposed bargaining unit

o Evidence: membership OR petition (one or the other)o Membership: member in good standing OR application w/ fee paido Considered at the time of the application o Petition (w/in 90 days of application)

- Subject to time limits: o S. 37(1) Constitutional documents 60 days prior to applicationo S. 57: 90 day wait between applications (withdrawn or denied)

- Raid: s. 37(2) If a bargaining unit already exists or a CA is in place there are certain times when a union can apply for certification

Statutory Freeze – s. 147 - Upon notice of application: e/er is prohibited from changing the rate of pay, rights or

privileges the terms and conditions of employment - from date of application and: date or refusal OR 30 days after certification- with certain exceptions:

o Established custom or practice o Consent of union o In accordance with collective agreement (if one is in effect)

Step 2: processing applications- Board officer assigned, parties notified, notice posted in workplace- Board Officer investigates and makes a report- Hearing scheduled – held if there are any objections to report- If no objections: Chair reviews report

o Any changes made by Chair if there is an objection to the change: Application for reconsideration Can apply for judicial review

Step 3: Vote - S. 58(1) majority vote of e/ees- Board deems who is an e/ee

Step 4: Certification

Certification Requirements s. 34(1)

Board Officer will investigate to determine whether:a. Applicant is trade unionb. Application is timelyc. Appropriate unitd. E/ees in unit voted w/ 40% support- Support is not a result of e/er interference in process:

o Union e/er dominated, picketing @ workplace etc.

1. Applicant is trade union

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an organization of employees that has a written constitution, rules or bylaws and has as one of its objects the regulation of relations between employers and employees

2. Application is TimelyRationale for Timeliness Limitations- Protect union from being raided at certain vulnerable times - Protect employer from “repeat attacks”

Limit raids to certain timeframes so that unions can focus on their main objectives and aren’t always on “defensive”

Gives the parties “breathing room” during bargaining Gives employer “recovery period” after unsuccessful application

No application for certification shall be made without Board consent: - Until 60 days after submission of union documentation- During strike or lockout in effect

Manalta Coal – E/ee application to revoke certification during a strike- Board refused revocation w/out good evidence that majority want to revoke- Also requires evidence of NO undue pressure

Certification application periods (37)- No CA or No certification – certification can be made at any time (general rule) - Certification but no CA: can apply 10 months from certification date (“grace period” to reach

CA) - Court reviewed and did not quash certification: can apply 10 months after court decision - if CA for 2 years or less is in force, certification application can be made only during 2

months preceding end of the CA- 2 + year CA in force: application can be made within 11th or 12th month of the second or

subsequent year BUT more than 10 months before the end - within 2 months immediately prior to the end of the term (regardless of how long the CA is)

Additional Timeliness Considerations

Refusal or Withdraw 57- Can’t reapply for 90 days after: board refusal OR withdraw of application- to prevent repetitive certification applications that have little chance of success - protects both employers and unions, in context of “raid”

Revocation 54(2)(c)- If certification has been revoked through decertification vote - THAT Union cannot apply for certification over same or substantially same unit with same

employer until at least 6 months have passed

Repeat applicationsSteelworkers v. Handleman 1988 AB LRBR - United Steelworkers (Local 6034) applied for certification and the Board refused to certify it. - One month later, a second local (Local 7226) applied for certification of same group of

employees

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- Employer argued that Board’s consent was necessary under s. 57 as 90-day period had not yet expired since first unsuccessful application

Held: for union- Locals were separate legal entities (Fulowka – separate legal entity) - Time limit on certification applications applies to applications by the same union- Absent “mischief” applications by different locals of same union not subject to 90-day

prohibition

3. Appropriate Bargaining Unit

- A bargaining unit: group of e/ees who can be grouped together for collective bargaining - does not mean “the most” appropriate or “the ideal” bargaining unit- The Officer determines whether the unit is appropriate- Officer considers: what makes labour relations sense?- Board determines who are/are not e/ee AND if they fall under unit

Goals of determining appropriate bargaining unit:- Encourage collective bargaining and industry stability - Create viable, harmonious bargaining relationships

Factors to Consider 1. Community of Interest 2. Bargaining History 3. Nature of Employer’s Organization4. Viable Bargaining Structures5. Avoidance of Fragmentation 6. Agreement of the Parties

1. Community of Interest - Common skills, working conditions, work- Work together/close functional relationship - Similar goals in collective bargaining

- Favours multiple smaller units- primarily useful in identifying conflict of interest within bargaining unit and identifying

groups who have been arbitrarily excluded

2. Bargaining History - Only applicable if history of collective bargaining with employer- Does employer already bargain with several bargaining agents - Viability of particular collective bargaining structure in the past- Board reluctant to create “carves out” unless compelling labour relations reasons

• Ex. they would otherwise go unrepresented- Pre-existing bargaining unit preferred if incumbent union

3. Nature of Employer’s Organization Conducive to inclusion:- High degree of integration and interdependence - Mobility between departments/locations

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- Similarities in practices- operational structure factors:

• Physical and administrative structure• Functional integration• Geography

4. Viable Bargaining Structure- Goal: equalizing power balance – bigger = stronger- Preference for larger bargaining units - Tend to promote more effective bargaining and representation - Subject to the limiting factor of community of interest

5. Avoidance of Fragmentation - Administering multiple units: administrative and financial costs are higher- Concerns re multiple strikes - “leapfrog” negotiations may promote industrial instability

6. Agreement of the Parties - Board will give this agreement some weight - Not determinative

Board Policies 1. Full-time & Part-time Employees are not seperated- Reasons: status of employees changes- Easy to separate provisions in a collective agreement 2. Avoid Tag-Ends- small portions of workforce that would remain unorganized - This is a competing policy that must be weighed against community of interest 3. All e/ee units:- Will be considered appropriate unless there is insufficient community of interest 4. Industrial Plants- Usually exclude office, clerical and quality control e/ees from “production” unit.- Only include if union can demonstrate support with both 4. Public-sector units: Public Service E/ee Relations Act: Alberta e/ees of the Crown form a single unit5. Sector-Specific Considerations:- Retail (preference for multiple locations)- Security guards (preference for excluding from other units)- Manufacturing- Medical & Health Laboratories- Mining, etc.- Statute created units: often the case for public sector bargaining units - Fire: only one union per e/er. Includes mechanics and tradespersons- Education: separate teachers and non teachers (admin and non certified teachers)- Office, clerical and sales: usually separated- Units are usually regional

MacKenzie Catering 1997 AB LRBR Facts:- Employer operated 22 camps providing meals and housekeeping services

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- Its Solv-Ex Camp outside of Ft. McMurray was the largest (27 e/ees)- The Union applied for a bargaining unit for only Solv Ex - Employer argued for an employee-wide unit - Basis: same tasks and regular relocations (evidence didn’t support)1. Community of Interest- Board considers do the e/ees IN the unit have common interests- This factor is not meant to be expansive (don’t include outside parties)2. History of Bargaining (n/a)3. Fragmentation- Board prefers larger units, but assess each application on its own- Smaller unit appropriate in some cases, particularly where employees otherwise denied access

to bargaining4. Nature of Employer’s Organization- Limited Integration5. Difficulties Organizing (added factor)- Union had difficulty organizing sites- No other units certified for this employer- Not much evidence of difficulty in industry generally6. Agreement of Parties (n/a)7. Desires of Employees (added factor)8. Viable Bargaining Structure- Large enough unit to be viable- Description of geographic limitations sufficient to indicate who was in the bargaining unit

Held: Solv-Ex camp of 27 employees was an appropriate bargaining unit - It was unique enough to narrow its community of interest

Different (i.e. more) positions More employees Separate management structure

Southland Transportation Ltd. - Employer operated school bus service in Calgary and surrounding area- Teamsters Local 362 applied to become bargaining agent for unit of employees described as:

o All school bus drivers working out of Cochrane, AB branch (216 Griffin Road) except dispatcher, office clerical, supervisors, and those above

- Officer amended the description of the bargaining unit to read:o All employees working out of Cochrane

- Officer included additional e/ee: dispatch, mechanics and commuter drivers (union objected) - E/er objections: defining unit descriptor as “working out of” created uncertainty

o Unit should include all e/ees: common interest, common working conditions and qualifications, interdependence of locations

o Some lived out and parked out of Cochrane- Union objects to inclusion of non drivers

Board held:- Mechanics (out) no community of interest- Dispatcher/drivers (in) no conflict of interest- Trainer/driver (in) functionally drivers- Commuter drivers (out) no community of interestConsider: physical/admin structure, functional integration, geography25

- Function integration of employees NOT departments

Certainty: Working out of Cochrane: is sufficiently certain to be an appropriate bargaining unito Regardless of where the drivers parked o Depot provided: dispatch instruction, emergency assistance

Operational Structure: convenience of e/er administrating one homogeneous workforce does not trump e/ee right to organize - Board amended description of unit as follows:

o All school bus driers working out of the Cochrane depot

Voting- 50% required - representation vote - secret ballot vote- location: most convenient to encourage high turn out (usually at e/er location)- Officer prepares: notice and voter list which are posted at work site- Disputed ballots: placed in sealed ballot box pending outcome of hearing

o If there is a dispute re: whether a e/ee is a member- No campaigning outside of vote site- Scrutineers on both side: union/e/er

Who gets to vote (non construction rules)- e/ee at work on date of application- E/ee absent on that day may vote if they have a significant continuing interest in their job- Parental leave, casual illness, vacation or temporary lay off e/ee can vote- 30 day rule: f/t e/ee can vote if they:

o Worked w/in 30 days and are likely to return in 30 dayso Parental leave

- Casual e/ees can vote if they are working on the date of application: Bosco Homes- E/ee who quit or are terminated after the certification application is filed (Athabasca Northern

Railway)- Usually can’t vote: long term disability, extended sick leave, long term layoff or major

disciplinary suspension

Bosco Homes (casual e/ees voting)- Casual e/ee attended a meeting- Union filed application for the date of the meeting- E/er argued: gerrymandering (manipulating the election boundaries to favour party) and

Board should refuse applicationHeld: Application allowed despite being close to prohibited act

o Not quite an unfair labour practice- BUT: certification should only be denied in “extreme cases” of vote manipulation where e/ees

eligible to vote is seriously unrepresentative

Athabasca Northern Railway- E/er objected to 2 e/ees votes being counted bc they had resigned e/ment between application

and voteHeld: dismissed- Ratio: Board will only deviate from voting rules in LIMITED CIRCUMSTANCES

