INTRODUCTION

Overview of the Change in Unionization

Advantages vs. Disadvantages of Unions

CHAPTER 1 - INTRODUCTION

Three Regimes that Regulate the Employer/Employee Relationship

(1) Common law Contract of employment
(2) Collective Bargaining
Historical Context
Collective Bargaining
(3) Direct Statutory Regulation
Legislative Change
Problems with Democracy in the Collective Bargain

Philosophical Descriptions of Labour Law

Constitutional Issues
(1) Section 96 (Creates Courts and Gives them Powers)
(2) Division of Powers
(3) The Charter

CHAPTER 3 – INTRODUCTION TO COLLECTIVE BARGAINING POLICY

CHAPTER 4 – STATUS UNDER COLLECTIVE BARGAINING LEGISLATION

Introduction

Who is an Employee
The Common Law Test
Dependent Contractor
Near Employees
Excluded Employees
Domestic and Agricultural Workers
Current State of the Law (Public Service of Canada v. Northest Terrotires (Commissioner))
Professionals
Public Employees
Security Guards (LARRY THINKS THIS IS MUCHO INTERESTING YA YA)
Managerial Employees (“arms length approach to Managerial Employee/ Employee relationship”)
Exceptions: When Management Can be Part of the Bargaining Unit:
Who is a Manager
Confidential Employees

Status of Unions: Qualified Trade Unions

Employer Influence

CHAPTER 5 – THE RIGHT TO JOIN A UNION

Section 47 of the Labour Relations Act (ON EXAM READ SECTION 47 KNOW IT)

See Handout 1- Walmart Tool Box To Remain UNION FREE. Walmart has been very successful in making themselves a target which is difficult to organize

Clarification on Terms (Larry’s Defintions, there are varying ones)

A Historical Note

Unfair Labour Practices

70. Employer, etc. not to interfere with unions:
72. Employers not to interfere with employee’s rights (PROTECTS THE INDIVIDUAL)
76. Intimidation and coercion:

Proving an Illicit Motive

Non-Motive Unfair Labour Practices

Applying/ Distinguishing Between Section 70 and 72

Alteration of Working Conditions: The Statutory Freeze

Employer Speech

Solicitation on Employer Property

Union Unfair Labour Practices

Getting Rid of a Union

Engage in Unlawful Strike

Avenues to Stop a Strike

Duty of Fair Representation

Representation during Negotiation’s

Remedies for Interference with the Right to Organize

Prosecution under the Criminal Code (Rarely Used)
Interim Remedies
Remedial Certification

The Professional Responsibility of Lawyers

CHAPTER 6 – THE ACQUISITION AND TERMINATION OF BARGAINING RIGHTS

Introduction

Voluntary Recognition

Certification Recognitiion (ss. 7-11)

Comparison

The Appropriate Bargaining Unit

General Principles
Delineating the Bargaining Unit
Sick Kids Test for Appropriate BU
Scope of Bargainning Unit
First Situation- Voluntariness
Second Situation- Accretion
Bargaining Unit Determination and the Organizing Drive
The Michelin Amendment

Determining Employee Support

Ontario Procedure
Voluntary Recognition

Timeliness of Certification and Decertification Applications

Application for Certification
Bars to Certification
(1) Prior Application Section 7(9) and (10)
(2) Employer Domination Union
(3) Build Up Principle
(4) Timelines
Raiding Situation
Termination of Bargaining Rights (Discretion)

Reconsideration Power

Successor Employers, Contracting Out and Related Employees

Successor Employers
Contracting Out
Trying to Get Around Successorship
Related Employers (Exam along with Successorship)

Alternatives to the Wagner Act Model

Minority Occupation and Unionism
Broader Based Bargaining
Broader Based Bargaining in Quebec
A Proposal for Broader-Based Bargaining in British Columbia
An Employee Council in Every Workplace?

CHAPTER 7 – NEGOTIATING A COLLECTIVE AGREEMENT

Introduction
Statutory Timetable

The Bargaining Freeze

The Duty to Bargain in Good Faith

Purposes of the Duty to Bargain in Good Faith
Content of the Duty to Bargain
Substantive and Procedural Obligations Imposed by the Duty to Bargain
Disclosure of Decisions or Plans Substantially Affecting the Bargaining Unit
Final Offer Selection

Remedies for Violating the Duty to Bargain

Binding Arbitrartion

New Approaches to Collective Bargaining

First Contract Arbitration (not until 1986) NOT A REMEDY!
Board Regarding First Contract Arbitration
Decertification and Raiding Applications
Criteria for Imposing Conditions of First Collective Agreement

CHAPTER 8 – INDUSTRIAL CONFLICT

Introduction
Thresholds for Regulating the Use of Economic Power
A Constitutional Right to Strike?

Legal Prohibition of Strikes and Other Economic Sanctions: The Peace Obligation
Definition of Strike
Actions Constituting a Strike: Common Action or Concerted Activity
The Strike Prohibition and Sympathetic Action
Is Political Protest a Strike?
Economic Sanctions Available to Employers (Lockout)
Definition of Lockout

Unlawful Lockout Examples

Legal Forums Regulating Industrial Conflict
The Role of the Courts
Criminal Jurisdiction
Civil Jurisdiction
The Legal Capacity of Trade Unions to Sue and be Sued
Weber
Civil Remedies: Damages and Injunctions
The Role of Labour Relations Boards (you have rant earlier about this)
Arbitrators’ Role in Industrial Conflict
Awards of Damages by Arbitrators
When are Unions Liable?
Employer Disciplinary Action against Strikers

The Regulation of Picketing

Primary Picketing
Secondary Picketing

Job Rights of Strikers

Employee Status during a Strike
Replacement Worker Laws
Introduction

Tangent Talk
Magna made a revolutionary deal. Agreement: They gave up their right to strike in return for a meeting to ask employees their thoughts on union. Larry says this
was crazy because they gave up their leverage. Steel Workers are now trying to organize Magna Plants
Domar collective agreement was for seven years with a no strike cause and indicated that everything would go to arbitration. This was a lot different than the norm,
which were usually 2-3 year collective bargains. The legislation is designed to minimize disruptions in production and to keep people at work. There has been a
huge shift because of the agreement between the Canadian Auto Workers and the Magna Plants. The real fight in unions today is between union and union not
between management and employee or government and employee. For years the CAW has been trying to get into the Magna plants, and the Steel workers have
generally stayed away from Magna. Now you have this agreement between CAW and Magna which pretty much give CAW a vote. Following this agreement,
the Steel Workers Union has moved into Magna and now want a vote too. Steel workers signed up 40 people went to the labour board to get authority to have a
vote.

University of Windsor Strike

Home grown union, the faculty created their own union; They had a collective agreement, it expired July 1st 2008; When the CA expires this does not mean that
everything goes back, the terms and conditions continue on while you negotiate new terms; One thing that happens as negotiations take place, is that you decide
you need help. You can then contact the Ministry of Labour and ask them to send you down a conciliator. These people are very gifted according to Larry. Windsor
got a conciliator who met with the parties then went back to Toronto and told the Ministry that they would not be able to resolve. The next step from this would be to
get a conciliator board, or the minister can issue a “no board report” which means that a conciliator board is not feesable. After this happens it is a count down until
the strike. Union needs authorization to call a strike, if this happens you can walk out or lock out. Then the conciliator puts on a different hat and comes back as a
mediator.

Tangent Talk- Walmart Factor

Walmart controls their own unions, that is how large they are. Why this is important is because Walmart is wiping out all these other stores. So what
happens is the other stores go to their unions saying we cant compete with walmart, and need reductions in wages. Walmart factor has a huge impact on
people’s choice to unionize. When people try to sign up for unions, Walmart has a hotline to call to prevent unionization. So in the past , when unionization was
attempted, the head office shut down the Walmart and had a meeting with all employees and said “we are Walmart, we don’t have unions” They said they would
close the store if unionization was voted yes. Under the legislation as it existed at the time, the union went to the Ontario Labour Relations Board and complained
that the Employer was too intimidating etc. and destroyed any effect of secret ballot and asked for the remedy to grant certification of union based on the atrocious
conduct of the employer, and the Board said yes. But then the government changed, and new government took this power away. They recalled a vote.

#Overview of the Change in Unionization

Decline in Union Increase in Union
In Ontario about 4 million (30%) of employees belong to unions
 In the private sector is shrinking it is down from 30% to about 17%  In the public sector was growing it is up to approx. 70% (Government)

 There are all kinds of reasons for the decline in unions 1. Changes in  Alberta typically has the lowest rate of unionization
the type of work 2. The makeup of the work force 3. Changes in the work
place  2004- milestone of the number of unionized women outnumbering
unionized men
 Modern labour practices were modeled on an economy which has not
existed for a long long time. Labour Relations Legislation is designed to  Older workers and women more likely to be unionized than young
work on generally stable, full time, manufacturing sites. Today a lot of the full workers and men
time manufacturing jobs are disappearing, perhaps the labour relations
legislation is out of date?  Full time employees more likely to unionize than part time

 Work force is changing too, a lot younger, less white and more female

 The real decline in unionization was the air traffic control strike in the
USA. This was where they went on strike and Regan fired all of them.

Handout: Supreme Court Affirms Labour Rights

Advantages vs. Disadvantages of Unions

Advantages of Unions Disadvantages of Unions

Employee  Hire Wages  Union dues
s  Job Security (s. 96(4)(c) reinstatement)  Cannot negotiate your own salary
 Don’t have to negotiate your own contract. The union negotiates  Union can negotiate you right out of your job
the terms and conditions of your employment.
 Generally safer, working conditions better
 Way ahead of govnt when it comes to policy and its implementation
for rights eg. Sexual harassment, racism etc.
 You can rely on the union to file your grievances, you do not need
to run to your boss
 Social advantages-union activities
Managem  Centralized employment, one contract rather than a bunch of  More costly
ent individual contracts  Loss of economic freedom and decision making authority (affects
 May give you access to bid on more K than those who are not small businesses the most)
unionized  There are never no contracting out agreements
 Less turnover  Lay offs, No incentives outside K
 Labour cost certainty, control over your expenses
Chapter 1 - Introduction
Three Regimes that Regulate the Employer/Employee Relationship

(1) Common law Contract of employment

Alan Fox, History and Heritage: The Social Origins of the British Industrial Relations System
 The common law treats employers and employees as free and equal contracting parties in the buying and selling of labour
 Around the period from the 1500’s to the 1600’s, we see a transformation from the feudal system (birth determines your employment relationship) to the
current contractual approach
o The concept of freedom of contract peaked during the industrial revolution (1700’s) when there was extremely high demand for labour
o The normative justification for the contractual approach was freedom; however, for those who did not own property, this was only “apparent”
freedom
 The notion of using the criminal law to enforce individual contracts of employment persisted in early Canadian legislation. The Master and Servant Act
provide that an employee who in violation of his contract refused to go to work or obey lawful command, was guilty of an offence.
o All we have left of this today is section 422 of the Criminal Code, which makes any person “who wilfully breaks a contract” guilty of an offence
when he or she knows or reasonable ought to know that the breach will “endanger human life… cause serious bodily injury,… expose valuable
property.. to destruction or serious injury” or disrupt public utility or railway service.
 A saving provision permits a work stoppage by employees engaged in a collective bargaining dispute, provide that all relevant labour
legislation is complied with.