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Additional Bars to Certifications. 38 no certification if:- Trade union is e/er dominated- Picketing of work place resulted in union membership- Policy reason: ensure e/ees free choice

s. 39- If all issues are satisfied and other relevant matters are addressed: certification

Any other relevant matter:- Near unfair labour practice does not suffice as a relevant matter

1. build up principles- Board has additional discretion to refuse a certification application if, on date of application,

the number of e/ees does not constitute a substantial and representative segment of working force

o Must be a significant, actual and imminent increaseo Representative: numbers and job function

- Consider the number of increase e/ees and number of increased positions (Rocky Mountain)

Noranda MinesFacts: e/er expects a 25 to 326 increase in e/ees- No evidence from union that the projected increase will NOT occurBoard held: dismissed application- At the time of application the employees in the proposed unit did not represent a substantial

and representative segment of the workforceSCC Upheld:- Small unit at commencement of operation may be more influenced by e/er- May not be choice of the majority when the work force expands

Rocky Mountain Ski- Union applied for all e/ee unit: when there were only 16 e/ees of maintenance e/ees- At peak season e/ee numbers were over 200 in various rolesBoard dismissed application- was appropriate to apply build up principle- bc a dramatic increase was imminent- Classification at time of application was not representative of the kinds of classification after

build up- build up principle: not appropriate for construction bc of regular fluxuation

Certificate:- Contains unit description and date of issue- union, e/er, board each get a copy

Effects of certification- Exclusivity: certification makes the union the exclusive bargaining agent for e/ees in the unit- e/er must negotiate with the certified union- Unit becomes party to CA s. 40(3) 27

o can terminate it by giving the e/er 2 months noticeo in practice they usually do give notice to terminateo Option to terminate does not exist when the union certified was previously recognized

as a voluntary agreement

8 Voluntary Recognition- Historically this was the only option- E/er agrees to an uncertified union

S. 42: recognizes voluntary recognition (VR)- Does not require an initial vote to determine interest- But: can be overturned by board if the union does not have sufficient supports. 43(1) bargaining with VR unit- e/er must bargain with unit unless 6 months prior to expiry of agreement the e/er served

notice to refuse bargaining

Differences:1. no obligation to bargain in good faith w/ other party (voluntary)2. e/er can terminate w/ notice (at least 6 months prior to expiry of CA)- Grace period allows union chance to make certification application3. parties define scope of bargaining unit4. no exclusive bargaining rights for Union- Can negotiate w/ individual e/ees or other unions subject the rules of the CA- Generally a clause in the CA includes exclusive bargaining rights

Sweetheart Deals:- Risk of voluntary recognition- Enter into a CA that is worse than those a certified bargaining agent may be able to negotiate- Boards can intervene by voiding a CA if a trade union is dominated by the e/er- Mitigation: for a CA to be valid the union must have had support of majority of e/ees at time

of voluntary recognition

Certain Employees of Gateway Casinos Inc 2011 AB LRB - Agreement contingent upon Union providing evidence of majority support

o Arbitrator investigated membership evidence and confirmed majority support- E/er entered into a voluntary recognition agreement w/ union- E/er and union did not enter into a CA- Certain e/ees applied for revocation

o Demonstrated 40% support for revocation o E/ees collecting this support included security and management not a part of the unit

Held: application dismissed- Revocation requires bargaining rights to revoke:- Bargaining rights only arise upon s. 50(b): Certification OR voluntary recognition by entering

into a CA (neither were present in this case)

Ratification of CA:- Required when voluntary recognition- Not required when certified but in practice usually ratified

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Benefits of voluntary recognition:- Avoid formality, expense and delay of certification process- Parties free to define bargaining unit- Commence relationship in a non-adversarial manner

Problems of voluntary recognition:- Risk of sweetheart deals: unions that do not truly represent e/ees- Lack of formal mechanism to determine e/ee wishes- Lack of board oversight of process to ensure majority support- Risk of union being foisted on e/ees- Influence e/ees against other union who is attempting to certify a group of e/ees

Employee support still required- Union can’t conclude a CA unless it represents e/ees at time of voluntary recognition- A CA can be declared of no force or effect bc negotiations occurred when union was not

representative of e/ees - Support can be proven by:

o Majority e/ees have union membershipo Majority vote to ratify CA

Raydon Rentals 2005 AB LRBR - Union was certified bargaining agent for group of Finning e/ees- Finning owns Raydon which opened retail stores- Union stated Raydon e/ees should be included and refused to negotiate further- Finning voluntarily recognized Union as unit for Raydon- E/er required Raydon become part of the bargaining unit w/ NO VOTE- CA was reached and has been in force for 3 years w/ 2 years remaining.

Held: no evidence of support and therefore CA is not in effect- E/ees did join union but after being told they were unionized and either join or be terminated- Held: this is not genuine expression of support- Union acted on behalf of the e/ees since CA (3 years prior)

o Union argues that this shows support- Held: support must be at time of recognition and either way this does not demonstrate support

of e/eeso Accepting this would encourage sweetheart deals

- Fundamental right: of e/ees to choose whether to be represented by a uniono Can not avoid this right by having a voluntary recognition

- Means of showing majority support:o No formal mechanism requiredo Can show support by having e/ees ratify CA

- Prudent employer: must assure itself that the union has the e/ees support before voluntary recognition

Union could have:- Applied for certification- Applied for an extension of existing certification- Applied for a determination application (e/ee support would have been irrelevant)- Apply for a common e/er declaration29

Three ways to end a voluntary recognition:1. Employer initiated s. 43(1) - employers must notify union at least 6 months before expiry of collective agreement

(remember: s. 43(2) allows union to apply for certification at this point regardless of timelines bars that would otherwise apply)

2. Employee initiated - revocation application – reinforces concept that VRs still require employee support 3. Union initiated (raid) - rival union may file certification application for VR agreement during one of s. 37 open

periods (or at any time if it doesn’t believe VR has necessary employee support) 4. OR argue that there is no voluntary recognition

9 Statutory Freeze Periods

“Freeze” Provisions - Purpose - To prohibit changes to employment conditions during certain times in a bargaining

relationship • During certification application• During CA bargaining

- “freeze provisions” appear in every labour statute in Canada, but they are not identical in terms of the duration of the freeze

- Intended to temper an employer’s unfettered management rights which could otherwise be used to destabilize employee support for the union

Freeze Periods Under the Code 1471. From time of applying for certification to: dismissal or 30 days after certification

(certification freeze)2. If notice to bargain is served within 30 days of certification, a further 60 day freeze occurs

while negotiations for a first agreement are underway (first agreement freeze)3. begins with notice to commence bargaining to renew a collective agreement and ends only

with conclusion of renewal agreement, decertification or begin of strike/lockout (renewal agreement freeze)

4. where there is an essential services agreement in effect during a strike or lockout, statutory freezes (first agreement and renew agreement freezes) continues to apply to essential service workers who continue to work during a strike or lockout

What’s “Frozen”- “alter the rates of pay, any term or condition of employment or any right or privilege of any

of those employees”- Includes the Union’s rights or privileges- includes unwritten policies and practices- employer can still operate its business, provided it is doing so in accordance with its usual,

past practices

Rights of Union: United Steelworkers v AltaSteel Ltd 2014 Alta LRBR - Employer had practice of including Union in safety investigations- During the bargaining the Employer did not include the Union in all investigations

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Held: breach of statutory freeze

Three exceptions to statutory freeze rule:1. In accordance with the established custom or practice of the employer - business as usual, business as before or reasonable expectations of employees if it’s a first

change- ex. layoffs if layoffs are a result of economic downturn (reasonable expectations)2. Consent of the bargaining agent3. In accordance with a collective agreement in effect Canadian Labour Code:- Only includes the exception re: consent of bargaining agent- But courts have implied the other exceptionsElements of the Freeze1. Employer’s action must involve an alteration 2. To a rate of pay, term, condition, right or privilege of employment 3. Within applicable time periods in Code

a. (30 days, 60 days, before renewal, strike or revocation) 4. None of the exceptions (business as usual, consent of union, permitted by collective

agreement) apply - Does not require an anti-union undertone

- Union proves first three then onus shifts to e/er to show an exception existed

UFCW Local 401 v European Cheesecake Factory 1992 AB - Union certified and served notice to bargain (2 freeze periods)- Employer laid off 4 employees during certification campaign- Employer also made changes to several policiesHeld: unfair labour practices and breach of statutory freezePurpose of freeze: - The freeze following a certification application is designed to prevent employer interference

with the right to organize- The freeze period after notice to bargain is served is designed to provide a period of relative

stability during bargaining

Exceptions- Employer can still respond to business demands- Employer can still change terms if communicated to employees before freeze began- Can make changes in accordance with “business as usual”- If first time event consider “reasonable expectations of the parties”

Application: Amended Policies:- Jewelry policy (upheld business as usual)

o Policy had existed for years but not enforcedo Employer courting a new customers, and those customers required strict enforcement

of hygiene policies, including jewelry- Medical Certificate Policy (upheld business as usual)

o E/er started enforcing existing medical certificate policy more vigorouslyo Conflicting evidence about whether absences increased or stayed the same during

certification campaign31

o Policy as written did not change- Attendance at Company Doctor Policy (upheld business as usual)

o Policy was amended to name a specific doctor o Previous policy required employees to report at work injuries and advised employees

of medical clinics nearbyo On one occasion, employee injured at work taken to doctor named in new policyo Commentary: this likely would not be decided the same by the current board

- Vacation Scheduling (NOT upheld)o Employer unilaterally implemented 2 week vacation shut down and required

employees to take vacation at that timeo Employees had previously been allowed to choose whether to take vacation during

shutdowno Employer ignored special circumstances, which had previously been consideredo Implemented a 2 week “spread” between vacations, instead of 1o Refused to consider requests for extended vacations