(2) Collective Bargaining

Donald D. Carter, Geoffrey England, Brian Etherignton, & Gilles Trudeau, Labour Law in Canada 5th ed.
Historical Context
 Until the 19th century, collective bargaining was faced with great hostility (courts would use criminal, tort, common law to thwart unions)
 The first moves toward legalizing unions began in the late 1800’s in the years prior to confederation, unions began to work on a dual track strategy
 WWI was very important for trade unionism- doubling of union membership
 The postwar discontent is symbolized by the Winnipeg General Strike of 1919, where the vast majority of the city’s workers demanded union
recognition.
 In the 1930’s there was a major economic failure which led to a very open recognition of failure of CL to protect vulnerable workers
 The Great Depression led to the introduction of the Wagner Act in the USA – the first North American collective bargaining statute on which all
subsequent statutes were based – introduced a regime similar to what we see today:
o Statutory process for certification of unions as exclusive bargaining representatives
o The right to join a union of choice
o Introduced unfair labour practices prohibiting employers from interfering with the right to join a union of choice
o Created a statutory obligation to bargain in good faith
o Created an administrative tribunal to enforce the new regime (this removed the issue from the courts)
 WWII was a period of rapid industrialization and trade union growth.
 The Canadian version of the Wagner Act was enacted in 1944 under the War Measures Act and was known as PC#1003 – it added two important
 features not present in the Wagner Act: (1) Outlawed strikes during the term of the collective agreement – peace obligation (2) Imposed mandatory
grievance arbitration

Collective Bargaining
 CB is based on the realization that the usually inferior economic position of the employee
 CB legislation does not impose terms of the employment contract – it simply stipulates the conditions under which the employer will be compelled to
bargain with the union rather than the individual employee
o This position is supported by liberal pluralist schools of thought because it overcomes the inequality of bargaining power while upholding freedom
of contract

Larry Tangent
o Many people think our system has broken down and does not work: Larry disagrees success rate- 95% of CA are achieved without dispuptions, we are
not in constant stae of work stoppage
o Note that when work stoppages occur, they are generally of a very short, short duration. Most strikes in Ontario last for a couple of days and if a work stoppage
is being affective as in causing damage to the employer or to the public, you will be forced back to work via statute.
o Some sectors (essential services) are not allowed to participate in work stoppage. For example- Police

(3) Direct Statutory Regulation

 This includes employment standards legislation on such matters such as minimum wages, maximum hours, and health and safety matters.
 Until recently, the legislation was seen as having a very subordinate role – in that it provides very basic protection to employees who remained outside the
reach of collective bargaining: 40% of the workforce remains beyond the reach of collective bargaining.
 In Ontario, the Labour Relations Act serves six functions:
o 1. Provides the rules for union organization
o 2. Prohibits unfair labour practices
o 3. Sets out a process for collective bargaining
o 4. Makes provisions and recognizes that sometimes negotiations break down
o 5. Establishes a grievance arbitration process
o 6. Creates a Labour Relations Board

Legislative Change
 What you are trying to do in the legislation is find the appropriate balance, which is difficult. You are trying to protect workers and employers interests and
keep in mind the impact the legislation will have in society in general

Bob Rae Introduced all kinds of initiatives, that did not go anywhere near as far as the unions wanted them to go, but were still seen as radically pro
union.Disappoiinted a lot of people
Harris  Wanted to dramatically weaken the power the trade movement of Ontario, and make Ontario a more business friendly
(Conserv environment.
ative)
 Legislation mandated that every employer w/ unionized work force, give employee a pamphlet with detailed info on how to
de-certify union

 This push for democracy was based on the premise that people should be able to choose if they want to be in or out of a union.
Note that democracy in Labour is different b/c of the power imbalance between employees and employers.

 removed reinstatement for unfair labour practices / also required secret ballot for votes

 the Remedial Certification provision pre Harris motivated employers to act fairly, the combination of remedial certification and first
contract arbitration said to employers, if you act unfairly you will get a union imposed upon you. This was a huge disincentive to illegal
activity.

 The Harris government removed remedical certification- this DRAMATICALLY changed labour relations in Canada and basically
said to employers you can do and say whatever you want.
McGunity Thought democracy was still very important, didn’t want to go totally pre harris system but they did Reintroduced Remedial certification
The trade off, is the quick vote process: (1) you must have secret ballot (2) election campaign will be very short

Problems with Democracy in the Collective Bargain

47. (1) Except in the construction industry and subject to section 52, where a trade union that is the bargaining agent for employees in a bargaining unit so
requests, there shall be included in the collective agreement between the trade union and the employer of the employees a provision requiring the employer to
deduct from the wages of each employee in the unit affected by the collective agreement, whether or not the employee is a member of the union, the amount of the
regular union dues and to remit the amount to the trade union, forthwith.
 This section (RAND FORMULA) = no free riders, people should not be able to remove themselves from the obligation of paying and contributing to
unions
 LARRY PROBLEM: when people are signing ballots which could result in them loosing there job, shouldn’t they know about this potential outcome.
o Walmart believes that employers have the right to that info. And that freedom of speech says they are entitled to that information.
o The reality is that in some areas, voting yes for union, will result in a loss of job. This is not like normal democratic processes there are a lot of
other factors involved.

Larry Tangent on Replacement Workers

 If Strike How to Keep Working Going: When NDP came into power they changed the Current Situation
Law:
 you managerial team and yourself, Prohibited hiring of replacement workers Mangagers can continue to work
Prohibited employees part of BA to cross the picket People in BU can choose to come back to work
 or employees who chose to stay at work, line If any shortfall bring in replacement workers
(This was all subsequently reversed by Harris
 or hire replacement workers. Governemnt)

Philosophical Descriptions of Labour Law

Section Piece Description
 There has been a major economic transformation over the past two decades that has involved extension of markets and
Gordon a retrenchment of government, more open economic borders, a new “technological paradigm” and an ongoing shift to
Betcherm service and information based activities 🡪 this has had a significant impact on our working lives.
an et. al,  Canadians are uncertain about this “new economy” and its labour market implications for two reasons:
Training o The mediocre performance of the 1990’s (unemployment, slow growth, stagnant real earnings)
The for the o The recognition that the rules of the game have changed and no one is quite sure what the new ones should be.
Emerging New
World Economy
 Two dramatic trends are increasingly challenging the traditional capacity of domestic labour law to promote justice in the world
Patrick of work:
Macklem, 1) The introduction of flexible forms of production, where, relying on an increasingly versatile labour force, and motivated by
“Labour a spirit of cooperation and generalism, to produce customized products in time to meet ever-shifting consumer
Law demand. This often makes it more difficult to attach responsibilitesi and rights to employers and employees, since this
Beyond new trend often involves businesses being set up in a manner such that they can be dismantled quickly and moved
Borders” somewhere else.
2) The effect of economic globalization is the spread of trans-national corporations that often slice through the
boundaries of traditional geographical and political barriers, potentially putting them beyond the reach of sovereign
power. Corporations now enjoy an unprecedented level of capital mobility.
Three new modes of regulation are forming that have the potential to promote just employment relations at home and
abroad:
1) The International Labour Organization 🡪 articulate labour standards which all states must comply with as a matter of
international law. Recently, the ILO has begun to push for state recognition of a core subset of international labour
Macklem rights
(cont’d) 2) There has been a significant push to underscore the significance of international human rights norms in general and labour
standards in particular among international institutions, states, and non-state actors.
3) Corporate codes of conduct that impose normative, if not legal obligations on firms to treat employees fairly and in a
non-discriminatory manner.
Thesis: Those primarily responsible for production – employers and employees – possess identities that are increasingly
difficult for the law to comprehend, while the institutions in which they operate – corporations – appear to exist beyond the
reach of sovereign power.
“Unions were very important Historically, and did a lot of good in advancing social justice and workers rights, but we
Larry don’t need unions anymore because workers are protected by legislation”
Tangent  The problem with this way of thinking is that as government change and provincial legislation changes, and in addition
most employment standards legislation don’t apply to a lot of workers.
Are Unions  Unions are aimed at keeping people at work
Outdated  The CB and unions in this sense is beneficial to employers ad society in general, it tells people to keep working. If
people want a union, don’t strike, don’t damage, don’t riot. Once the union is in place, if you are angry you keep working
and we will do it organized way. If you get to a point that you cannot reach a new agreement on CA even when the old
one expires you cannot go on strike. In order to get into a legal strike position it is a complex and time consuming process.
There are many hurdles under the law that you must conclude. If you do go on strike
 Labour law in Ontario and Unions are designed to keep a lid on problems, it is civilized, if we did not have unions or
the opportunity for unions the primary purpose of the legislation that governs this is to keep a very civilized economic
environment to minimize disrup. Of work.
You do not have a right to join a union, you are “free” to join one if you so choose.
 Brian  During the debate which preceded the Canada/US Free Trade Agreement – two important issues were: (1) the direct
Our New Langille, impact upon Canadian jobs, and (2) the indirect impact of the agreement upon Canadian labour/ social policy
Problems “General  Debate was about all or nothing, either accepting the agreement or rejecting it. The two main positions staked out in the
Reflection debate have been identifies as “STATUS QUO/NATIONALIST” and “CLASSIC FREE TRADE” there was a third much less
s on the well publicized is characterized as ‘ADJUSTMENT FOR LOSERS”
Relations  With respect to the second issue, the argument was that putting Canada’s more generous labour policy into competition
hip of with the deregulated market of America would put inevitable pressure on the Canadian lawmakers to follow suit in order for
Trade and firms in Canada to remain competitive 🡪 there has been some evidence to support this in the wake of the FTA.
Labour”  Thesis: Our ability to establish our own domestic labour standards has been eroded. These standards will be, to some
extent, established internationally (because of pressures to change labour laws to remain competitive). The issue is how,
not whether, they will be established internationally. The issue is whether they should be established by the international
marketplace in labour policy or via international agreement.

Constitutional Issues
 There are three types of constitutional issues:

(1) Section 96 (Creates Courts and Gives them Powers)

 Historical Arguemnt: S. 96 of the Constitution = judges of the Superior Courts in the provinces are to be appointed federally.
 The argument was that the CB regimes of the provinces shifted the decision making power from the Superior Court to specialized tribunals and,
therefore, violated s. 96 of the Constitution
 The compromise arrived at by the SCC was that provinces were able to create tribunals to interpret and enforce social legislation, no legislature could
exempt any tribunal from judicial review. (Crevier v. AG (Quebec), 1981.) But see s. 116 – if there are questions of jurisdiction, it can be reviewed.

116. No decision, order, direction, declaration or ruling of the Board shall be questioned or reviewed in any court, and no order shall be made or process entered,
or proceedings taken in any court, whether by way of injunction, declaratory judgment, certiorari, mandamus, prohibition, quo warranto, or otherwise, to
question, review, prohibit or restrain the Board or any of its proceedings.

 Administrative tribunals have a plethora of remedies, some of which are not available to the court:
o They can issue a cease and desist order
o They can provide compensation (damages)
o They can order you reinstated at your job (s. 96(4)(c)) - (not available to the court)
o They can also pursue a prosecution in the Ontario court of Justice (s. 104)
 There are also things Administrative Tribunals cannot do- injunctinve relief
 NOTE: Damages awarded by Admin Tribunal awarded to individual, whereas a fine administered by the state and paid to the goverenment

Tangent- Section 42, Judicial Review the Administrative Tribunal’s Relationship with the Courts (GOOD ONE)
  Section 42 of LRA provides option to employers known as final offer vote.

 The section says that an employer during negotiations can declare thier current offer to be there final offer, and then under s. 42 they can go to the LRB
and can force a vote on that “final offer”

 There was a caes that used this s. 42, but then wanted to rescind that offer because they thought they could go after the union and get even more
concessions.

 The employees however thought the “final offer” was the best they could do, so they held there own vote and voted on it.

 They said because the word “shall” in the legislation that forces the management to hold vote.

 The LRB held that this “shall” did not prohibit the employer from recinding that offer.

 Judicial Review comes into play here, because when you want to appeal an administrative boards decision such as the LRB, you bring it to the courts.

 In this case, an agreement was reached and they never had to go to court.

 Main Point: when you think the LRB has screwed up, you will be on your way to the court.

 Section 116 says that board decisions cannot be reviewed. Larry says, that this privative clause is really of no effect, because the board cannot hide
behind this clause. If the court wants to review LRB or any administrative tribunal, they will do it by simply characterizing the decision of the board as being
in excess of jurisdiction.