- Work Scheduling (upheld)o Union obtained notices to attend for a number of employees to participate in hearingo E/er told employees hours of work would change because of Board hearingso It is not a breach for the employer to reschedule hours of work to maintain production

levelso It is a small plant and the work of employees is closely related

Re Southam 1999 AB LRB Facts: the E/er- Denied one employee a vacation request during the Christmas vacation - Required that employee to begin working weekends when he had not before- Required other employees to work a Friday night shifts- During certification freeze, w/ no consent and no CAHeld: Employer limited by statutory freeze provisions (cease and desist)- Change to vacation and work scheduling falls within the purview of the statutory freeze

provisions- Issue: Is the change “business as usual”1. Vacation Scheduling (upheld as it didn’t constitute a change)- Employer used same practice as previous 2 years- Employee had participated in those 2 years2. Weekend scheduling (NOT upheld)- No evidence of legitimate business need AND no history- Significant departure from reasonable expectation of the parties3. Friday Night Shift (NOT upheld)- 1994 to 1998 no change- Junior e/ees complained about working Friday night

o not legitimate business reason for changeo not a new complaint so no new need for change in November

IUOE Local 955 v Teamco Construction Services 1998 AB LRB - Union applied for certification- E/er lost e/ees and had difficulty recruiting so they increased wages - Union vote tied therefore application for certification denied (requires majority)- Union requested a remedy of another vote32

Issue: did e/er breach of the statutory freeze by increasing wages (NO)- Was raise was an established custom or practice- Both business as usual and reasonable expectations test met

- jurisprudence about “reasonable expectations approach”o Incorporates “practice” of employer in managing its operation”o “The standard is an objective one: what would a reasonable employee expect to

constitute his or her privileges … in the specific circumstances of that employer.”- Statutory freeze does not prevent employer from raising wages to recruit staff- Consider: market needs and e/er historical practice of increasing wages to recruitHeld: it is w/in the reasonable expectations of the parties- E/ee knew of difficulties hiring and would have quit if wages not increased

UFCW v Wal-Mart 2014 SCC - UFCW became certified bargaining agent for employees at Wal-Mart - Bargaining was unsuccessful and Union had applied for binding arbitration (not available in

AB)- Wal-Mart closed the store and terminated e/ees (despite performing well)Held: breach of the statutory freeze - change to the conditions of employment - Purposes of statutory freeze in first certification context

• Not merely to maintain status quo• Facilitate certification• Ensure negotiation of collective agreement in good faith

- Freeze limits primary means available to e/ers to influence e/ees’ choices- Anti union conduct does not need to be shown

Test:1. Condition of e/ment existed on day the application was filed or CA expired2. Change w/out Union consent3. Change was during prohibited period- Union must show that the change is inconsistent w/ normal management- Normal management policy:

o Consistent w/ past management practices ORo Consistent w/ decision of a reasonable manager in the circumstances

- Action would have been taken by the e/er despite the certification process

Remedy: - Sent back to the arbitrator to decide- Cannot order re-opening of the store

Dissent: does not apply to business closure. - Law allows closure for any reason.- Should have pursued claim through other section of Code which requires the Union showed

the e/er acted with anti-union intent

Changes in Accordance with AgreementUFCW Local 401 v Westfair Foods 2009 AB LRBR - Employer raised wages of meat cutters during collective bargaining

o Argue they weren’t competitive- CA stated established minimum wage table33

- Employer argued that change was consistent with collective agreement- Board says that CA must unambiguously permit employer’s actions- Can be express or impliedHeld: language of Act is not ambiguous and e/er’s change is not permitted- Policy: best promotes purpose of statutory freeze

10 Duty to Bargain in Good Faith- The common-law principles of freedom of contract are significantly qualified in the context

of collective bargaining.- Collective bargaining is the negotiating process between a union and employer for the

purpose of arriving at a collective agreement. - The Code defines collective agreement as “an agreement in writing” between the employer

and the union that contains the terms and conditions of employment.

Beginning the process (59)- No agreement in place: either party serves notice to commence bargaining- Agreement in place: either party can serve notice

o At least 60 days but no more than 120 days before expiry of CA o CA can lengthen this time frame for notice BUT can not shorten it

Requirements for Notice to Bargain (61) not examinable- Must include name and addresses of persons resident in Alberta who have authority to

bargain collectively, as well as conclude and sign an agreement- Response must include same information from other party - Parties must list other members of bargaining committee

o Must include one person from e/ers or trade union locals o All changes to bargaining committee must be given forthwith in writing

- Parties must advise the other of any ratification procedure and any changes in it o Union: memorandum given to members to vote ono E/er: memorandum given to board to vote ono Failure to advise would be an unfair labour practice

Commencement of Bargaining- Once notice served w/in 30 days must:

• Meet and commence bargaining• Make every reasonable effort to enter into a CA

Exchange of Proposals- shall exchange bargaining proposals within 15 days after the first time they meet or within

any longer time agreed on by the parties.

Subjective & Objective Duty (s. 60)1. Subjective – bargaining in good faith (intention to conclude collective agreement)2. Objective – make every reasonable effort to enter into collective agreement- A breach of either one of these duties will be a breach of the statutory requirements.

Royal Oak Lines (1996) (SCC)

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- The duty to meet is a subjective duty (intention)- The duty to use every effort to enter into CA is an objective duty (reasonable person)

o Good rationales for positions are required o Must be reasonable disclosure of supporting information to the other side

Temporal Scope of Duty- The duty to bargain in good faith commences upon service of the notice to bargain and

continues until an agreement is reached, the union bargaining rights are terminated (decertification) or some other end to the dispute under law.

- Obligation continues through a legal strike and lockout.- Statutory freeze also still in effect

Duty to Bargain in Good Faith- This is one of the most critical issues in labor law.- Freedom of contract VS public policy of avoiding industrial conflict- Statutorily imposed (no common law duty to bargain in good faith)

Purposes of Duty- to foster recognition of the bargaining agent- to foster rational discussion and reasonable efforts - these 2 purposes align with the subjective and object of duty to bargain in good faith.(DeVilbiss – ON LRB accepted by AB Board)

Vocabulary - Surface bargaining – superficial attempts w/ no real intent to conclude an agreement.- Receding horizon

• one party reneges on its previous position • where the party continues to move the target so that an agreement is never actually

reached OR• introducing new proposals at a late stage of the bargaining.

- Hard bargaining - a party using its economic power to attempt to negotiated agreements that accords with the best interests of that party, and taking an aggressive bargaining posture on terms of substance

o Not a breach of duty to bargain in good faith- Bargaining to impasse - bargaining an issue without conceding until the point of industrial

conflicto Not a breach of duty to bargain in good faith

Remedy - Issue a directive to meet and make reasonable effort- May prescribe bargaining conditions - Canadian Code – can appoint an arbitrator

GCIU v Southam Inc.- Facts: 2 newly certified unions that were engaging in bargaining simultaneously- E/er believes that the unions are working in concert- The employer did not like this, and engaged in various delay tactics.- both unions went on strike at the same time.

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Issues:1. whether it is bad faith for an e/er to refuse to include certain items in a CA (NO)2. whether it is bad faith for e/er to bargain a RAND formula clause to impasse3. Reasonableness explanation provided to support the employer’s positions

1. whether it is bad faith for an e/er to refuse to include certain items in a CA (NO)- union claimed e/er surface bargainingBoard won’t mandate a particular end result:- Board is concerned with process NOT result- Tactics: power bargaining, use of economic strength are permitted- Fairness of the CA is not the board’s concern

Objectives of the duty to bargain in good faith:1. Recognition of the trade union as the exclusive bargaining agent2. Full and rational discussion of the issues3. Serious efforts to reach a collective agreement as the end result• Process of collective bargaining must respect these objectives

Principles flow from objectives:- Must provide solicited disclosure of the information necessary provide a response;- Must provide unsolicited disclosure of decisions that have significant impact on bargaining

unit- Must not deliberately misrepresent material facts- Must thoroughly explore positions and engage in full rational discussion- Must not dictate representatives of the other party- Must not engage in surface bargaining- Cannot bargain to impasse illegal or improper demands

Factors that can infer lack bargaining in good faith- history of unfair labour practices- Proposals w/ no justification- Proposals so unreasonable that they must be rejected- Refusal to include standard industry clausesContents of negotiations- Boards are reluctant to dictate the subject matter of negotiations- No rules re: content of bargaining or CA- Will not allow illegal or improper - CA does not have to cover all aspects of work relationship

Held: No failure to bargain in good faith by maintaining its position that certain terms would not be included in a collective agreement.

2. whether it is bad faith for e/er to bargain a RAND formula clause to impasseRAND: e/ee must pay dues but do not have to become a member

- Depends on circumstances- E/er did not give reasons for requiring RAND

Held: employer breached its objective duty to bargain in good faith when it failed to make reasonable efforts to reach a collective agreement.

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- The employer persistently failed to engage in timely, informative and rational discussion.- Slow responses to request for information (10 months)

- Detailed justification of positions likely required in first collective agreement, attempts at major changes OR attempts to stray from industry standards

Remedy: - E/er must bargain in good faith and make reasonable efforts- Imposed bargaining schedule- Required e/er to provide written proposal on outstanding issues w/ justifications

UFCW v Gainers - Negotiations break down – strike and lock out occur- E/er tabled first proposal 2 weeks after strike started- E/er applies to wind up e/ees pension plan- Union was not advised until hearing w/ Board

basic propositions (DeVilbiss)- E/er can’t enter negotiations w/ intent to get rid of union - E/er can’t enter negotiations w/no intent to form a CA- Voluntarism is key: parties must agree on terms- Parties must make reasonable efforts - Public interest considerations

Several aspects of the duty to bargain in good faith1. The obligation to disclose pertinent information requested by trade union- Party can’t withhold relevant info w/out reasonable grounds- Refusal to provide info to allow union to appraise proposal is bad faith2. Avoid misrepresentation- Undermines framework for collective bargaining3. Duty to disclose is a positive obligation- Union does not have to request information that will have a significant impact on e/ees- Only applies if the decision has been made (not if it is just being considered)

Strikes/Lockouts- Should not occur unless proposals have been put forward and discussed

Held: E/er breached obligation to bargain in good faith by failing to disclose pension wind up - Misrepresentation: e/er’s proposal did not disclose pension wind up

Edmonton City - During bargaining the employer made a decision to engage in a significant restructuring:

classifications, wage changes, lay offs (200 e/ees or 10% affected)- Employer told union about reorganization but not details shortly before telling e/ees- Union learned of details at same time as employees- Union alleged breach good faith bc the e/er had not disclosed this earlier

Defacto vs Formal decision:- Issue: is awaiting formal decision required

o Are all the details determined

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o Is there a reasonable likelihood that final approval will be grantedo If approval is just a formality then it may be a defacto decision

Held: E/er did not bargain in good faithRemedy: Order to bargain in good faith and make full disclosure about reorganization

o Reorganization not unwound

AUPE v. VS Services - “me too” agreement = Smaller e/er agrees to terms that a larger e/er in the same industry uses- After Master Agreement finalized e/er attempted to introduce new proposals that: 1. Changed agreed to items;2. Reopened issues that had previously been withdrawn; and3. Were entirely new itemsHeld: 1 and 2 are breaches of duty to bargain in good faith- Objective failure to make reasonable efforts to attempt to make a CA

Examples of Bad Faith Bargaining- Refusing to meet, provide info, follow through on promises- Misrepresentations- Failing to prepare, commit time, meet frequently or long enough- Threatening contracting out and layoffs w/out genuine intent- threatening contracting out and layoffs without genuine intention to do so- Inflammatory proposals or sudden changes w/ no justification

11. Unfair Labour Practices

- Often during certification and collective bargaining process when parties are particularly vulnerable

Employer ULPs - Breaching Duty to Bargain in Good Faith: s. 60- Altering terms of employment during “statutory freeze”: s. 147 - Interfering with formation or administration of trade union, or the representation of

employees by trade union: s. 148- Discriminating against, coercing, etc. employees for trade union activity: s. 149- Dispute Related Misconduct – s. 154

Union/Employee ULPs - Breaching Duty to Bargain in Good Faith: s. 60- Prohibited practices by trade union: ss. 151-152- Union’s Duty of Fair Representation – s. 153 (really a ULP?)

o Open to e/ee to claim union failed duty to e/ee- Also Dispute Related Misconduct – s. 154

Timelines- Employer, employee, trade union, or other interested person may make a complaint in writing

to the Board that there has been or is a failure to comply with any provision of this Act - The Board may refuse to accept any complaint that is made more than 90 days after the

complainant knew, or ought to have known, of the action or circumstances giving rise to the complaint.

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E/ers prohibited activities: 1481. participating in or interfering with the formation or administration of a trade union 2. participating in or interfering with representation of employees by trade union 3. contributing financial or other support to a trade union

Participating: - Policy rationale: prevent employer domination of the union. - Unions must have separate and distinct identity from management in order to avoid conflicts

of interest in collective bargaining

Interference: - Policy rationale: employees should be free to choose whether to be represented by a union in

the absence of intimidation or other tactics by employer - E/er can’t use TIP: threat, intimidation and promises

Financial or other support: - Policy rationale: employer cannot use its economic power to interfere with trade union

formation or representation to facilitate representation by its preferred union

E/er permitted activity- Donations to union for welfare of members of trade union/dependents - Allow: union business during work hours, on work property, using work transportation- Expressing employer’s views as long as they do not use coercion, intimidation, threats,

promises or undue influence - Suspending or discharging for just cause- Can dismiss, suspend, transfer or lay off IF proper or sufficient cause

• Only if there is NO anti union animus

Who May Commit ULPs?- employer or “someone acting on behalf of an employer”- May be a member of management, a supervisor, or a third party- Unfounded employee perception that person is “close to” management is not enough

E/er can not (149)- Discriminate against union participants or e/ees who engage rights under code- Can’t impose working conditions that restrict rights under Code- Employers/those acting on their behalf shalt not: - Generally looking for “anti-union animus”

Elements of an Employer ULP1. must be by employer or someone acting on employer’s behalf2. employer must have engaged in specific acts enumerated 3. E/er acted for prohibited purpose (if there is a purposive element)

Some Key Points- Dismissal of lead union organizers creates rebuttable inference that dismissals are result of

anti-union animus - Onus of proof falls to applicant unless it raises sufficient facts to justify drawing an inference

that a prohibited purpose played a part in the termination

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- Eventual certification does not prohibit a finding of a ULP

Elements of a Union ULP1. Conduct by union or person acting on its behalf2. Conduct must be enumerated in s. 1513. Union acted for prohibited purpose (if there is a purposive element)

Prohibited Practices by Trade Unions - Examples- Compelling an employer to bargain if the trade union is not the bargaining agent- Bargaining collectively with an employer if another trade union is the bargaining agent- Interfering with formation of an employer’s organization- Engaging in a certification campaign at the employer’s place of business during working

hours without the employer’s consent;- Coercing, intimidating, threatening, promising or unduly influencing employees to join a

trade union- Internal “unfair practices” - A trade union shall not expel or suspend a person from membership or deny membership in a

discriminatory manner or take disciplinary action or impose a penalty on a person. - Board doesn’t have jurisdiction unless union member first appeals through union’s appeal

procedure

Stuve Electric (No. 1) - Application – Union had proof of support- Certification Vote – union did not get majority supportIssue: Union claims unfair labour practices (between application and vote)Owner committed following anti-union tactics- Told e/ees he would lay off union leaders- Directed supervisor to obtain list of union e/ees- Asked each e/ee if they supported the union- Told e/ee who admitted to supporting the union “find a new job”- Threatened to close business if certification occurred- Held a meeting and encouraged e/ees to sign an anti union petition

Union complained: - threats to compel e/ees to cease membership, (YES)- threats bc members participated in Code, (YES)- interference w/ representation (YES)

Free speech – argument rejected bc of threats- Balance right of free speech against freedom to select union representation- Can communicate view but can’t be coercive

Remedy: Union requests certification (not allowed) this was appealed on constitutional grounds

Stuve Electric (No. 2) - Union appealed requesting certification as a remedy for ULP- Denied: Board can’t cerify w/out majority support

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- Remedy: ordered new vote, w/ former e/ees, away from e/er premises, w/ no e/er reps in attendance; cease and desist order; notice to e/ees re: ULP

European Cheesecake Factory - ULPs: keeping list of union supporters/non supporters; laying off suspected supporters,

sending a management mole in to meetings, captive audience meetings, threats to close business if vote succeeded,

CAW v. E.D.O. Canada (E/er good practice)- Employer sent two letters to employees 5 days and 1 day before a certification vote- Letters refuted alleged statements made by the Union - Suggested employees asked the Union a number of questions - 30/30 split vote – application dismissesUnion argued: letters coerced & E/er interfered w/ representation by unionIssue: whether e/ee were capable of expressing true wishes via vote- Burden of proof on party alleging breach- Consider objective test: an e/ee of average intelligence and fortitudeHeld: The letters were a legitimate form of employer expression:- E/er can refute misstatements of Union and point out the loss of the e/ee and e/er relationship- Letters referenced job security: not extensively and no reference to closure- Questions re: dues and constitution were encouraging e/ees to inform themselves- References to problems the Union had with other employers were from newspapers and so in

public domain- Acceptable for Company to try to persuade employees of its views

Gateway Casinos v. UFCW - E/er paid legal fees of e/ee who opposed union merger- Breach: interference w/ bargaining agent – indirect expression of support for opposition to

union- Also a breach to finance revocation applicationsRemedy: Can’t grant Certification (Federal and BC labour acts allow this)

Westfair Foods - ULP: Screening of applicants of union sympathetic applicants- Remedy:

o Ordered union presence at all job interviews for 12 monthso Mandatory meetings for employees in presence of union to counteract employer “pre-

screening” and “rigging” the workforce for 12 months o Legal costs - $10,000

UFCW 401 v Canada Safeway- Final offer sent to union and e/ees one day before strike- Managers: met and called e/ees to advise of offer- Info – omitted some aspects of the offerUnion complained: - Timing and omissions were interference w/ union representation (yes)- Breach of duty to bargain GF (no) – no evidence of no intent to come to an agreement- Captive audience meetings w/ managers were coercive (Dismissed w/out discussion)Held: E/er attempting to bargain directly w/ e/ees = interference w/ union rep.

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- Nothing unlawful per se about placing offer before employees or making final offer on eve of strike

- But e/er must give it to union before e/ees

11.2 Duty of Fair Representation

“No trade union shall deny an employee or former employee who is or was in the bargaining unit the right to be fairly represented by the trade union with respect to the employee’s or former employee’s rights under the collective agreement.” 153- Historical origins: differential treatment of black e/ees

Union not liable for financial loss to employee if:- the union acted in good faith when representing the employee, - or the loss was the result of the employee’s own conduct.

Complaint process: - Usually arises in context of Unions handling of a grievance- Union has legitimate role to play in “filtering good grievances from the bad” - Statute is codification of common law duty - Cannot sue for breach of DFR

o Complaint goes to Labour Board (as per statute)o Public Unions – under common law can complain to Courts

Duty doesn’t apply to bargaining- No duty until there is an agreement- Always conflicting interests in bargaining- However, this exception is only for true collective bargaining where the Union is acting on

behalf of all employees, and employees have opportunity for input

Vickers v Health Services Association of Alberta [1997] Alta LRBR 11- Group of new e/ees being accepted into a union- Old e/ees upset w/ how they were being integrated into seniority system of CA- Duty applied because CA was in effect

5 key principles for DFR (Gagnon SCC): 1. The exclusive power conferred on a union to act as spokesperson for the employees in a

bargaining unit entails a corresponding obligation on the unit to fairly represent all employees comprised in the unit.