(2) Division of Powers

 GENERAL RULE: the provinces have jurisdiction over labour and employment matters in industries that are within provincial legislative authority (under
the property and civil rights head of power), the federal government has jurisdiction over labour and employment matters in industries that are within
federal legislative authority (under the trade and commerce head of power.)
 While this issue over jurisdiction is somewhat historical, it could potentially arise in the following situations:
o During the time when a workforce attempts to become organized – the employer challenges the jurisdiction under which the workers are
organizing
o In the context of a change in nature of business (e.g. when a provincial trucking company expands shipping across provincial or international
borders)
o An attempt by either level of government to regulate a company’s labour relations
o Note that there is an incentive to organize under the federal legislation, but it is not always possible (see Toronto Electric Commissions)
 In early decisions, the courts interpreted the constitution in a manner that placed employment law under the authority of the Federal government by virtue
of their trade and commerce power. (Labour Law in Canada was not explicitly listed under one of the enumerated heads of power)
  However, major shift as a result of Toronto Electric Commissioners v. Snider, the JCPC held (in 1925) that regulation of labour relations was a
matter for provincial regulation as affecting property and civil rights under s. 92(13)
o The are a few exceptions:
 (1) In case of national emergencies
 (2) In industries specifically listed as federal works or undertakings (ie. Banking, railways etc.)
 (3) Operations that are integral to a federal work or undertaking (i.e. radio and television, aviation, postal services, etc.) 🡪 see pg. 86
 Two Step Test to Determine:
(1) Is there a core federal undertaking
(2) Is the work being done in relation to that core federal undertaking “vital, essential and integral” to the core federal
undertaking. NOTE: the identity of the employer is not the deciding factor, it is the type/ degree of work that matters.
 Example: At a bank, when trying to organize the employees the question will be are the employees vital,
essential and integral to the banking (federal undertaking), the answer would be yes. There are a lot of other
people that did work relating to the bank, ie. The construction workers who built the bank, are they vital, essential
and integral, case law says no. Work in relation to a core federal undertaking are generally not seen to be vital,
essential and integral.

 (4) Interprovincial works and undertakings, pursuant to s. 92(10)

 Trucking operations; railways; atomic energy
 (5) Federal Government Employees
 (6) POGG
 (7) Federal Declaratory Power (LOOK UP FURTHER)
 Mining is a difficult area to distinguish jurisdiction.
o For example, if you are mining nickel in Sudbury you will be provincial, or if you are mining uranium you would fall under federal, because the
federal mines are federal. But the people that built the uranium plants fall under provincial.
 Making labour provincial jurisdiction raised concerns that there would be a market in labour policy between the provinces to compete to attract
business
o However, because all of the provinces ultimately followed PC #1003, Canadian labour law actually became more advanced than American law
because Canada had “11 laboratories” for labour policy experimentation
o It remains to be seen whether this trend will hold up in the new global economy or whether we will see a “race to the bottom”
 A key question to consider is when jurisdiction is made an issue, who gets to make the decision – the federal or the provincial body?
o Generally, the answer has been the provincial administrative tribunals.
o Note that just because work takes place on federal land or provincial land, this is not determinative of jurisdiction.
 Example: Aboriginal Communities of Canada are kind of like a third jurisdiction even though they fall under federal. But when aboriginals
on reserves are engaged in employment, the fact that they fell under the federal Indian act, and the fact that the lands were federal land,
this did not preclude their work falling under provincial jurisdciton.
 Scugog: Indians created there own Labour Relations Act. The band argued that neither the federal or provincial governemtn had the
jurisdiction to assert labour jurisdiction over them, pursuant to s. 35 of the Constitution. The Ontario Labour Relations Board ended up
hearing this issue, and rejected it. The OLR found that there was provincial jurisdiction and CAW could unionize. The aboriginals
 appealed, they failed, and the appeal court said that this would give Indians too much autonomy. Leave to appeal to the SCC was
denied- CRAZY
o Note Extra Provincial Jurisdiction
 Example: Ontario Board only has jurisdiction over employment done in Ontario, so if you want to prevent unions you can move your
operation to another province, thus out of the jurisdiction. Provincial Boards do not generally have extra provincial jurisdiction
 Note, that not the totality of work done for a company has to be done in the same province for it to fall under provincial legislation.
 The test for determining the consitonal jurisdiction for an undertaking involving extra-provincial carriage is whether or not the
work outside the province can be characterized as “regular and continuous” so as to constitite a “connecting or “extending undertaking (Re
Windsor Airline Limosine Services)

Case and Facts Holding Reasoning and Ratio Notes and Exceptions
Canadian Pacific Railway v.  The  Railway argued that the hotel was an integral part of its  There was little
Empress Hotel, JCPC 1950 (pg. hotel was nat’l. operations. evidence to distinguish
87) not a federal  A company may take on multiple undertakings – if the Empress from an
 Employees of a hotel at the undertaking primary undertaking is federal, other provincial undertakings independently owned hotel
end of a national railway line will not become federal in character unless they are integral
attempted to organize under Federal and vital to the company’s primary undertaking.
legislation
Construction Montcalm Inc. v.  Not a  Provincial MWC wanted to recover wages, etc. on  SCC was sharply
Minimum Wage Commission, federal behalf of company’s employees; Montcalm argued MWC divided.
SCC 1979 (pg. 87) undertaking could not collect for construction work done on federal land for  Construction of an
 The (provincial) company a federal undertaking. airport was far removed
was doing construction work on  Doing work on Crown land does not necessarily bring from aviation and aerial
Federal lands (an airport) the employees within Federal jurisdiction – the work must be navigation (which are
 Montcalm arguing “enclave integral to the federal undertaking subject to federal
theory” 🡪 distinct, enclosed federal  This means that each task must be scrutinized to jurisdiction.)
area lying within provincial determine how essential its relation is with the core purpose of  Wilson: key may be
boundaries. the undertaking. whether the company is
exclusively doing federal
work.
Re Windsor Airline Limousine  Not a  The test for determining the constitutional jurisdiction of  Analyze the
Services, Ont. Gen. Div 1980 (pg. federal an undertaking involving extra-provincial carriage is whether frequency of
89) undertaking or not the work outside the province can be characterized as extra-provincial travel,
 Taxi company claimed they “regular and continuous” so as to constitute a “connecting “ compared to overall
were federal because they made or “extending” undertaking. business
trips to the U.S.
Murrin Construction Ltd. v. Union,  The  The work performed by Murrin was vital, essential, or  A critical
BCLRB 2002 (pg. 92) federal integral to CN’s operations, and hence falls within federal consideration is the degree
 Union wants to represent labour code jurisdiction of functional integration
construction workers under applied.  It is CN’s dependence on Murrin that is relevant – not  Safety was vital,
provincial legislation 🡪 workers vice versa essential and integral
did work for CN Railways.  Note that the work was not exceptional or casual, but
 Company claimed they normal, habitual, and ongoing.
were Federal employees – 80% of  The percentage of work done in relation to the total
its total work was done for CN in work done by the company, and how dependent is the core
British Columbia federal undertaking on the work in question
 Two step test for federal jurisdiction: 1) Are the
 This case lays out the employees involved somehow linked to a core federal
governing test in undertaking 2) If yes, is the work that they are doing vital,
non-transportation cases where essential, or integral to that federal undertaking?
jurisdiction is in issue.

(3) The Charter

 Relationship between the Creation of the Charter and the Labour Movement: Many people involved in Charter were labour people
 The issue with the Charter is the extent to which collective bargaining legislation violates employees’ individual rights and freedoms under the Charter.
 When the Charter was being drafted, unions and employers both thought that they could use it to advance their positions,
o Unions were disappointed that the Charter doesn’t include a right to strike, right to join a union etc. (though Ontario legislation says you are free to
join a union of your own choice and participate in its lawful activities (s. 5) – but note that there is no right to strike.

Section 5. Every person is free to join a trade union of the person’s own choice and to participate in its lawful activities.

 Over years, however, the net effect of the Charter on the labour movement has been minimal
o the Court took the approach that these were political and social issues and that the SCC was not the proper forum to address these things.

Note Wilson says it is possible the cases below have effectively been overruled by the BC Health Case/ Fraser
Case/ Facts Issue Ratio Comments
Reference Re Public Services Union argued that the guarantee of The SCC, basically speaking, Note that this was a reference case,
Employee Relations Act freedom of association in s. 2(d) of rejected this contention. There is no and here the court had no choice but
(Alberta), SCC 1987 (pg. 450) the Charter included the right to constitutionally protected right to to get involved
more on this case in Chapter 8. bargain collectively and the right to strike
strike.
Lavigne v. OPSEU, SCC 1991 Lavigne didn’t like the union. Argues SCC holds that the use of union NO FREE RIDERS, victory for
(pg. 740) more on this case in that the union’s use of his dues, dues for political purposes did not Labour saying that there is a lot of
Chapter 10. which he had to pay, violated his violate the Charter. They found that pros to union so you have to pay
Lavigne was a teacher in a constitutional rights of freedom of the OLRA strikes the proper balance your dues.
community college that had a expression (s. 2(b)) and freedom of between promoting collective
collective agreement with association (s. 2(d)). bargaining and respecting as far as
OPSEU. Under the agreement, possible the rights of individual
there was a “Rand Formula”, employees.
which provided that teachers had
to pay union dues as a condition
of employment, but were not
required to join the union.

Dunmore v. Ontario (AG), SCC Do you have a right to unionize Bastarache J., however, found that LARRY: this is no more than a “club”
2001 (pg. 224) 🡪 more on this pursuant to the right to freedom of agricultural workers can associate in for agricultural workers. They can
case in Chapter 4 assocaiton? Held: NO you have the effect “unionize” this was under the make suggestions, but the employer
Agricultural workers challenged right to join a club. right to associate in the Charter but is not bound to listen.
their exclusion under s. 3 (since this did not allow them to strike or
amended) of the OLRA engage in collective bargaining. KEEP IN MIND BC HEALTH AND
preventing them from unionizing But the real result of this was FRASER RECENT CASES THAT
as being contrary to their freedom legislation being enacted which, CHANGE THE LAW
of association rights (s. 2(d)) and while it did give agricultural
equality rights (s. 15) of the workers the right to unionize, did
Charter. not give them the right to strike
BC Health Care 2007 Does this mean we have a Constitional right to bargain is not
IMPORTANT constional right to union? NO. synomaous with a constitional right
Case gave a constitional right to to a collective agreement. However,
bargain. It is a procedural right there is imposed on employer duty to
not a substantive right bargain in good faith.
Advance Cutting Case Quebec Do you have the right to be free from you can be compelled to join a union CAN COMPEL UNIONIZATION,
2001 union pursuant to the freedom of and your right to freedom of huge victory for labour
In province of quebec if you wish association? Held: NO. association allows you only to
to work as a construction worker choose “which” union you want to be
you are required by law to join a in
union, this law was challenged
Pepsi-Cola Canada v. Retail, Can you secondary picket? Held: This case seems to imply that you Secondary Picketing is leaving you
Wholesale and Department SCC essentially said that secondary can engage in secondary picketing, work site and interfere with the work
Store Union, SCC 2002 (pg. picketing is not illegal in Canada, as long as it is not effective! of suppliers and buyers
532) 🡪 more on this case in so long as it is lawful. Lawful relates to both the criminal
Chapter 8. law and torts 🡪 there appears to be a
The union wanted to picket a To prevent secondary picketing the tort of interference with contractual
number of retail stores that sold victim of secondary picketing can relations, but the SCC said that this
Pepsi, but had no corporate claim that the picketers are was informational picketing, and
connection to the Pepsi-Cola breaching a tort, they use odd, non there was no such interference in
company (secondary picketing) used torts. this case.

But the Charter does give you the opportunity to BE CREATIVE, and create initatives for resolving labour disputes.