2. When the right to take a grievance to arbitration is reserved to the union (depends on CA) the employee does not have an absolute right to arbitration and the union enjoys considerable discretion

3. Discretion must be exercised in good faith, objectively and honestly, after a thorough study of the grievance and the case, taking into account the significance of the grievance and of its consequences for the employee on the one hand and the legitimate interests of the union on the other

4. The union’s decision must not be arbitrary, capricious, discriminatory or wrongful 5. The representation by the union must be fair, genuine and not merely apparent, undertaken

with integrity and competence without serious or major negligence, and without hostility towards the employee

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Factors for Union to consider: - How critical is subject matter to employee- How valid is the grievance (either by the language of CA or facts of case)- How well has union investigated employee’s case - Normal practice of Union (any agreements/understandings arrived at with employer) - Interests other than e/ees:

o Resources involved (resources are finite) o Contrary interests: Interests of other employees involved o Can settle ongoing grievance in exchange for bargaining concessions (minor issues

only)

Limits on Union:- Union cannot show “favouritism” or discriminate on basis improper motives- Cannot only give “superficial” attention to potential grievance - Must not be arbitrary

Options- Legal opinions a valuable tool - Cost/benefit analysis - Settling grievances in exchange for bargaining concessions: yes, but risky

Employee Duties: - Duty to cooperate with Union- Filing grievances in accordance with CA- Providing info to union - Protecting their own interests - Minimizing losses

o Failure to do these things can compromise a DFR complaint

Remedies- Damages

o No more than amount payable by e/er if e/ees grievance had succeeded o Generally, no aggravated/punitive

- Declaratory relief of breach of duty - Cease and desist order - Order that Union proceed with grievance (extend timelines in certain instances)

12 The Collective Agreement- Binds: e/ees, e/er, union (128)- 1 year term unless specified otherwise (129)- Bridging provision: continues from service of notice until:

o New CA, revocation, strike/lockout (130)o Usually new agreement is retroactive - depends on agreement between parties

Legal Effect of CAMcGavin Toastmasters Ltd v Ainscough 1976 SCC - Employer planned to close plant - In protest, employees went on strike43

- Collective agreement in effect prohibited strikes/lockouts (illegal strike)- Employer closed plant and refused to pay severance pay on the basis that employees had

repudiated employment (they quit)- Employees brought action in Court for payment of severance pay according to terms of CAHeld: - No individual e/ment contracts if there is a CA in place- Common law concepts, such as fundamental breach and repudiation, do not apply in

this contexto implications: constructive dismissal don’t existo must file a grievance

- Unlawful strike will not terminate employer/employee relationship (may have been justified in terminating the e/ees w/ cause)

The Collective Agreement (most contain the following)- Wages- Hours of work/Scheduling- Vacations and holiday pay- Union security- Seniority- Vacations- Lay off and recall- Promotions and job postings

- Benefits and pension – usually through an 3rd party insurer

- Dispute resolution process Grievance/arbitrations (required: if absent Act implies term)

- Term (Required: if absent Act implies 1 year)

Enforcement

Arbitration- Method of settling dispute is required or model clause is used- Appointment of arbitrator/arbitration board through mediation services (137/8)

o Boards include a nominee be each sideo Some nominees are ineligible (Financial interest/involved previous disputes)

Board Powers- Filing with board (becomes a public document)- can declare a C/A void if: Union is dominated by e/er OR vice versa (133)- Can intervene if arbitrator’s decision is too slow (140)Arbitrator Powers- Can’t alter terms of C/A (142)- Power to conduct site visits, inspections, question witnesses- Rules of evidence do not apply- Parties bound by award (144)Courts:- Judicial Review (145) Apply w/in 30 days- Court order can enforce award

Types of Grievances1. Individual: Alleges breach of agreement affecting particular employee2. Group: The same as individual grievances, but for a group of employees3. Policy: Alleges breach of CA that may not affect any particular employee yet- Historically arbitrator could not make awards re: policy grievances

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Grievance Arbitration:- CA usually has a process for resolving grievance before arbitration- If the parties do not comply w/ grievance procedure then the issue may be deemed

unarbitratable - If unable to resolve the parties appoint a single arbitrator or panel- In AB usually heard by private arbitration

Jurisdiction:Weber v Ontario Hydro 1995 SCC Facts: E/er hired PI to spy on e/ee on sick leave. E/ee suspended for abuse of sick leave.- E/ee brought a tort action and claimed Charter violationIssue: whether courts have jurisdiction over matters arising from CA

Three potential models of jurisdiction1. Concurrent jurisdiction- Regardless of whether matter arises from employment relationship, both courts and

arbitrators have jurisdiction concurrently2. Overlapping jurisdiction- If issues go beyond the traditional scope of labour law, part of the dispute can be brought

before a labour arbitrator and part before a Court3. Exclusive jurisdiction (ACCEPTED APPROACH)- If the facts of the dispute in their essential character arise from the interpretation,

application, operation, or violation of the collective agreement, labour arbitrator have exclusive jurisdiction

Majority: only exclusive jurisdiction model is consistent with labour relations legislation- Determining essential character - interpretation, application, administration, or violation of

the collective agreement look at 2 things:1. Factual nature of dispute2. The terms of the Collective Agreement

Analysis of facts of Weber:- CA terms were very broad: Employer prohibited from “unfair treatment”- Held: Dispute in its essential character arose from interpretation, application, operation, or

violation of CA- Court action dismissed- SCC also dismissed Charter application on the basis that labour arbitrators have

jurisdiction to provide Charter remediesAB: statute allows arbitrators to decide Charter applications

Owens v Parry Sound 2003 SCC - Probationary e/ee terminated upon return from maternity leave- CA allowed employer sole discretion to terminate probationary employees w/ no grievance

processIssue: whether the arbitrator could apply human rights and employment legislationHeld: human rights and employment standards legislation forms part of all collective agreements and arbitrators have jurisdiction to apply such statutes

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- Follows concurrent jurisdiction model- E/ee can make a complaint either to human rights commission or arbitrator- Commission may decline jurisdiction to arbitrator

- Anything e/ment related can be dealt w/ by the arbitrator: OHS, WCB?

Nor-Man Regional Health v MAHCP 2011 SCC - E/er general practice to not count time as “casual e/ee” toward service for determining

vacation level provided by CA- Arbitrator held: CA granted casual e/ees vacations rights BUT union estopped from relying

on strict language of CA- Estoppel bc: e/er had been operating in this manner for some time and union had not objected

Standard of review for arbitrations is reasonableness - except for questions of general importance to the legal system of Canada or true questions of

jurisdiction- Issue of estoppel not of general importance to Canada- Labour arbitrators competent and given broad mandates to apply legal/equitable principles- Continuing e/ment relations requires arbitration sensitive to parties interestsApplication: Arbitrator’s decision was reasonable- Arbitrator’s reasons were intelligible, transparent, and coherent- Arbitrator not required to apply legal test for estoppel in the same manner as courts- Arbitrator must apply estoppel in a manner consistent with labour relations legislation, the

principles of labour relations, the nature of the collective bargaining process, and the particular grievance

Management’s Rights- clause reserving all rights to manage business except as limited by the agreement- If not explicit in CA they are often implied- Exercise of management’s rights have been regulated by arbitrators

WM Scott & Company v CFAW 1977 Can LRBR Facts:- E/ee made negative comments re: e/er to media and was terminated- Majority of Arbitration board held: intentional defamation and upheld termination- Union appealed to BC Labour Relations BoardIssue: Application of new legislation that allows Board to substitute forms of discipline- Common law concepts of termination do not apply when there is a CA- Employer can’t unilaterally terminate the employee with notice or pay in lieu thereof- BC Legislation overrules SCC decision in Port Arthur Shipbuilding that says that if the

employee had given some cause for discipline arbitrators have no jurisdiction to overturn employer’s decision on discipline imposed

- Arbitrators have power to substitute another form of discipline

Issues in discharge grievance:1. Has the employee given just and reasonable cause for some form of discipline2. Was the employer’s decision to dismiss the employee excessive3. If discharge was excessive, what alternative should be substituted

Factors to consider to determine whether discharge appropriate:46

- Seriousness of the offence- Premeditated or momentary lapse of judgment- Employee’s length of service- Disciplinary history- Consistency of discipline- Others added by subsequent case law: economic hardship, provocation, remorse

Lumber and Sawmill Workers’ Union v KVP 1965 - Employer unilaterally introduced policy that if an employee had more than one garnishee

summons the employee would be terminated- The grievor, an eight year employee with an unblemished record, was terminated after he

received three garnishee summonsLaw- If a rule is negotiated between the parties, arbitration boards will enforce it- If a rule is unilaterally imposed by the employer, arbitrators will only enforce it in certain

circumstances- The presence or lack thereof of a management rights’ clause does not affect this

Unilaterally imposed rules must meet ALL the following criteriaRule must:1. Not be inconsistent with the collective agreement2. Not unreasonable3. Be clear and unequivocal4. Be brought to the attention of the employee5. The employee must be notified of the consequences of the breach of the rule6. The rule must have been consistently enforced

Issue: Whether rule was reasonable and consistent with the CA- The rule must be considered as written not as employer may apply it- The rule was not reasonable

o Very little impact on operations of employero Imposed very serious penaltyo The rule was not consistent with recognized reasons for terminating employees

- The rule was also inconsistent with the Collective Agreemento Agreement contained seniority clause that made promotion, protection from lay off,

etc. based on seniorityo Seniority could only be lost in limited situations, including if the employee was

discharged for just causeo A rule that provides for termination for a minor offence is not consistent with

seniority clause

13 Resolving Bargaining Disputes without Strike/Lockout Alternative Dispute Resolutions Methods1. Mediation (required)2. Proposal/Recommendation Votes3. Interest Arbitration4. Disputes Inquiry Board5. Public Emergency Tribunal

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 1. Mediation - After notice to commence bargaining has been served either party or the Minister may request

the Director of Mediation Services to appoint a mediator- Can be informal (s. 64) or formal (s. 65)

o Informal:  does not affect any steps towards strike/lockouto Formal: required step before strike/lockout

- Can occur before the parties have even met- Essential Services, Director may only appoint a mediator if there is a filed essential services

agreement, an exemption, a compulsory arbitration declaration, or consent- Roster online, one selected from that list- First 2 days are paid for by the government; beyond that, parties are responsible

Role of mediator:-   mediator shall inquire into dispute and attempt to affect a settlement 65(3)- After 14 days w/ no settlement mediator will usually either (a) recommend terms or (b) “book

out” - Recommendations usually only come when parties are really close-     Parties can accept terms within time limit set by mediator (s. 66)

o If one side accepts and the other does not, the one accepting can request a vote by the other party

14 day “cooling off” period after one of the following:- The mediator books out- The date the mediator sets for acceptance or rejection of recommended terms- The date on which parties are notified of the results of the vote on the terms- Can’t strike/lockout 2. Proposal Votes - Can be a vote on most recent offer (s. 69) or the mediator’s recommendations (s. 68)- Offer, if accepted, must be clear and capable of forming CA (s. 69(2))- Each party may apply to Board only once during each dispute for a vote (s. 69(3))- Can apply for a second vote on mediator’s recommendations 3. Interest Arbitration- This is “interest arbitration” vs “rights arbitration” (e.g. grievances)Voluntary Interest Arbitration (Div 15)- Parties may voluntarily agree to appoint of single arbitrator or 3 person arbitration - If arbitrator is not able to effect a settlement, will make an award/decision that sets terms of

new agreement- Rare: parties rarely go to arbitration voluntarily bc they loose control of the process

Compulsory Interest Arbitration (Div 16)- Only applies to Fire/Ambulance and other Hospital e/ees in certain circumstances- Prohibited from effecting certain terms

4. Disputes Inquiry Boards (Div 17)- Can be appointed by Minister of Labour- Usually only used when a strike will have a significant impact on the economy- Similar to mediation48

- 20 days to resolve - If no resolution the board makes recommendations which MUST BE voted on

5. Public Emergency Tribunal (Div 18)- Lieutenant Governor in Council can make orders if dispute between parties threatens health

or property- Can dictate process and or terms of agreement 

14 Strikes & Lockouts

Overview1. Requirements for legal strike and lockout2. What is a “strike”3. What is a “lockout”4. Illegal strikes and lockouts & penalties

Prohibition on Strikes/Lockouts (71/72)- No strikes or lockouts, or threats of a strike or lockout unless permitted under the Labour

Relations Code- Words can be a strike ex. threats to not work over time

Requirements for Lawful Strike/Lockout- MUST occur BEFORE a legal strike or lockout: 1. no CA in force (except s. 130 – bridging provision for expired CA)2. strike/lockout vote must be held, and results must be current 3. strike/lockout notice must be given 4. strike/lockout must commence in accordance with notice 5. Dispute Inquiry Boards – time limits in s. 105(3) must have expired - 10 days after Minister serves copy of recommendation on parties, or - 72 hours after results of vote on recommendations of DIB are released - Must give the DIB process finish

- Generally lockout provisions “mirror” the strike provisions - S. 73 for strikes, s. 74 for lockouts

Strike Vote - Must be current w/in 120 days- Must be filed w/ LRB- Must have MAJORITY in favour of strike 1. When can a strike vote take place (75)- on application to the BoardNot until: - No CA in force subject to s. 130 (bridging CA)- A mediator has been appointed s. 65- “cooling has expired [14 days] - But less than two years has passed since its CA expiry

Mediation s. 65

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- Mediator can be requested by either part of the Minister- If after 14 days w/ no agreement:

o From date of appointmento Date parties notified of s. 69 vote (last offer vote)o Or longer period agreed by parties, fixed by director

- Mediator can recommend terms or “book out”/no recommendations

Mediation: Cooling off period 65(7) 14 days from latest:- Notification of refusal to make recommendations- Date for acceptance/rejection of recommendations- If vote recommended then date parties notified of vote results

2. Voting Rules - Union can apply to LRB for supervision of strike vote (75)- Rule 24: Unions must apply for strike votes at least 7 calendar days before planned voting

date; single employers, polled as soon as possible after applicationo 14 days for employer’s organizations.

- Can apply for a vote during cooling off period, but proposed date has to fall after expiry of 14 days

- Director of Settlement may reduce the 7 & 14-day requirements w/ consent or board approvalWhen is a strike vote “current”? - Strike vote void after 120 days (77)- No vote allowed after 2 years of cooling off period – dispute no longer exists

Who is eligible to vote in a strike vote? - Majority of those who vote- employees affected by the dispute can vote: 76(3)

o employed at any time during 60 days preceding the strike vote

3. Strike Notice - Must Be Given Pursuant to the Code (73(c), 78, 79, 80)- Personal service on employer giving at least 72 hours of notice of the:

o Dateo Time o Initial location at which strike will commence

- Must also serve notice on the mediator (72 hour rule doesn’t apply)- Modifications to notice: parties can agree to amend, but must notify mediator of amendments

(79)

4. Strike Must Commence in Accordance with Notice - If strike doesn’t occur as per notice then notice becomes ineffective and new notice must be

served

5. Dispute Inquiry Board DIB (105(3))- no strike or lockout shall commence until 10 days after Minister serves copy of

recommendations or notification of results of DIB vote on parties (73(3))- DIB doesn’t affect existing legal strike or lockout.

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Definition of Strike:- Cessation, refusal or refusal to continue to work- by 2 or more employees acting in combination or in concert or in accordance with a common

understanding for the purpose of compelling their employer or an employers’ organization to agree to terms or conditions of employment or to aid other employees to compel their employer to accept terms or conditions of employment

Elements of a strike1. Refused work – (cessation of work, refusal to work, refusal to continue to work) 2. Concerted action – 2 or more employees acting in concert or in accordance with common

understanding 3. Purposive/subjective – actions must be for purpose of compelling employer to agree to certain

terms or conditions of employment (or to aid other employees in doing so) - BARGAINING PURPOSE

HSAA v VS ServicesFacts: notice served, walked off job, e/ees returned to work but refused over time- E/er argued OT ban was an illegal strike and applied for cease and desist order- Employer argued that new strike notice was required under s. 78 as there had been a change

in strike activity which amounted to two strikes

Definition of strike:- “Strike” has a broad definition, includes reduction of output, and other activities that involve

less than a total withdrawal of services. - A strike can include any situation where employees deliberately do not work in the way they

have agreed. - Includes intermittent activity too – no requirement in Code that strike be continuous,

Requirements of valid strike notice:- Purpose of notice requirement include

o Serves as a warning to employers and third partieso Creates pressure during which negotiations intensify o Gives mediators and government the opportunity to get involved

- Union or E/er determine what type of strike activity they will engage in- Code “will commence” notice is to be at the start of the action - DOES NOT need to indicate progression of action - Employers who find uncertainty intolerable may lockout.

Ratio: A strike includes withdrawal of services that would normally be provided- includes overtime banRatio: Strike activity can change or be intermittent and NOT require new notice

McGavin Foods Ltd. - Reconsideration of Board’s “cease and desist” order which was issued to stop an illegal strike- Board’s reconsideration power 12(4)Facts:- The bakers (represented by one union) were on a legal strike- The drivers (represented by another union) refused to cross the bakery employees’ picket line. - The CA contained a provision stating that “the Company shall not require any employee who

is a member of the union to cross any lawful picket line.” - The employer’s position: these employees are engaging in an unlawful strike51

- The union’s position: these employees are acting in accordance with the CA- The union filed a grievance and also sought reconsideration of the Board’s decision

Board considered 3 issues: 1. Is this a strike? 2. If so, does the Board have discretion to decline to issue a cease and desist order in light of the CA3. Is Article 20.03 of the Collective Agreement, which states that the company shall not require any employee who is a member of the Union to cross any lawful picket line valid in law

Issue 1. Is this a strike:

1. what is “work”- “work” for purposes of this definition = work that is that which the employee would

ordinarily be expected to do - HOWEVER, Employees do not strike illegally when the work they are refusing to do is that

which they can legally refuse to do (i.e. unsafe work) - Definition does not depend on CA

2. Concerted Activity - Specific evidence of concerted action is often very difficult to obtain. - Once it is established that employees have refused to work when work is scheduled, there is

an onus on employees to come forward with a credible and convincing explanation for their conduct.

- Where no explanation, or where not credible, then Board will draw inference that employees have acted in concert, and therefore illegally.

3. Purpose/Intent - purpose of compelling employer to agree to terms or conditions of employment, or to aid

other employees in so doing.- Not essential for employer to call evidence about state of mind of absent/refusing employees:

prohibitively difficult to do this - Usually a reasonable inference of intent can be drawn in the circumstances which results in

shifting of evidentiary burden to union to proffer evidence that rebuts the inference. - Must consider other issues: ex. personal safety of crossing

Contractual Clauses- Parties cannot contract out of the “No Strike” provision of the Code- These provisions have no effect on the legality of a strike, but may provide employees or

union with defence to disciplinary sanctions and damages claims - May affect rights of the parties vis-à-vis one another, but will not render an illegal strike legal

Should the clause be void? (NO)- Capable of multiple interpretations – not clear its purpose was to circumvent statute - “work now, grieve later” principle – hallmark of labour law

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- Arbitration is the method of resolving disputes about interpretation and application of collective agreement and its provisions – given multiple possible interpretations, most appropriate for arbitration board to determine meaning

Definition of Lockout- Closing of place of employment by an employer;- Suspension of work by an employer; - Refusal by an employer to continue to employ employees; - For purpose of compelling employees to agree to terms/conditions of employment

- Lockout – ends CA

Western Archrib Facts: E/er purported to lock out e/ees by imposing new work terms upon threat of discipline

Terms of the lockout: not a shutdown - Implementing terms and conditions of employment worst than those in offer with threats of

discipline:- No process to grieve to arbitration, Wage increase 2%, Changes to seniority re: lay offs

Union Response- Strike vote unsucessful (likely due to employer interference) - Argue: This is not a lockout so CA still in force and E/er can’t impose new terms- Alternative: new terms w/ threat of discipline are a ULP

Held: This is a lock out because meets the objective and subjective elements.- This is a lockout therefore e/er can impose new terms of e/mentStrikes and Lockouts are broadly defined- Strikes do not have to consist of walking off the job entirely, nor do lockouts have to consist

of a complete plant shut down - History: 24-hour lockout in the construction industry (e/ee would loose one shift and then

e/er would offer lower wage) – led to disputes - Legislative definition of “strike” and “lockout” not exhaustive

Elements of a lockout- Objectively, must be suspension or refusal to provide work- Subjectively, purpose must be to induce agreement to terms and conditions

- Paccar SCC – When a CA expires the E/er can change e/ment terms - this is by itself a lockout

- Airtex 2 – If changes to e/ment are for the purpose of ensuring production continues is not a lockout. Presumptively a lockout if done for the purpose putting pressure on e/ee to agree to terms

Distinction between “act of lockout” and “state of lockout”

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- “act of lockout” involves deprivation of work - “state of lockout” – only that parties are in a dispute, they have no C/A and employer is free

to implement act of lockout at any time Class: Attempts to remove arbitration – serious erosion of union power

Calgary Co-OpFacts: A CA was in place. E/er discusses w/ union re: reducing labour costs- Meetings occur but no agreement - E/er presented proposal to e/ee: advised if agreement not obtained Coop wold reduce hours of

senior e/ees and hire new e/eesIs this a Lockout? YES- Subjective and objective component- Lockout: can include refusal to provide work on same terms - Changes can be made if based on legitimate financial/business concerns- Objective element met: threat to reduce hours- Subjective element: ultimatum to coerce acceptance of amendmentsCriticism: did not consider e/ers argument that changes were in accordance w/ CA- ULP: e/er presented proposal to e/ees before the union (undermines union authority)