Tangent- Walmart Freedom of Expression in Saskatchewan

Walmart in expression has had some success with the charter making claims that their freedom of expression right gives them the right to tell employees that “we
are Walmart and we do not have unions” Larry says that Walmart doesn’t need the charter to get this point a cross, people know.
Chapter 3 – Introduction to Collective Bargaining Policy
 The shift from the individual contract of employment to the collective bargaining system rested on complex normative and empirical arguments
 Collective bargaining is a procedural mechanism designed to address the perceived limitations of the common law regime

Piece Description
Theoretical Justification for Collective Bargaining
 There are two main rationales for the existence of collective bargaining:
o 1. To create an industrial democracy by providing employees a voice with which to participate in decisions that affect their lives
(collective bargaining has inherent value no matter how good or poor working conditions are)
o 2. To overcome inequality of bargaining power that exists between workers and employers
Certification (USA): Voluntary recognition was initially the preferred means of establishing a collective bargaining relationship. But
employers quickly learned that it was better to refuse to voluntarily recognize unions – as a result, labour boards turned to certification to
compel employers to bargain.
The Canadian Variant
 Labour law in Canada is more favourable to unions than in the U.S. for a number of reasons:
o Certification can take place on the basis of cards (not anymore 🡪 see s. 8(2))
o Procedures before the labour board are more expedited
o Certification can be obtained with less than a strict majority – the test is “have the employers tactics rendered it impossible to get
Roy Adams, the true wishes of the employees (S. 11 – remedial certification)
Individual o First contract arbitration allows an arbitrator to settle the contract where the employer refuses to negotiate (s. 43)
Relations Bargaining Structure
under Liberal  The employees to whom a collective agreement applies are known as the bargaining unit.
Democracy  The bargaining unit can be a group of employees in a single plant, a class of employees working in all the plants of a single employer, or
even all of the employees of a certain class who work for any employer who is a member of an employer’s association.
 Decentralized bargaining has advantages for workers – individual workers are better able to see the personal relevance of negotiations.
The drawbacks, however, are that the parties are only interested in their own circumstance
 However, with broader-based bargaining, the negotiations are much more public which requires that other stakeholders interests be
taken into account
o The ideal situation may be to have general issues negotiated at the collective level with specific issues at the individual level
Collective Bargaining Coverage
 A major reason that Europe has a greater proportion of workers covered by collective agreements than North America is the doctrine
known as extension of agreements – the government can extend a collective agreement to other firms in the industry
 In most countries, union density is much lower than union coverage – this is the result of the free rider problem: there are a lot
of people who are covered by collective agreements but are not union members (this is the case in Ontario)
o In Canada, the Rand formula compels those covered by collective agreements to pay union dues
Scope of the Issues
  Generally, there is no restriction on the scope of the issues that can be covered by a collective agreement
o The U.S. distinguishes between permissive issues (those that need not be negotiated unless both parties agree to discuss them
and mandatory clauses (those that must be negotiated at the request of either party)
Bargaining Process: In North America, a single written agreement covers all negotiated issues and lasts for a specific duration (minimum 1
year in Ontario) the individual employment contract is replaced by the collective agreement
Contract Ratification and Bargaining Authority: In North America, if a tentative agreement is reached in any bargaining round that
agreement is almost always submitted to the membership of the union for ratification; in Europe, if the negotiating unit of the union agrees to
an agreement, generally it does not need to be ratified.
Legal Status of Collective Agreements: Written collective agreements are legally binding almost everywhere, except for Britain, where
they’re viewed as gentleperson’s agreements.
Legality of Strikes: The right to strike is now considered a fundamental principle of liberal democratic nations. In most jurisdictions in
Canada, unorganized workers do not have the right to strike. In most Cdn. jurisdictions, any concerted action to disrupt the production of the
employer (slowdown, work-to-rule) is considered a strike.
Adams Grievance Procedures: To settle interpretive disputes, labour law has developed the grievance procedure. The final step in the grievance
(cont’d) procedure is binding arbitration
Right to First Interpretation: In North America, if there is a dispute over a term in the agreement, the employer has the right to first
interpretation
Collective Bargaining and the New Industrial Relations: While negotiations are by definition adversarial, proponents of the New Industrial
Relations suggest that companies are most productive if they are able to involve employees in their work rather than simply eliciting
unenthusiastic acquiescence to orders given.
Conclusions: While Canada has been more favourable to rights to organize, Canadian unionization levels are still very low (i.e. 17% private;
71% public; 30% overall) particularly compared to Europe
Larry’s Notes: Unions and Management typically hate each other and most companies would prefer not to unionize
 For some groups (particularly unions) compulsory arbitration is benefifical they do better than compared to when they negotiate on their
own. The reality is union don’t like mandatory arbitration.
 Some small companies have been sacrificed along with their employers to make the point that concessions are not appropriate for
a particular union.
 The view of unions as organizations whose chief function is to raise wages is seriously misleading. Non Wage Effect = by providing
Freeman & employees with a voice both at the workplace and in the political arena they positively affect the functioning of the economic and
Medoff, social system.
“The Two  Two Mechanisms for Dealing with Divergences: (1) classic market mechanism of exit and entry, injdividual monopoly and (2) the
Faces of collective voice (Trade unions).
Unionism” o Exit: They can effect the economic system by leaving bad employers and moving to good employers (exit and entry)
o Voice: They can affect the social system through their ‘voice’ – voting, discussions, bargaining, etc.
 Union Effects on Economic Efficiency Union Effects on Distribution of Income Social Nature of Union Organization
Monopoly View
Unions raise wages above competitive levels, Unions increase income inequality by raising the Unions discriminate in rationing positions
leads to too little labour relative to capital in wages of highly skilled workers
unionized firms
Union work rules decrease productivity Unions create horizontal inequities by creating Unions (individually or collectively) fight for their
differentials among comparable workers own interests in the political arena
Unions lower society output through frequent Union monopoly power breeds corrupt and non
strikes democratic elements
Collective-Voice/ Institutional Response View
Unions have some positive effects on Unions standard-rate policies reduce inequality Unions are political institutions that represent the
productively—by reducing quit ates, by among organized workers in a given company or a will of their members
inducing management to alter methods of given industry
production and adopt more efficient policies,
and by improving morale and co operation
among workers
Unions collect information about the Union rules limit the scope for arbitrary actions Unions represent the political interest of lower
preferences of all works, which leads the firm to concerning the promotion layoff recall etc. of income and disadvantaged persons
choose a “better” mix of employee individuals
compensation and a better” set of personnel
policies
Unions improve the communication between Unionism fundamentally alters the distribution of
workers and management, leading to better power between marginal (typically junior) and
decision making inframarginal (generally senior) employees, ausin
union firms to select different compensation
packages and personnel practices than non union
firms
Chapter 4 – Status Under Collective Bargaining Legislation
Walmart Tangent Continued
Note: The LRB does not like applications that involve removing a chunk from a collective bargain agreement to form a new organized deposit. This is what
Walmart tries to do. But Walmart did it, but note that BEING CERTIFIED AS A UNION DOES NOT MEAN YOU HAVE A COLLECTIVE AGREEMENT. Example is
Walmart. Here the Board gave a collective agreement which was the result of legislation which allowed an arbitrator to impose an agreement based on the conduct
of the employer. Note that the Walmart Collective Agreement only includes the tire, lube and oil section at one store, this is about 9 employees. SO is this really a
big victory? Do not get confused and say that Walmart is now unionizing. Realistically Larry says that the store will probably close because they will discover they
are “not profitable”

Declaration of successor union

68. (1) Where a trade union claims that by reason of a merger or amalgamation or a transfer of jurisdiction it is the successor of a trade union that at the time of
the merger, amalgamation or transfer of jurisdiction was the bargaining agent of a unit of employees of an employer and any question arises in respect of its rights
to act as the successor, the Board, in any proceeding before it or on the application of any person or trade union concerned, may declare that the successor has or
has not, as the case may be, acquired the rights, privileges and duties under this Act of its predecessor, or the Board may dismiss the application.
 When you buy company you get the union. Normally when buying company they will negotiate for chages to be made to the collective agreement, and letters
of understanding will be added to the collective agreement

 It is important to know whether or not the workforce is organized when buying a company

 Labour Relations Act gives unions stability by not letting the sale of a company disorganize them

Introduction
 The main focus of the OLRA is the “general private sector” to which the Act applies
 In Canadian labour legislation, the privilege to engage in collective bargaining is reserved for employees and individuals who fall within the
constitutional jurisdiction of the labour relations board
o This is becoming increasingly difficult to define given the growing variety of contractual arrangements
o Also, certain employees are legally ineligible if they are managerial, work for certain employers, or otherwise work in certain occupations (i.e.
public sector, professionals, essential service emplooyees) 🡪 s. 1(3), s. 3. These types of employees my be barred from collective action or
required to bargain under more restrictive procedures than those set out in general labour relationship legislation.
o Large firms broken down into smaller production units with individual collective bargaining rights may further limit employee bargaining power
o Note that a bargaining unit must consist of more than one person (section 9 of the LRA)
o Policy Consideration- may be time to reexamine who has access to collective bargaining and with what consequences. Aflluent may not need CA
but have best access, whereas un-affluent (musicians etc.) may well need CA but do not have access
S. 1(1) 🡪 “trade union” means an organization of employees formed for purposes that include the regulation of relations between employees and employers
and includes a provincial, national, or international trade union, a certified council of trade unions and a designated or certified employee bargaining agency

 If a worker does not meet the threshold for being considered an employee there are two consequences:
o You have none of the protection provided under labour relations legislation
o You don’t get the exemption from the Competition Act prohibitions against conspiring with others to unduly lessen competition
 Competition Act, s. 45(1) Conspiracy – everyone who conspires to unduly lessen competition is guilty of an indictable offence
 S. 2(1) Products – includes a “service”
 There is a danger that these two provisions, when read together, could capture certain union activities within the Competition Act,
such as strikes, picketing, as concerted activity designed to retrain or injure competition in the supply of services.
 However, 4(1) Collective bargaining activities provides a general exemption for “combinations or activities of workmen or employees for
their won reasonable protection as such workmen or employees – nothing in this Act applies to the activities of workers for their own
reasonable protection or to the activities of unions pertaining to their collective bargaining rights
o Note the law of Tort also comes into play for those who do not meet the threshold. It gives plaintiffs who are adversely affected by certain kinds of
collective economic sancitons the right to sue for damages and unjunctions.
 In order for an organization to be eligible to acquire privileges of a bargaining agent, an organization must have been formed for purposes that
include collective representation of its members vis-à-vis their employer (see s. 1 definition of trade union)
 The logic of collective bargaining equalizing bargaining power has been called into question by recent changes in our economy
o Rapid changes in technology have clouded the definition of managerial authority
o It is questionable whether collective bargaining can even provide those in the secondary labour market with sufficient bargaining power
o As firms break down into smaller production units, it will further limit employees bargaining power
 There is suggestion that the focus should shift from the relationship with the employer to the relationship with the industry

Who is an Employee
 The Labour Relations Act does not generally set out expressly all of the categories of persons to whom it applies – rather it lists the categories of
persons to whom it does not apply 🡪 see ss. 1(3) and 3.

S.1(3) Subject to section 97, for the purposes of this Act, no person shall be deemed to be an employee, (a) who is a member of the architectural, dental, land
surveying, legal or medical profession entitled to practise in Ontario and employed in a professional capacity; or (b) who, in the opinion of the Board, exercises
managerial functions or is employed in a confidential capacity in matters relating to labour relations

s. 3. This Act does not apply, (a) to a domestic employed in a private home; (b) to a person employed in hunting or trapping; (b.1) to an employee within the
meaning of the Agricultural Employees Protection Act, 2002; (c) to a person, other than an employee of a municipality or a person employed in silviculture, who is
employed in horticulture by an employer whose primary business is agriculture or horticulture; (d) to a member of a police force within the meaning of the Police
Services Act; (e) except as provided in Part IX of the Fire Protection and Prevention Act, 1997, to a person who is a firefighter within the meaning of subsection 41
(1) of that Act; (f) to a member of a teachers’ bargaining unit established by Part X.1 of the Education Act, except as provided by that Part, or to a supervisory
officer, a principal or a vice-principal; (h) to an employee of a college of applied arts and technology; (i) to a provincial judge; or (j) to a person employed as a
labour mediator or labour conciliato
 Section 45-48 gives permissive clauses of what is included in collective agreement, what can be included section 51 (TABBED)
o Apart from those express exclusions, the Act applies to all employees in Ontario in industries falling within provincial jurisdiction under the
Constitution
o Once you have begun to work towards getting union, union rights and activities, you will be given LRA protections.
 Section 72 then protects you from unfair termination based on your efforts to organize.
 Section 96(4)(c) also then gives the right to reinstated
 Just Clause Provision: you cannot be dismissed without appropriate cause (theft, insubordination etc) This applies to those already
unionized.
 The claim that certain persons are or are not covered by the Act is often raised at the hearing of a certification application
o Under s. 114(1), the Board may decide such a question under its power to determine “all questions of law or fact that arise in any manner
before it” This gives the board enormous jurisdiction. Note that the status of employee depends on the employment relationship/ scope of
collective bargains

S. 114 (1) 🡪 The Board has exclusive jurisdiction to exercise the powers conferred upon it by or under this Act and to determine all questions of fact or law
that arise in any matter before it, and the action or decision of the Board thereon is final and conclusive for all purposes, but nevertheless the Board may at
any time, if it considers it advisable to do so, reconsider any decision, order, direction, declaration or ruling made by it and vary or revoke any such
decision, order, direction, declaration or ruling.# (2) If, in the course of bargaining for a collective agreement or during the period of operation of a collective
agreement, a question arises as to whether a person is an employee or as to whether a person is a guard, the question may be referred to the Board and
the decision of the Board thereon is final and conclusive for all purposes.