Status of Workers- e/ment continues during strike (89)- replacement workers can be hired- e/ees entitled to resume work in preference of replacement workers (90)

o e/ee must make a written requesto w/in 30 days of revocation/settlement ORo when 2 years from strike startingo exception: lawful termination, position no longer exists

- Return to work agreements can be made

Illegal strikes- Sympathy strikes: illegal if pre conditions of Code not met

o Can’t refuse to work OR refuse to work with replacement workers o Can’t refuse to handle goods “hot cargo”

- Court (QB) jurisdiction to intervene is limited (91)o Reasonable likelihood of danger to person or property ORo Resort to LRB impractical (then only interim injunctions until LRB can deal w/

matter)- No ex parte injunctions (must be notice) (92)- Board powers – declaration and direct action (86)

o Directive can be filed w/ court for enforcement (88(2))- Penalties:

o Illegal lockout: e/er max $1000/day (159)o Individual who commences: $10,000o Illegal strike: union max $1000/day (160)o Union rep max $10,000o Other e/ee max $1,000

15 Picketing and Freedom of Expression

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What is picketing- Only BC legislation defines picketing - Definition comes from common law or board decisions

Purposes:1. to convey information about a labor dispute in order to gain support for its cause from other

workers, or clients or the general public2. to put social and economic pressure on the employer, and by extension its suppliers and

clients(SCC in Pepsi-Cola)

Regulation of Picketing 1. Must be a legal strike/lockout in effect2. Picketing must occur at place of employment- This is heavily modified by case law – read down and likely unconstitutional- Secondary picketing is allowed unless it is tortious or criminal (SCC)3. Picketing must not involve unlawful actions4. Picketing must be peaceful5. Picketing must be for the purposes:

o dissuade entry into e/er premises, deal w/ e/ers products or do business w/ e/er

Board Authority- Board has authority to regulate picketing (84)- Anyone affected by picketing can apply to the Board to regulate picketing- Board can issue order to specify number of picketers, time and place of picketing- Board considers: directness of interest of person complaining, potential violence, right to

expression of opinion, not to escalate dispute

Dispute Related Misconduct- Prohibited - course of conduct (incitement, intimidation, coercion, undue influence,

provocation, infiltration or any other similar course of conduct) intended to prevent, interfere with or break up lawful activities or likely to induce a breach of the peace in respect of a strike or lockout.

- Also prohibits use of “strike breakers” (engaging in physical altercation w/ picketers)

Other Options for the Parties - Picketing Protocol - Consent Directives

Primary vs. Secondary Picketing- Primary picketing is picketing at the employee’s place of employment- Secondary picketing is picketing elsewhere- Section 84 of Code specifically allows picketing at place of employment

UFCW v. K-Mart SCC - Distinguished between distributing leaflets and conventional picketing.- Parties agree: Prohibition of leaf letting at e/ers location infringes Charter 2(b) Freedom of

Expression

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Issue: whether or not this restriction could be justified under section 1 of the Charter

Facts: - Union leaflet at non certified Kmarts - Contents of leaflet: details of strike, accusation of exploitation, request boycott- Process of distribution:

o groups of 2 to 12o 2 to 20 feet outside of the store entranceso No interference w/ e/ees, deliveries, public accesso No intimidation

Law: This leafleting was captured by the broad definition of picketing contained in BC legislation, because it was an attempt to persuade customers not to enter the stores of the secondary employer

Freedom of expression- Picketing - protected form of expression under the Charter (Dolphin Delivery SCC)- Often used outside labour context: political, social, religious groups- Public awareness of issues is important in labour disputes- Leafleting: important for conveying information and promote dialogue- Focus on: value of work in people’s lives, importance of communication

Limits on secondary picketing:- The pressing and substantial objective behind the legislation was to minimize the economic

harm and disruption to parties not directly involved in the dispute.- Reasonable to restrain picketing so that the conflict will not escalate beyond the actual parties

(Dolphin Delivery). - SCC in Kmart – differentiated leafleting from conventional picketing to avoid the concern in

Dolphin Delivery re: effect on 3rd parties

Distinction between conventional picketing and leafleting:- Conventional picket lines act as a signal not to cross a barrier; not based on rational discourse- Picketing coercive act - Leafleting persuasive act – directed at public through informed and rational discourse- Although both may result in a loss of business for the employer, picketing does by coercion

and leafleting by rational persuasion- Leafleting may be similar to conventional picketing if impeded access or if the leaflets were

directed towards workers- Purpose of the legislation

• Not to insulate third parties from harmful effects of work dispute• Minimize harmful effects to third parties which would result from other impeding

access to premises

Held: Restriction on conventional picketing is rationally connected to objective, but restriction on leafleting is too broad- The legislation is not minimally impairing- It is not tailored to minimizing the harmful effects of others impeding access to the

employer’s premises or encouraging employees to break contracts

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- No explanation given for why prohibition on only conventional picketing would not achieve objectives

Factors: conduct that is leafleting NOT picketing:- CONTENT: must be accurate, not defamatory or otherwise unlawful and must not entice

people to commit unlawful or tortious acts- CLARITY: who the dispute is between- CONDUCT: can’t be coercive, intimidating, or otherwise unlawful or tortious- LIMIT NUMBER: of people to avoid intimidation factor - NO IMPEDING ACCESS: - NO IMPEDING E/EES or SUPPLIERS

Brewers DistributorsIssue: Whether Code permitted picketing at ally employer site - Interpretation of employee’s place of employmentIssue: whether provision contravenes s. 2(b) of the Charter

Held: secondary picketing ban is contrary to Charter to the extent that it prohibits ally picketingFacts:- To prep for lockout: BDL contracted w/ MTE: warehouse space, distribution services- Lockout – MTE performed bulk of distribution services for BDL- Union attempted to picket MTEMTE: sought order declaring unlawful picketing bc it was not at “place of employment”Board held: cease and desist order granted bc MTE was not place of e/ment

Picketing (common law definition): - Physical presence of persons at or near a targeted parcel of real property- Communication with persons passing, entering, or leaving the property- With information about a dispute, and- Making an express or implied appeal for support in the dispute

The ally doctrine:- Exception to the general legislative prohibitions against secondary picketing.- Other employers who intentionally and materially assist the struck employer in resisting a

strike or prosecuting the lockout of its employees. - The ally doctrine identifies employers who are not neutral in the primary labor dispute, but

have consciously inserted themselves into the dispute as an adjunct to the employer’s economic strength.

Ally employer factors: 1. Was the work previously performed by striking employees?2. Was the work actually transferred to another employer?3. Did the primary employer received any benefit for itself?4. Did the employer performing the work have actual or constructive knowledge of the existence

of the strike?5. Was there a pre-strike agreement to perform the work?6. Was agreement motivated by fear of an impending strike?7. Was the impetus for the transfer initiated or orchestrated by the primary employer?(MTE met all above factors)

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Interpretation: - Ordinary meaning of “place of employment” includes the following:

• Location where e/ees normally or regularly work• Mobile e/ees – where they worked at beginning of dispute• Place where e/ees would return to work

- Place of employment does not include ally employers,- BUT: place of employment is a fluid concept that includes locations other than where the

employee was performing work before the dispute began

s. 84 ban on labor picketing other than at the place of employment. - Infringes right to freedom if expression- The union’s right to leaflet near the MTE warehouse is not in dispute. Picketing does not

include leafleting (IN AB).- Purpose: The pressing and substantial objective of the geographical restriction is to prevent

avoidable economic damage to neutral 3 rd parties from picketing activity. - Ban is rationally connected to purpose- If an employer can completely insulate itself from the economic pressure of the strike by

contracting out its work to an off-site employer who cannot be picketed how is any collective settlement encouraged?

- The prohibition on picketing non-neutrals is overbroad. Remedy:- s. 84 will be treated as having no force and effect to restrain the union from picketing at ally

employers - The board is limited to such a remedy and cannot make a declaration of invalidity.

Pepsi- Primary picketing - at the premises of the employer; - Secondary picketing - at other premises. - No statutory definition of picketing- Legislatures sometimes limit where picketing can occur (AB)

Facts: Secondary picketing (Sask has no relevant statutory provisions)- retail outlets where Pepsi was delivered - outside of the hotel where replacement workers were staying,- outside of the homes of Pepsi’s management personnel. - Pepsi obtained an injunction prohibiting the union from engaging in picketing activities at

secondary locations.

Picketing: - It represents “a continuum of expressive activity”- Always involves expression- Balanced against expressive activity is protection of third parties from undue economic harm

Three possibilities1. Absolute bar on secondary picketing2. Ally - Bar on secondary picketing exception for ally employers3. Wrongful action - Permitting all secondary picketing except tortious or illegal conduct

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- Picketing should be legal, subject to limitations to protect third parties- Both the illegal per se and ally doctrine possibilities are opposite to this- Wrongful action model more flexible and rational and focuses on what is important

Held: Distinction should not be on location but on legality- Caution: Nothing in this case affects the validity of any legislation- This case deals with the common law where no legislation has been enacted- However, Court confirms that legislatures must act within the broad parameters of the

Charter

Total protection is not the goal- innocent 3rd parties should be shielded from undue harm. - undue harm is conduct that is tortious or criminal (unlawful)- Protection from economic harm is an important value capable of justifying limitations on

freedom of expression.

Torts: Trespass, intimidation, nuisance, inducing breach of K, defamation, misrepCriminal acts: Mischief, intimidation, assault, theft

Application:- Peaceful picketing outside hotel and convenience stores was not illegal

o Aimed at discouraging people to buy Pepsio This is not intimidation because no unlawful acto No interference with contractual relations because no evidence of a contract

- Picketing at homes was illegal: Intimidation, private nuisance

Alberta (Information and Privacy Commissioner) v UFCWFacts: - Union posted photos of people crossing Picket lines- PIPA prohibited w/out consent- Held: PIPA Violated Charter- read down to exclude labour relations purposes - Legislature: amended PIPA to comply w/ ruling

16 Successorship

Modification of bargaining rights due to changes in employer or union

Three applications for dealing with changes in employer operations1. Reconsideration (12(4)) - Boards general power to reconsider its own decisions2. Successor Employer (46)3. Spin Off (Common Employer)

Successor Union: Union can claim successorship by reason of merger, amalgamation or transfer

Successorship (46)- Common law: contracts only bind the parties who signed them (privity of K)

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- Implications: organizational changes could compromise an CA- Code: Modifies common law prohibition on assignment of employment contracts - It provides statutory protection of trade union’s right to bargain (certification rights),

maintains existing collective agreement (representation rights) and continues any proceedings under the Code

Three elements: 1. sale, lease, transfer or other disposition 2. of a business or part of a business3. so the control of that business passes to the purchaser - “Business” is not defined: combination of physical assets and human initiative- Often referred to as a “going concern” or “functional economic vehicle’

Factors for determining whether sale, transfer or disposition occurred: (none is determinative)Transfer of: - Fixed assets ex. building- Goodwill ex. trade name- Logo/trademark - Customer lists- Accounts receivable

- Existing contracts - Inventory - Non-compete agreements - An agreement to maintain a good name- Location

- Business know-how and reputation embodied in key personnel (IMPORTANT FACTOR)- Work (in itself does not suffice to constitute successorship)Issue: whether enough significant parts of the business have passed from the predecessor to the successor to warrant a successorship declaration

Governing Bodies under s. 48- Public sector bodies that are sometimes changed through legislation may affect bargaining

relationship - Code allows certificate to pass to successor body and continue C/As - Governing body = city, town, village under Municipal Government Act; municipal district,

board of trustees of school district, non-regional hospital or health authority

Successorship Orders: - successor employer assumes the bargaining rights and obligations of its predecessor: trade

union continues as bargaining agent, and existing certificates, collective agreements and proceedings under the Code continue

- Board begins with assumption that bargaining unit appropriate until it is convinced otherwise

Union mergers1. 80/20 Rule and “run off” votes: - If 80% belong to one union = automatic union becomes bargaining agent- Applies whether minority of employees unionized or not- Otherwise representation vote needed 2. Majority non unionized- Unionized employees will cease to be governed by collective agreement: - successorship preserves existing bargaining rights; it does not expand them 3. Joint certificate

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- Competing unions wanting to avoid vote may apply to Board to hold a joint certificate - Requires a clear agreement for administering the single bargaining unit

Remedy- successor employer is bound by an existing bargaining certificate, collective agreement, and

proceedings- Declaration is effective as of the date of the disposition or merger- This may precede the date of the application

IAMAW Local 99 v Finning- Finning needs a new component rebuild centre- GM and Finning create a new centre to provide rebuild services (OEM)- Finning Int owns OEM (all voting shares)- Finning Canada entered into 10 year services agreement with OEM and abandons old centre- Union applied to Board for declaration that OEM was successor or common employerJudicial history:- First panel found that OEM was both a successor and common employer- Second panel overturned decisionFactors:- Finning is 100% beneficial owner of OEM- Finning financed new plant and purchases of small re manufacturing companies- GM designed and i/c of operation of OEM- Very little equipment transfered- No existing contracts were transferred- No goodwill was transferred- 49 out of 180 employees transferred

Principles of successorship provisions- Mischief addressed is disruption of bargaining rights from change in ownership- Bargaining rights attach to business not employer, employees, or work- “Contracting out” does not result in a successorship- Must determine “fundamental components” of business and see whether those exist in new

employer’s operations- Fundamental components will vary by industry- Whether “part of business” transferred depends on whether transferred operation is a

business capable of being functional economic vehicle- Acquisition must be from the transferor to transferee

Second panel: (overturned by CA)- If the transferee receives functional economic vehicle from someone other than unionized

business, no successorship (Finning International)- All that was transferred from Finning Canada (the unionized business) to OEM was the work - Transfer of work is not a functional economic vehicle- Although OEM required capital that it acquired from Finning, it also required GM’s know-

how and entrepreneurial vision- Successor employer application dismissed

Court of Appeal- Reconsideration panel applied unduly restrictive approach

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- Successorship provisions aimed at protecting bargaining rights- Successorship provisions should be given broad and expansive interpretation- Labour Boards must be wary of “creative” restructuring that undermine bargaining rights- Court affirmed that test is whether transferee has acquired from transferor a functional

economic vehicle- Consider factors and commercial realities

Contracting out- Contracting out is not sufficient to establish successor employer- consider any assistance provided by the party that is contracting out the work, including

capital contributions, to see if more than just work is being transferred- Consider: did the recipient have capability of doing the work before the assets were

transferred- Finning had allowed existing equipment to become obsolete, and had option to reinvest in its

own or a new facility- Transfers from third parties are also relevant- Reconsideration panel’s decision was patently unreasonable

Held: OEM was successor employer to Finning Canada- Court did not address common employer application

17 Common Employers

Common Employer Declarations - AKA “spin off” – s. 47 of Code- Separate rules for Construction Industry - Common employer declaration means that one or more businesses are carrying on under

common control and direction and are therefore “one” employer for purposes of Code - Purpose: ensure established bargaining rights not eliminated because of corporate

reorganization - Trade union has bargaining relationship with all employers jointly for a single unit of

employees

Four statutory conditions:1. The Applicant is an affected employer or trade union;2. The activities are associated or related;3. There is common control or direction; and4. There is more than one entity.

Remedy: consider is there an attempt to avoid bargaining relationship?- Discretionary: is there a valid labour relations purpose for granting such a declaration (47(1))- Mandatory when anti-union animus (47(2))

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• Expressly avoiding bargaining relationship Can issue retroactive remedy to date of application under (2)

Commonly Arise in 2 situations: 1. Double breasting: when an employer creates a spin off company that performs the same or

similar work but the new entity is non-unionized - Permitted in AB w/ limits

2. Contracting out/in: unionized employer contracts in/out a portion of its operations to a non-union subcontractor - union seeks to bind the sub-contractor to its bargaining relationship by asking the Board

for “common employers” declaration- uncommon (union should not be able to indirectly obtain what it could not through

certification) - Contracting out Permitted for legitimate business reasons

Factors to consider: relationship between parties, business, roles of parties, specifics of work, equipment use/ownership, supervision, location of work, payroll

Premetalco - Premetalco owned factory Exchanger (unionized)- Premetalco purchased Thermotech (non unionized)- Prematalco expanded:

o initially Thermotech was a shell company but then started doing some of the same work as Exchanger

o Exchanger expanding – hiring new e/eesUnion brought common employer application- Premetalco argued that activities were not being carried on through two divisions

Case law:- Diamond International Trucks Board found that two intra-corporate divisions could be

common employers (Board questions logic of this decision)

Reasons two divisions should not be common employers- Not consistent with purpose of common employer applications (i.e. no need to pierce

corporate veil)- Not necessary because union could bring ULP complaint or application for reconsideration- Creates a paradox; two divisions either common or separate, but not both- Stretches meaning of word “persons”

Held: Refused to exercise discretion- Application does not seek primarily to defend bargaining rights it seeks to expand them- No evidence that contracting out was affecting bargaining rights of union- Union did not have majority support amongst Thermotech employees (not necessarily

required)

Delay issue: Board refused to dismiss bc of delay bc Union had no means of knowing about type of work going on at Thermotech

IAMAW Local 99 v FinningRule: Common control and direction63

- Day to day management is primary focus- High level strategic control is less significant- Common ownership is not determinative- Not every subsidiary is under common control

Issue: What constitutes common control and direction (does contractee control contractor)?Held: Finning is not a common e/erApplication:- OEM had great deal of operational independence- Customers Services Agreement did not provide unusual level of control- Whether Joint Venture Agreement provided Finning greater control (NO)

• Both parties had significant power• Both could block votes, terminate the agreement• Agreement provided Finning less control than typically exists in parent-subsidiary

relationship- Signs of Finning greater control (no evidence it had or would happen therefore disregarded)

Finning may have ability to exercise day-to-day control Finning could replace McLaughlan as Director

- Board not going to consider contingency when making common employer declaration

Central Web Offset- Central Web (non union) bought Ed Webb (Unionized) (similar businesses)- Central Web was much bigger- As a result of a variety of setbacks Ed Webb was not as profitable as hoped- Central Web decided to sell Ed Webb’s press (key asset) and closed Ed Webb- As a result of closure, the following occurred:

• Paper supplies transferred to Central Web• Ink held on consignment returned• Lease for Ed Webb’s building was surrendered to landlord• Ed Webb name/logo was discontinued and not used• Work transferred to Central Web without interruption• Receivables taken over by Central Web• Sale of proceeds from printing press went to Central Web• Central hired 17 new employees (very few from Ed Web)

Union brought several complaints, alleging that- Central was a successor employer;- Central was a common employer; and/or- The Ed Webb’s certificate should be reconsidered

Successor VS Common e/er- Successor employer provisions apply when there is a transfer

• i.e. an acquisition coupled by a relinquishment of a business- Common employer provisions apply when associated or related activities carried on through

common control and direction- Successor and common employer provisions overlap often when there is a transfer of

corporate assets

Principles of reconsideration- Power to reconsider is plenary independent power

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- Gives ability to adapt to changing conditions- Board can use power to respond to developments not addressed by other areas of the Code- Cannot be used to avoid or shortcut express requirements of the Code- Bargaining agent must still enjoy majority support- Can be invoked outside of window periods- Reconsideration also overlaps when there is intra corporate transfer of assets

o Successor and common employer originally contemplated to overcome changes in legal personality

- However, both successor and common employer declarations have been granted in intracorporate transfer situations

Held: Ed Webb and Central Web are not common employers- Decision to transfer Ed Webb’s operations was not motivated by anti-union animus, but

legitimate business reasons- No labour relations purpose to extending Ed Webb’s bargaining rights to Central Web if Ed

Webb went out of business

Held: Central is a successor employer/bound by existing certificates and CA- Close scrutiny required of intracorporate, non-arms length, transfers - There was an appropriation of the “life blood” of Ed WebImportant factors in favour of successorship: - sales, management staff transferred to Central- joint managers focused efforts on Central- Large work contract transferred to Central- Central began appropriating Eds soft assets almost immediatelyLess important: sale of press w/ proceeds to Ed web

Unfair Labour Practice- Union also brought several unfair labour practice complaints

o Upheld: sold press and closed business w/ 12 hours noticeo Obligation of e/er to disclose to union anything that will seriously impact e/ees as

soon as decision is made- Central refused to hire union aligned Ed Web e/ee

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