The Common Law Test

 The common law test for determining the existence of employment relationships was set out in Montreal v. Montreal Locomotive Works, 1947 (pg.
102)
o 1. Whether the worker is controlled by the employer / client
o 2. Whether the worker is economically independent, that is, has the characteristics of an independent businessperson (with particular attention
given to the chance of profit and risk of loss to this effect.)

Case and Facts Holding Reasoning and Ratio Notes and Exceptions
NLRB v. Hearst Publications Inc., Must be defined based on CL  Look at surroundings,  Subsequently, various
US 1944 (pg. 210) standards. The newsboys were statute, mischief to be corrected jurisdictions amended their
 At issue was whether employees  Where the economic facts legislation to include
“newsboys” were considered of the relationship make it more “dependent contractors” 🡪 see
“employees” for the purposes of nearly a relationship of below…
collective bargaining employment rather than  TOOK A PURPOSIVE
 Employer claimed that they independent business, with APPROACH
were independent contractors. respect to the ends sought to be
These employees had both achieved by the legislation,
characteristics of indeptendent those characteristics should
contractors and emploees outweigh the technical
classification
 Independent Contractors
are seen as those running a
business whereas employees
are dependent on others.
 This case gave us the
category of “DEPENDENT
CONTRACTOR”
City of Windsor Fire Fighters  Under Ontario LRA  In this case the Windsor
 So here you have a bunch of firefighters cannot be organized, fire fighters could not unionize,
Fire Fighters that were volunteers mind you they can be organized but the volunteer could. This is
and worked sparatically, because under other legislation. Note, that silly cause they were essentially
they didn’t fall under the defination of if you have “firefighters” that do doing the same job.
“fire fighter” under the legislation not fall under the definition of fire
they were allowed to unionize fighter than they can organize.

Dependent Contractor
 Labour boards and courts have constantly struggled with the question of the distinction between an “employee” and an “independent contractor”
 Winnipeg Free Press v. Media Union of Manitoba FourFold Test: (1) control of the relationship (2) ownership of the tools (3) chance of profit (4) risk of
loss.
o Rigid application of these factors led to the exclusion and inclusion of wrong employees. Consequently, some Canadian legislatures adopted
“dependent contractor” provisions, which extended the reach of the term employee to cover some of the most problematic and marginal parts of
the universe of independent contractors.
  In 1975, the Act was amended to include a “dependent contractor” within the definition of employee 🡪 S. 1(1) “Employee” – includes a dependent
contractor but not an independent contractor.
S. 1(1) 🡪 “dependent contractor” means a person, whether or not employed under a contract of employment, and whether or not furnishing tools, vehicles,
equipment, machinery, material, or any other thing owned by the dependent contractor, who performs work or services for another person for compensation
or reward on such terms and conditions that the dependent contractor is in a position of economic dependence upon, and under an obligation to perform
duties for, that person more closely resembling the relationship of an employee than that of an independent contractor

Winnipeg Free
Press v. Media
Union of Manitoba,
MLRB 1999 (pg. 213)
at ¶ 92 applied the
concept of
dependent
contractor

Facts  Free Press is one of Canada’s largest newspapers has mature carriers, carriers are required to attend at a specified depot
each morning to pick up their allotment of papers for their route. Use there own vehicles, have to find their own replacements
when sick.
Reasoning  The Jurisprudence shows that the initial four criterion set out in the Montreal Locomotive Works case have been vastly
expanded. A faily comprehensive statement of all of those can be found by the Ontario Labour Relations Board can be fond in
Algonquin Tavern…
o following factors are to be considered in determining whether a worker is an employee or an independent contractor
– note that the key and overriding factor was the nature and the degree of control exercised over the employee /
independent contractor:
1. The use of, or the right to use substitutes
2. Ownership of instruments, tools, equipment, appliances or the supply of materials
3. Evidence of entrepreneurial activity
4. The selling of one’s services to the market generally
5. Economic mobility or independence, including the freedom to reject job opportunities or work when and where
one wishes
6. Evidence of some variation in the fees charged for the services rendered
7. Whether the individual has become an essential element which has been integrated into the operating
organization of the employing unit
8. The degree of specialization, skill, expertise or creativity involved
9. Control of the manner and means of performing the work – especially if there is active interference with the
activity
10. The magnitude of the contract amount, terms, and manner of payment.
11. Whether the individual renders services or works under conditions which are similar to persons who are
clearly employees
 Look at the degree of independence, the individual, and what they look like when determining if they are a dependent contractor
or not. The tendency is to find them to be dependent contractors because we want to give them union protections.
 However, the Board has indicated that such tests are merely guidelines, and that no particular test or combination thereof will
yield a determinative answer
The focus is on form rather than substance – the economic dependence must be such that it puts the person in roughly the
same economic position as an employee who must face the peril of the labour market.
Held  All newspaper carriers personally employed by the Winnipeg Free Press, in the City of Winnipeg, in the Province of
Manitoba, under a written arrangement and who are assigned specific routes, save and except those excluded by the Act are
employees.

 Depending on the facts of the particular case, a person may be both an employer and an employee (See Fownes Construction Co., Can LRB 1975
(pg. 221))

o Fownes Construction Co: “Another person with several trucks may drive one of these trucks regularly, but because of the total character of his
 business, should not be considered to be “dependent” However, we do not believe that an individual who owns perhaps two trucks, and thus
employs a driver to operate one of them, is necessarily removed from the category of “dependent contractor” There is nothing illogical about
finding that an individual is, at one and the same time, both an employer and an employee and it can also be true that an individual is both an
employer and a dependent contractor. That always turns on a judgment about the facts of the particular case.”

o A very controversial subject is whether workers who have their own employees can be considered dependent contractors
 In BC and Ontario, the labour boards have ruled that they can in certain cases (you can be both an employer and employee)
 The board tends to bend a long way if people in this scenario REALLY want to be an employee, the only time that it becomes problematic
is when there is a conflict of interest/ loyalties between the bargaining unit and the private business.
 But if you look like you are running a business and you have people helping you run that business you are likely to be found as an
independent contractor.

 Different jurisdictions take different approaches to appropriate bargaining structure for dependent contractors. Example: BC and Ontario Codes differ.
 Ontario Labour Relations Act, Section 9(5) of the deems a unit of dependent contractors to be appropriate for collective bargaining, but also
allows discretion to the Board to include dependent contractors in a unit with other employees where a majority of the dependent contractors so wishes. It
depends, in the end, on the facts of the particular case.
o Allows a combined unit, you can have dependent contractors and employees, in the same or different bargaining units.
 Example: there was only one dependent contractor and the rest were regular employees, so in order to protect the dependent contractor
they just shoved him in with the protections given to employees, this is okay!
 The British Columbia provision tends to bring together dependent contractors and other employees in a single bargaining unit, whereas
the Ontario provision favours a more fragmented structure.

S. 9(5) 🡪 A bargaining unit consisting solely of dependent contractors shall be deemed by the Board to be a unit of employees appropriate for collective
bargaining but the Board may include dependent contractors in a bargaining unit with other employees if the Board is satisfied that a majority of the
dependent contractors wish to be included in the bargaining unit.

Near Employees
 Another category of employees outside the normal employee situation: Student nurses, medical residents and interns, articling students, prison inmates,
etc.
 Do they have access to collective bargaining: The answer appears to depend on how closely the particular relationship resembles traditional
employment “is there a dependence"
 In once case, student nurses assigned to a hospital for training were found NOT to be employees of the hospital. In another case, inmates working
for a commercial abattoir on the premises of a correctional centre were considered to be employees of the abattoir.
Excluded Employees
 The Act does not apply to persons who are not “employees.” Eg. In Ontario: civil servants, firefighters, police officers, domestics, agricultural workers, and
members of certain professions. SEE SECTIONS 1(3) AND 3 ABOVE
 These exclusions raise the question whether or not the denial of the right to bargain collectively constitutes interference with freedom of association under
s. 2(d)
 FURTHER, because Ontario has provided a statuory freedom to organize in the LRA s. 5, as well as protections against denial of access to property s. 13,
employer interference with trade union activity s. 70, discrimination against trade unionists s. 72, intimidation and coercion s. 76, alteration of working
ocnditions during the certification process s. 86, coercion of witness s. 87 and remover of Board Notices s. 88. In this context it must be asked whether in
order to make the freedom to organize meaningful, s. 2(d) of the Charter imposes a positive obligation on the state to extend protective legislation to
unprotected groups.

Note: Essential Service Employees- generally do not have the right to strike/ unionize. This may seem problematic on its face, but really if you let them
unionize, the price of things would go out, and they probably don’t want to pay more taxes.

Case and Facts Holdin Reasoning and Ratio Notes and Exceptions
g
Delisle v. Canada, There  Freedom of association protects the right to form an association and  The dissenting
SCC 1999 (pg. 223) was carry on certain activities – but this exists independently of a statutory judges felt that a complete
 At issue: does no regime. exclusion constituted a
the complete statutory infring  It does not include the right to establish a particular type of violation of 2(d) that could
exclusion of members ement association defined in a particular statute not be justified under s. 1
of the Royal-Canadian  Occupation is not a protected “analogous ground” under s. 15 because (no minimal impairment)
Mounted Polic (RCMP) individuals have both the theoretical and practical right to move from one  However, see
from the Public Services occupation to another Dunmore for potential
Staff relations Act was  Must look at whether or not there is a complete denial to organize, or if additional protections
inconsistent with 2(d) there are some other ways of achieving some organization (i.e. another under 2(d)
and 15 guarantee. statute) 🡪 Police Association, for example.
 Section 2 of the Charter MAY impose a postive obligation of protection or
inclusion on Parliament or the government.. in exceptional circumstances which
are not at issue in this case.

Domestic and Agricultural Workers

 Domestic workers working in a private home and agricultural workers (in Alberta and Ontario) have been excluded – there are two justifications for this
exclusion:
  (1) They are generally single employees working far apart from one another
 (2) They would eliminate their own positions through increased costs, i.e. once their wages rise, people wouldn’t be able to afford them
 Note that the Employments Standards Legislation is not sufficient protection for agriculture workers, even though some say it is. Because there
are too many exceptions like wage, breaks and other significant provisions do not apply to agriculture workers. Until June of 2006 the Occupational
health and Safety Act did not even apply to farmers.
 In 1994 the NDP government enacted the Agricultural Labour Relations Act (ALRA) extending trade union and collective bargaining rights to
agricultural workers, however, the Harris government reversed this reform through the Labour Relations and Employment Statute Law Amendment
Act (LRESLAA)
 The Agricultural Employees Protection Act, passed in response to the Dunmore decision below, did give agricultural workers the right to
form, participate in, and maintain an association, but it does not allow agricultural workers to: strike, bargain collectively, and do anything more than
make non-binding suggestions to employers

Case and Facts Holding Reasoning and Ratio Notes and Exceptions
Dunmore v. Ontario (AG), There  In order to establish a violation of s. 2(d) the appellants must  This decision
SCC 2001 (pg. 224) was a demonstrate: (1) such activities fall within the range of activities involved a 3-3 split
Agricultural workers exclusion violation protected (2) the impugned legislation has either in purpose or effect,  In Delisle, the
from CB violated 2(d). of 2(d) interfered with the activities police had alternative
Rationale: unions will organize that was  Scope of 2(d) “while freedom of association advances many forms of redress –
the family famers and they will not group interests and, of course, cannot be exercises alone, it is distinguishing point
strike and it will destroy the justified nonetheless a freedom belonging to the individual and not to the  The result of this
family farm- Larry says this arg. under s. group formed through its exercise” decision was the AEPA
is ridicks 1. (failed  The effective exercise of this freedom may require not only which codified the right to
minimal the exercise in association of constitutional and individual rights, but make majority
NOTE: in other provinces where impairme the exercise of certain collective activities such as making majority representations 🡪 s. 3(b.1)
arg. workers. can organize nt) representations to one’s employer (extending Charter protection  This case did not
there is no probs. b/c you can somewhat!) give the right to strike, they
let them organize but remove  Freedome of Assocation ≠ Right to Collective Bargan said this was better left to
the right to work stoppage!  Freedom to Associate ≠ Right to strike the legislature

Current State of the Law (Public Service of Canada v. Northest Terrotires (Commissioner))
 Thus, the current state of the law as it relates to agricultural workers and their ability to form an association appears to be:
o (1) S. 2(d) protects the freedom to establish, belong to and maintain an association 🡪 and that the exercise of this freedom includes the
exercise of certain collective activities such as making majority representations to the employer (but NOT collective bargaining, nor the right to
strike 🡪 these are rights conferred by legislation)
o (2) S. 2(d) does not protect an activity solely on the ground that the activity is a foundational or essential purpose of an association
 o (3) S. 2(d) protects the exercise in association of the constitutional rights and freedoms of individuals
o (4) S. 2(d) protects the exercise in association of the lawful rights of individuals

Case and Holding Reasoning and Ratio Notes and Exceptions

Facts
Fraser v. No right to  Court comments “I have no hesitation in finding on the evidence that agricultural
Ontario (AG), collective workers are a disadvantaged group – poorly paid, face difficult working conditions,
Ont. SCJ bargain have low levels of skill and education, low status and limited employment mobility”
2006 “Nothing in Dunmore suggests SCC is backing off from view that s. 2(d) does not
encompass right to strike and collectively bargain”
BC Health Obligation on  2(d) protects right of employees to assocaiate through a process of collective This case has
Care SCC employer to barganning imlications on the
CB is bargain in good  Collective Bargaining is a fundamental aspect of Canadian Society rights of agricultural
procedural faith  Right to collective bargaining ≠ Right to Collective Agreement workers
right not
substantive
right
Fraser v. Right to  Legislation that allowed farm workers to organize was meaningless, found APA Based on BC Health
Ontario (AG) organize and invalid suspended declaration for 12 months to draft new legislation Care
CA 2008 right to CB
 Meaningful Collective Bargaining Requirements: (1) must be statutory duty
to bargain in good faith (2) must be statutory recognition of the principles of exclusivity
and the majoritarianism (ensure that you only have one entity representing the
employees) (3) must be a statute mechanism for resolving bargaining impasses

Professionals
 Under subs. 1(3), subject to s. 97, certain groups of professional employers are excluded from the scope of collective bargaining eg- physicians, lawyers,
dentists, and architects (note that this does not include the faculty of law or articling students. Belonging to the same professional body as a group that is
excluded ≠ automatically exclude you LSUC)
 Pg. 236: “…professional employees enthusiastically embrace collective bargaining…” Wilson says no “a lot of professional groups have done fine without
forming trade unions”
 general trend has been the inclusion of professionals in the collective regime BUT there is concern this may increase the income gap BT primary
and secondary labour markets
 Some professionals are concerned in regard to the concept of CB, if you have a CA, it controls the terms and conditions of your employment and this could
 interfere with the professional-client relationship. For example could limit the services you offer to your clients.

Public Employees
 While CB did not extend to the public sector until beginning in the 1960’s, today, the rate of unionization in the public sector in Canada far exceeds
that in the private sector
o Generally, public employees are covered by special collective bargaining statutes, which may put more restrictions on the subject matter of CA,
and on the RTS
 You will see in the literature a reference to a provision in the interpretation act. The interpretation act has in fact been repealed. The relevant section is now
found in the access to justice act and the section states that the Crown is not bound unless it chooses to be bound. In other words legislation does not
bind the Crown unless it so chooses to be bound.
 In the labour relations Act be aware of Section 4:

S. 4(1) 🡪 This Act binds agencies of the Crown other than,

         (a)    those that employ Crown employees as defined in the Public Service Act; and
         (b)    those that are designated under clause 29.1 (1) (a) of the Public Service Act.
      #(2) Except as provided in subsection (1), this Act does not bind the Crown.
Note that Section 4 says the Crown is not bound exception to this is section 4(1)

 So, if a Crown agency is enumerated/ designated in s. 29.1 of the PSA, it is not bound by the LRA. HWE, it will be subject to the Crown Employees
Collective Bargaining Act.
 If the Crown Agency is not designated then the labour relations are governed by the LRA (general legislation)
 Section 3 excludes the police, full time fire fighters, teachers etc. Each of these groups have their own legislation and they are organized just not under the
LRA.
 JUST KNOW: Government employees, people who work for Crown agencies, people who work for things controlled by provincial government will most
often be controlled but the question you need to ask, is under which legislation are they organized. You need to know if they are organized under the LRA
or the PSA (Public Sector Act)

Labour Law Issue

Until fairly recently all these different groups (above) had their own legislation, their own separate bodies to deal with disputes that arose. What has happened, is
that almost all of that work has been turned over to the Labour Relations Board itself. The reason why this impacts on the practice of labour law, is that as a result
of this shrinkage, it takes a lot longer to get a matter resolved by the LRB. There have also been huge cutbacks in the general staff at the LRB. We are also
starting to see political packing in some of the relations boards themselves. If you are going to work in this field it is important that you get to know not just the
personelle at the LRB but know the procedures and processes so you can properly advise your principle regarding time, cost etc. to get a matter dealt with.
Security Guards (LARRY THINKS THIS IS MUCHO INTERESTING YA YA)
 Takes into consideration practical considerations about the work they do and its relation to others.
 It used to be the case that security guards couldn’t be part of a trade union at all 🡪 conflict of interest: you don’t want the people who are protecting
the employer’s property being a part of the trade union that is on strike!
 When the Harris government came to power in 1995, created reasonable compromise 🡪 s. 14.
o Basically, this section will allow security guards to be in trade unions with other non-security guard personnel if the employer consents. If the
employer does not consent, the Board will follow a procedure specified in s. 14 to determine if there is a conflict of interest in allowing both security
guards and non-security guards into the same trade union. The onus is on the union to show that there would not be a conflict 🡪 Criteria in
14(5):
Conflict of interest
14 (5) The Board shall consider the following factors in determining whether a conflict of interest would result:
1. The extent of the guards’ duties monitoring other employees of their employer or protecting their employer’s property.
2. Any other duties or responsibilities of the guards that might give rise to a conflict of interest.
3. Such other factors as the Board considers relevant.
 Section 14 essentially provides the opportunity for a group who historically did not have good representation, to achieve representation while still taking
into consideration legitimate concerns.

Managerial Employees (“arms length approach to Managerial Employee/ Employee relationship”)

 Section 1(3)(b): no person shall be deemed to be an employee for the purposes of the Act who, in the opinion of the board, exercises managerial
functions
 Rational: AVOID CONFLICT OF INTEREST, we want to retain an arms length relationship BT employees / management, want to keep them out of the
union in order to prevent dummy unions, or management controlled/ influenced unions. This is a hard line and it is adversarial. (Managerial exclusion is a
common feature of all Wagner Act regimes )
 In deciding whether a person performs managerial functions under the Act, the Board looks to the purpose of the statutory provisions as being
fundamental to the determination – there are two purposes to the statutory exclusion:

1. CONFLICT OF INTERESTS: North American collective bargaining assumes an adversarial relationship between management and union
 The conflict of interests is to be ascertained only by reference to the employment-related duties performed (it does not include personal factors such as
family relationship)

Barbara
Jarvis

Held In the decision, the organizer of the Bank employees was determined to be managerial, and the Court held that there was no protection
under the LRA
Wilson  Thinks you could argue that when anyone is terminated for expressing pro-union sentiments, this is an unfair labour practice
committed against the union, even though the managerial employee is not a part of the union.
 Therefore-- You could argue for reinstatement. Read s. 97 in conjunction with s. 1(3)(b), s. 72 and s. 96(4)(c) (“person” which
includes any person excluded by s.1(3))
How to Get  S. 70 says a union can be a victim of unfair employee action, they can claim that the employers conduct had a chilling effect on their
Around the ability of organizing
Fact she is  In these cases some bright young lawyers have said that they understand that the person fired (non employee) cannot be protected
Manager or the subject of action pursuant to the LRB,
 Instead of framing the issue as if the manager was the victim of unfair labour practice they said the union was the victim of the
unfair labour practice
 In other words, the firing of this managerial employee created a chilling effect on the union “unfair labour practice”
 Practically Speaking this argument wouldn’t really work because the manager would be reinstated but because not a part of the
union would have no job security. Main point- if you are not an employee you certaintly do not have the type of protection that is afforded to
those who are employees.
Other Options  If at the end of the day you are not considered an employee under any of the above options, you can always bring a civil suit for
damages,
 Or in Nova Scotia or Quebec they have”just cause provisions” cant be fired without just cause
 Note that if you exercise rights under health and safety legislation you may get the reinstatement remedy. This is also the same
case for Human Rights legislation. So even if you client doesn’t have a remedy under the LRA they may have it under other legislation.
Wilson  Section 97 says that when there is an application under section 96, the word person includes persons normally excluded from that
Confusion section i.e. managerial persons. Wilson says you do not need section 96, because 97 basically says person includes managerial persons.
Wilson says this shows legislative intent to give the board the power to protect all individuals who have been the victims of unfair labour
practices. Note: there have been a series of cases following this, and the case law still says only “employees” are protected.

2. ARMS LENGTH: True collective bargaining requires an arm’s length relationship between the two sides, each of which is organized in a manner which will
best achieve its interests
 The line between manager and employee is not always clear, and it may vary with the approach taken by the particular labour board (i.e. the CLRB
takes a much broader approach than the OLRB) In particular, the trend of vertical integration has complicated the task of differing between employees
and managers

Exceptions: When Management Can be Part of the Bargaining Unit:

1. When union thinking about organizing, they may include jobs that are mangerial (inadverter) (Only if no one objects to it)
2. Rather than go through a formal certification process, a union may approach an employer, and ask them to voluntarily recognize them as the bargaining unit
for those employees.
 For many years the majority of representations for unions occurred through this idea of voluntary representation. There is no formal vote, and
 the LRB is simply notified of this voluntarily union representation
3. Existing Bargaining Unit (long standing relationship with union) but you have people in Unit who over time (for various reasons) are given new responsibilities
that actually move them into a managerial function. (This is the most common way it happens)
4. Change Scope of Bargaining Unit
 Once Bargaining Unit has been certified, the parties then move to the more difficult step of negotiating a collective agreement. As you
negotiate a collective agreement you have the freedom to change the scope of the bargaining unit. (must be mutual agreement to change)
(5) Revision by mutual consent: Nothing in this section prevents the revision by mutual consent of the parties at any time of any provision of a collective agreement
other than a provision relating to its term of operation

 UNDER THE NEW SYSTEM THE DETERMINATION AS TO WHETHER OR NOT SOMEONE IS MANAGERIAL WILL TAKE PLACE AFTER THE VOTE
FOR UNION HAS TAKEN PLACE. IF THEY ARE MANAGERIAL THEIRE VOTE IS TOSSED AND THERE MEMBERSHIP CARD IS TOSSED. IN THE PAST
IT WAS PRE VOTE.

Who is a Manager
There have been a number of tests created to help us determine if the person is an employee or a manager:
 1. Effective Control / “Effective Determination” test (Most common)
o Does the individual have power which directly affects economic lives of their fellow employees thereby raising a conflict of interest? (The
Corporation of the City of Thunder Bay)
 This includes the power to hire, fire, promote, demote, grant wage increases and discipline.
 This could be a person who effectively makes recommendations to the employer that are “rubber-stamped”
o Key: your impact is DIRECT, it is not enough that you just make decisions that affect other employees

Case and Facts Holding Reasoning and Ratio Notes and Exceptions
Children’s Aid Society The court set out the appropriate test. They were  Thunder Bay- The issue is  The employer bears
of Ottawa, OLRB 2001 managers. the extent to which the the burden of establishing
(pg. 237) employees make decisions that that employees are
 Job description directly affect the economic excluded under 1(3)(b)
emphasized employees lives of their fellow employees  “Effective
role in supervising daily thereby raising a potential Determination” test
work of employees in CONFLICT OF INTEREST
their area between manager responsibilities
 At issue was and obligations as managerial
whether they were personnel and their
managers responsibilities as trade union
members or employees in the
bargaining unit.
  TEST: The indicia of
economic power include: the
power to hire, fire, promote,
demote, grant wage increases
or discipline employees
Canadadian 1. Management exclusion is determined
Broadcasting fundamentally on the basis of an individual’s
Corporation effective and regular exercise of decision
 Board making. Or in n other words what matter is the
summarized factors power to decide, not the power to recommend
which justify exclusion
2. The functions over which the power to decide
exercises itself are typically those of the
management cycle ie planning, organizing,
staffing, coordinating, directing and controlling

3. The extent, not merely the existence, of

authority in financial matters is a key indicator
of a positions management content

4. Management is highly dynamic concept and its

precise ambit is a question of fact or opinion
for the board rather than a question of law..

5. Determination of management status will rest in

and end on the consideration of all factors
taken together and on how the specific duties
of a position relate to the decision making
framework in place and on the organization
configuration of which it is a part

Re Québec-Téléphone Distinction between two types. First level are  The first level managers  CLRB sets out
CLRB 1996 (pg. 247) employee/ second are not discretion is exercised in a well specific set of factors
 The union sought defined framework – they are and criteria to consider in
status to represent first part of the bargaining unit federal context 🡪 pg. 248
and second level  The second level managers (AND BELOW)
managers have real decision making  Similar to CAS
 authority because of their factors (above)
planning, organizing, directing
and controlling responsibilities
– the are excluded from the
bargaining unit

 2. Independent Discretion test (This test should be considered when the challenged employee has an indirect relationship with the other employees)
o If the person makes budgetary decisions, or decisions related to the acquisition of new technology, then they could be considered managerial +
conflict of interest
 3. Alter Ego test (This test usually involves people who act as assistants for people who are in a managerial position 🡪 this test is not used often.)
o The idea would be that the assistant is so closely tied to the managerial person that including them in the bargaining unit would be wrong.
o Often with these people, who are in an awkward position to be in the BU, if you have them in the BU you get an agreement from them that
excludes them from the debates and administrative offices of the union. They aprticipate to a limited extend. EG- presidents daughter
 4. Prime Function test (This is starting to become the most important test “wave of the future??”)
o This applies to people who act as the fact of the company, are regularly consulted, and often times know more than the boss
o Even though these ppl might not have any clear direct control, Board might consider the amt of time the person does something that could be
construed as managerial
o These people can still be considered employees if they spend the majority of their time in Bargainning Unit Administrative Work. The question
becomes “what do these people look like and how are they viewed by other employees” The LRB is hesitant to admit that this is the true question

AUTHOR & PIECE DESCRIPTION

 Argues that the Wagner Act model will lead to the demise of collective bargaining to the extent that it cannot
Karle Klare, “The Bitter accommodate modern organizational changes – therefore, an important issue is the extent to which our current model of
and the Sweet: managerial exclusion can be adapted to changing organizational structures
Reflections on the  The decision in Yeshiva – which held that professors in private universities exercised managerial function because they sat
Supreme Court’s on university bodies that decided appointments and promotions, awarded tenure and formulated curricula and teaching
Yeshiva Decision methods – epitomizes the problem with the Wagner model in a modern workplace

Confidential Employees
 Because of the potential for conflicts of interest, section 1(3)(b) of the Act provides that, subject to s. 97, no person shall be deemed to be an employee
who, in the opinion of the board, is employed in a confidential capacity in matters relating to labour relations (Important to take note of the definition
because of the qualifications)
o Three Requirements: (1) there has to be a regular involvement in matters relating to labour realtions, (2) it has to be at the core of that persons job
 function (3) the information which they have access will only be considered “confidential” where its disclosure would badly affect employer
 SCC has drawn a distinction between matters relating to labour relations and matters relating to personal information with the latter not disqualifying the
employee
o In each case it must be determined whether the information handled is sufficiently particular regarding such material labour relations matters as
projected hiring, lay-offs, or wages that it creates the likelihood of a conflict of interest.
 In addition to the two justifications for the managerial exclusions, the confidential employee exclusion seeks to protect the employer’s collective
bargaining interests
o However, labour boards are reluctant to apply this exclusion as rigorously. The premise behind this is because a lot of these people are paid
shitty and have bad job security and would greatly beneifit economically from being allowed to participate in collective bargaining

Case and Facts Holding Reasoning and Ratio Notes and Exceptions
Canadian Union of Bank Employees v. The court CONFIDENTIAL EMPLOYEE TEST:  This is a narrow
Bank of Nova Scotia, CLRB 1977 (pg. set out a 1. The confidential matters must be in relation to exception which is applied
256) three industrial relations, not general industrial secrets strictly.
 The court considered the proper part test such as product formulae (does not include matters  However, the
test for excluding confidential employees that the union members know or personal information) confidential duties need not
from the bargaining unit 2. The disclosure of that information would adversely be the bulk of the
 Here, the branch manager’s affect the employer individual’s work if those
stenographer wanted to be an 3. The person must be involved with this duties are significant:
“employee” information as a regular part of his duties (occasional Metro Toronto Library
 Stenographer had confidential contact is not sufficient) Board
employee records in his office, but did not  The exclusion is
have key to cabinet they were in based on a conflict of
interest

Status of Unions: Qualified Trade Unions

 Therens Case: indicated that where you have a union, which interferes with the economic interests of a company, the court held that a union is a legal
entity and therefore answerable in damages. This case applies in all the provinces EXCEPT Ontario and Saskatchewan

 In Ontario a Union is a non incorporated entity and cannot be sued or sue.

 Rights of Labour Act Section 3 Any act done by two or more members of a trade union if done in contemplation or furtherance of a trade dispute, is not
actionable unless the act would e actionable if done without any agreement or combination. A trade union shall not be made a party to any action in any
court unless it may be so made a party irrespective of this act or the LRA. A CB agreement shall not be the subject of any action in any court unless it may
 be the subject of such action irrespective of this act and the LRA.

 LABOUR RELATIONS BOARD HAS JURISDICTION!

 Berry v. Pulley (2002 SCC): Members of Union wanted to sue personally other members of the union. Prior to this decision, many people felt that union
members were bound to each other through a series of contractual relations. The court rejected this view, and said each individual member only has a
contractual relationship with the union. This was significant, because it expressly says that the union owes you an obligation of fair relations
 Labour boards have held that an organization must meet certain formal requirements in order to be recognized as a trade union under labour relations
legislation

S. 1(1) “trade union” means an organization of employees formed for purposes that include the regulation of relations between employees and employers and
includes a provincial, national, or international trade union, a certified council of trade unions and a designated or certified employee bargaining agency.

 Union Status is important for two reasons: (1) To be considered a certified bargaining unit (2) To be protected against unfair labour practices against
and from the employer
 Section 3(1) of the Canada Labour Code defines a union as any organization of employees whose purpose includes the regulation of relations BT
employers and employees
o Union status is only potentially an issue the first time a trade union applies to a board for certification
o S. 113 provides a presumption of status 🡪 if the union has already been organized, and now they want to represent a new group, their status as a
union is presumed.

S. 113 🡪Where in any proceeding under this Act the Board has found or finds that an organization of employees is a trade union within the meaning of subsection
1 (1), such finding is proof, in the absence of evidence to the contrary, in any subsequent proceeding under this Act that the organization of employees is a trade
union for the purposes of this Act.

 Labour boards have held that the organization must meet certain requirements of form in order to be recognized as a trade union
 In Associated Hebrew Schools of Toronto, the court set out a number of steps required to establish that a trade union has been brought into
existence:
1. A constitution should be drafted setting out, among other things, the purpose of the organization (which must include the regulation of labour
relations) and the procedure for electing officers and calling meetings
2. The constitution should be placed before a meeting of employees for their approval either as originally drafted or as amended at the meeting
3. The employees attending the meeting should be admitted into membership. In this regard, it is well to keep in mind s. 1(1) of the Act which
defined a union member to include a person who has applied for membership in the union and on his own behalf paid to the union at least $1 in
respect of initiating fees or monthly dues
4. The constitution should be ratified by a vote of the members
5. Officers should be elected pursuant to the constitution
 However, these steps do not represent the ONLY procedure by which a group of employees can create the structure envisaged by the Act. Generally,
 labour boards are traditionally much more concerned with what unions actually do as opposed to what their constitution says
 Section 15 of the OLRA imposes two prohibitions on Board certification of a union: 1. Employer interference 2. Union discrimination on grounds
prohibited by the Charter

S. 15 🡪 The Board shall not certify a trade union if any employer or any employers’ organization has participated in its formation or administration or has
contributed financial or other support to it or if it discriminates against any person because of any ground of discrimination prohibited by the Human Rights
Code or the Canadian Charter of Rights and Freedoms. 

 An ongoing debate is the extent to which labour boards should attempt to regulate unions beyond the express restrictions in the legislation
o Labour boards for the most part have not been overly concerned with whether unions follow democratic procedures as long as the requirements
of s. 15 are complied with. But note that the Board does have discretionary power to certify under s. 9 if they don’t think that the proposed
bargaining unit is “appropriate.”
 Labour Relations Board cannot deny Union Status just because they do not like the leadership/ politics type. The Board would have
exceeded its jurisdiction.

Case and Facts Holding Reasoning and Ratio Notes and Exceptions
United Steelworkers of The court  While this is not the only acceptable manner, it is of fundamental
America v. Kubota Metal endorsed importance that a CONTRACTUAL RELATIONSHIP be created and
Corp., OLRB 1995 (pg. 257) the maintained
There was an “Employees’ above  Implicit in s. 111(4) is the requirement of written constitution/by-laws
Association Committee” with a mode for but board can ignore written document and look at actual practices to certify
20 year history of negotiating estab a the union.
employment agreements with union  In this case, the Committee had no financial resources and was
the employer. U attempted to Committe entirely dependent on the employer for all activities that it engaged in. Union
get certified but the Committee e not a was certified as the bargaining agent, the Committee was out.
intervened to oppose the “trade  Today, labour boards appear to be insisting on only a minimum of
application union” formality, and to be concerned primarily with ensuring the existence of a
viable organizatio

Employer Influence
 Management interference with, or domination of, a union is prohibited by labour relations legislation as an unfair labour practice under s. 70.
 Discrimination/ Employer Invovement prohibits union certification under s. 15
 S. 11.1 board can refuse to cerfity a union if the union has contravened the act eg. Coercing someone to join the union is contravention under s. 76 (this is
 one of many remedies).

15. The Board shall not certify a trade union if any employer or any employers’ organization has participated in its formation or administration or has contributed
financial or other support to it or if it discriminates against any person because of any ground of discrimination prohibited by the Human Rights Code or the
Canadian Charter of Rights and Freedoms

Case and Facts Holding Reasoning and Ratio Notes and Exceptions
Children’s Aid Society of Metro  The union  If a union happens to have workers in it who If the orgniatio changed
Toronto, CLRB 1977 (pg. 262) was not are found to be managers, but who are not doing charcter the LRB under s.
 The union had workers that disqualified management’s bidding, it will not disqualify the 114(1) is allowed to
were determined by the board to be association if its rules expel those found to be reconsider any earlier
managers and the employer claims managers when their status is ascertained decision to give union status
disqualification or collective bargaining right
Board of Education for the City of  The fact  This illustrates the less stringent requirements
Toronto, OLRB 1994 (pg. 262) that a union’s for union status
 The composite of an constitution  You could have constition that may be
organizations membership, although permits admission discrimatory, but the board will take the practice into
in certain circumstance relevant to of non-employees consideration
the question of whether a trade and that it in fact
union is dominated by the does so will not
employer.. does not enter into the necessarily
question as to whether that preclude trade
organization is at trade union union status
 However,
the determination
of employer
domination is for
the Board to
decide – they will
look at what
unions “do” v.
what unions “say”
Chapter 5 – The Right to Join a Union
 In Ontario you do not have the RIGHT to join a union (Section 5) you are merely free to join a union

45. (1) Every collective agreement shall be deemed to provide that the trade union that is a party thereto is recognized as the exclusive bargaining agent of the
employees in the bargaining unit defined therein.

51. (1) Despite anything in this Act, but subject to subsection (4), the parties to a collective agreement may include in it provisions,
(a) for requiring, as a condition of employment, membership in the trade union that is a party to or is bound by the agreement or granting a preference of
employment to members of the trade union, or requiring the payment of dues or contributions to the trade union;
(b) for permitting an employee who represents the trade union that is a party to or is bound by the agreement to attend to the business of the trade union during
working hours without deduction of the time so occupied in the computation of the time worked for the employer and without deduction of wages in respect of the
time so occupied;
(c) for permitting the trade union that is a party to or is bound by the agreement the use of the employer’s premises for the purposes of the trade union without
payment therefor.

Section 47 of the Labour Relations Act (ON EXAM READ SECTION 47 KNOW IT)
47. (1) Except in the construction industry and subject to section 52, where a trade union that is the bargaining agent for employees in a bargaining unit so
requests, there shall be included in the collective agreement between the trade union and the employer of the employees a provision requiring the employer to
deduct from the wages of each employee in the unit affected by the collective agreement, whether or not the employee is a member of the union, the amount of
the regular union dues and to remit the amount to the trade union, forthwith.
 Creates the RAND Formula which flew out of the Ford Strike. Justice Rand was of the view that if you say yes to unions, you must make the environment for
unions feasible

 Section 47 is not mandatory, BUT if a union requests that section 47 be included then it must be included.

 Premise: “No Free Riders” if you have BU and some people do not want to be members of the collective agreement, these people still have to pay union dues

 You may not have the right to refuse union. If the union has been able to negotiate a closed shop provision or union shop provision you MUST be a union
member, the only exception is section 52 for religious believes to gain an exemption.

 Rand Formula raises concerns about 2(d) freedom from a union “while we MAY be violating a charter right, we are violating the charter right, but we can
reasonably justify the violation, some justices have said, if you do not have the RAND formula the practical reality is that you will not have unions in Canada”

 Rand Formula is pretty much the opposite of the Right to Work regime
See Handout 1- Walmart Tool Box To Remain UNION FREE. Walmart has been very successful in making themselves a target which is difficult to organize
See Handout 2- Right to Work States in the United States
See Handout 3- Right to Work (Ontario) (NEED HANDOUT)- No Rand Forumula = Don’t have to pay union dues be part of union = Anti Union environment

Clarification on Terms (Larry’s Defintions, there are varying ones)

 Union/ Agency Shop: More common that closed shop. Hire anyone you want for available positions don’t have to be part of union so long as they join upon
being hired

 Problem: John start organizing anti union drives as a result gets expelled from union, becaue there is a requirement that all employee have
to be part of union, employer is forced to fire John pursuant to the Collective Agreement. There are safeguards- legislation says you cant
fire them just because dispelled from union (S. 51(2)(a))

 Closed Shop: Can only hire employees that are part of existing union of company that represents that companies employees. Common in construction area

 RAND Formula: About paying union dues, everybody pays union dues. You can have a unionized work force, whether it is closed shop or union shop or you
may actually have a scenario where union membership is not required.

A Historical Note
 Prior to the Wagner Act, there was often great struggle for employees to acquire bargaining rights:
o The Estavan Strike, also known as “black Tuesday” involved a massive riot that was preceded by the formation of an unrecognized union in the
Estavan area in the latter half of the summer of 1931
 Before WWII, a strike or threat of strike was the only way for a group of employees to compel a reluctant employer to engage in collective bargainin
 However, since the 1940’s, employees are no longer required to strike in order to gain recognition of their chosen union. Legislation has required an
employer to negotiate with a trade union that has been certified by a labour relations board to represent employees in a defined bargaining unit.
Legislation also outlawed recognition striks
 Labour relations legislation restricts anti-union activities by an employer during an organizing campaign, and also before and after that campaign—at any
time (unfair labour practices)

AUTHOR DESCRIPTION
& PIECE
  With the formation of the MWUC (Mine Workers Union of Canada) in Souris coal field, a crisis arose that eventually culminated in the
S. Hanson, Sept. 8 walkout.
“Estevan  Conflict between management not recognizing the union, and employees not wanting to bargain outside their union, so STRIKED
1931” in I.  One Mine place stayed open cause not part of union. The union said it was cool to ship coal for local supply. Despite this good will
Abella, ed. suspicions arose that the stike was not peaceful. Consequently the RCMP was dispatched
On Strivke:  Operators wanted more police dispatched but gov. said no, said it was all good strike not dangerous
Six key  On Sept. 18 police heard that miners were planning to hold a “nisance parade”
Labour  Confrontation between police and Martin Day, McCutcheon tried to pull him off horse saying “no parade” then Day was held back but one
Struggles in of Day’s colleagues punched McCutchon, Day was arrested and then a riot of sorts broke out.
Canada,  The grim toll of the battle consisted of three dead and 23 injured.
1919-1949

AUTHOR DESCRIPTION
& PIECE
 The Getman study, an American empirical study, questioned the premise that unfair labour practices unduly influence employee choice
and concluded that illegal employer tactics did not significantly affect the result in a sample of certification votes conducted by the U.S.
NLRB
Paul  Weiler points out two flaws with the Getman Study
Weiler, o The study merely failed to produce a statistically significant connection between employer intimidation and employee voting (this is not
“Promises sufficient to prove that there is no such relationship)
to Keep: o The study focuses on the average worker rather than the marginal worker in each individual election verdicts (i.e. a 5%
Securing increase in overall votes for the union could have led to a 15% increase in the certification success rate. In other words it focuss on the
Workers’ individual voter rather than the election verdict.
Rights to  Dickens best estimates was that, in the average campaign studied, unfair labour practices reduced the number of pro union votes by 4%
Self-Orga  Dickens study further indicated that if a small percentages of affected workers in the Getman study had voted pro-union, it would have
nization actually amounted to significant changes in certification results
under the  NOTE: PAUL WEILER IS DEAN OF CANADIAN LABOUR LAW- HE SAYS UNFAIR LABOUR PRACTICES WORK, ILLEGAL
NLRA” ACTIVITY BY EMPLOYERS CAN HAVE A SIGNIFICANT EFFECT ON EMPLOYEES TO UNIONIZE! LARRY AGREES!!
  Considered whether American labour law met international human rights standards on the protection of freedom of association
Human  NLRA (US) declares a national policy of “full freedom of association” and protection of workers right to form and join a union, to bargain
Rights collectively through representation of their own choosing, and to engage in other concerted activity for the purpose of collective bargaining
Watch,  The reality is that the NLRA falls short of its goals – many workers who try to form of join unions are harassed, threatened, or fired.
Unfair Private employers are the main agents of abuse.
Advantag  International human rights law makes governments responsible for protecting vulnerable persons and groups from patterns of abuse
e: by private actors
Workers  In the United States labour law enforcement efforts often fail to deer unlawful conduct.
Freedom
of
Associatio
n in the
US under
Internatio
nal HR
Standards

Unfair Labour Practices

 As a lawyer do not advocate illegal activity, but if asked to discuss illegal activity you must preface it saying it is prohibited and then give examples of
remedies.
 The rights conferred by the legislation are protected through the concept of the unfair labour practice which prohibits anti-union activities – while the
legislation protects these rights on an ongoing basis
 The regulation of employer unfair labour practices during an organizing campaign rests in large part on the premise that such conduct unduly influences
employee choice for or against collective bargaining.
o Note, however, “Union Representation Elections: Law and Reality” came to the conclusion that illegal employer tactics did not significantly affect
the result in a sample of certifiation voted conducted by the US National Labour Relations Board
 The main provisions for unfair labour practices are found in ss. 70-78 of the OLRA.
 ss. 70, 72, and 76 are generally used to prevent employer interference with the union
 these protections are commonly used at two times: The organizational drive – when workers begin to seek union assistance or a union comes into a
workplace seeking support The bargaining context – circumstances in which the union is attempting to bargain toward a first or later collective agreement

 Section 70 / 72 / 76 we are talking pre certification. If we are looking at post certification we are looking at s. 86 discussed later

70. Employer, etc. not to interfere with unions:

 No employer shall participate in or interfere with the formation, selection, or administration of a trade union or provide financial support (however, the
 employer is free to express his views provided he does not use coercion, intimidation, etc.) (PROTECTS UNIONS)

 It is not enough that the conduct had an incidential affect on the union, it had to have a chilling effect. The relevant question is: “Did the conduct of the
employer intentionally or inadvertently have a chilling effect on the unions attempt to organize the work force”

 Sometimes board will commit acts that create chilling effect but they were not trying to be anti union, so the remedy in these cases is usally to put a
posting saying hey not anti union they made this for sound business decsion but just had shitty effect so this way employees know that the employer
doesn’t hate them

 Examples(Note the Lack of Mens Rea Requirement don’t need anti union aniumus):

(1) closing your operation exclusively to prevent union from organizing, or threaten to close the business if the union gets in that is an unfair labour
practice committed against the union it had a “chilling effect” on the unions ability to organize;

(2) Firing people who are well know union activists because this will have an impact on the union, note this example would also be ULP under s. 72
effect on those specific individuals. Larry says get around this by firing a group of people and include these activists, colour your
motivation using economic. This is dangerous advise for lawyers to give to employers;

(3) Sponsor a petition in the workplace where the employer asks people to give loyalty pledges asking them to cross the picket lines this is a problem
during the organizing phase, but not after a union is formed;

(4) allow meetings on company time on company property for anti union groups and not allow the same consideration to pro unions. Note it is private
property this is a consideration;

(5) union committee and the employer voluntarily recognizes it and uses this union to prevent other unions

(6) spreading false rumours about the previous work of the unions like wage reductions, firing people etc;

(7) All of a sudden contract out work and take away from pro unioners, usually employers get around this claiming it was an economic business
decision

72. Employers not to interfere with employee’s rights (PROTECTS THE INDIVIDUAL)
 No Employer:
(1) Shall refuse to employ or discriminate against a person because they are a member of a trade union or is exercising his rights under this Act
(2) Shall impose a condition in a contract of employment that seeks to restrain them from becoming a member of a union or exercising rights under
the Act
(3) Shall seek by threat, penalty or otherwise to compel an employee to become, refrain from becoming or to continue to be, or cease to be a member
of a trade union or to cease to exercise any other rights under this Act.
  Note that this section does not preclude layoffs, though the employer should be aware of the optics such layoffs could have during the organizing drive.
 There must be at least some anti-union animus here Mens Rea.
 Difference between s. 70 and 72: s. 70 you do not need anti union animus, whereas s. 72 is firing someone for union activity, thus anti union aniumus
motivation.
 Note, that larry thinks it is impossible that a s. 72 violation, wont by definition also violate s. 70 because any firing for union activity will in effect have a
chilling effect on the union thus a violation of s. 70!

76. Intimidation and coercion:

 no person shall seek by intimidation and coercion to compel any person to become or cease to become a member of a trade union or employer’s
organization

 If you have this type of activity, they can be charged under the Criminal Code, it is also possible to prosecute someone for violating the LRA see s. 104 you
get fines.

 ss. 76, 74, and 73(2) are used to prevent union interference with the employer

o 74. A trade union or council of trade unions, so long as it continues to be entitled to represent employees in a bargaining unit, shall not act in a
manner that is arbitrary, discriminatory or in bad faith in the representation of any of the employees in the unit

Proving an Illicit Motive

 An illicit motive is an essential ingredient of some unfair labour practices in Canada (i.e. dismissing an employee for being a member of a union)
o See section 94(3) of the Canada Labour Code and section 72(a) of the Ontario Labour Relations Act, 1995
o In many jurisdictions, an employer alleged to have violated such a provision bears the burden of proving the absence of an illicit motive
 96(5) Burden of proof: on an inquiry into a complaint under 96(4) pertaining to a person (not a trade union), the employer bears the burden of proof that it
did not act contrary to the Act 🡪 this implies that s. 70 is not a reverse onus because it only applies to trade unions, the reverse onus (employer proving on
BOP only comes into play for s. 72)
o Wilson believes that if the conduct is directed against an individual, and has a chilling effect on the union (so as to engage s. 70), since the
conduct is against an individual then the reverse onus clause in s. 96(5) is triggered

Case and Facts Holding Reasoning and Ratio Notes and Exceptions
Duchesneau v. Conseil de la There was an illicit motive  If an employer acts  In this case, the violations had been
Nation huronne-Wendat, out of anti-union animus, going on for a number of years without
CIRB 1999 (pg. 271) even if it is an incidental any sanction
 Employer claimed that reason or proximate cause,  Equivalent of 72(a) in Ontario
D’s dismissal was related to and his act is one  Timing is key consideration!
serious violations (i.e. it was contemplated by s. 94(3) (of  To find unfair labour practice if
a dismissal for cause) the Canada Labour Code), there is ANY anti union animous that is
 D was union leader at he will be found to have enough to get into the unfair labour
time he was fired. committed an unfair labour practice scope.
practice. (Yellowknife
Distrcit Hospital Society et
al.)
 Employer beaars the
Burden on BOP that it didn’t
have anti union aniumus

Air Alma Inc. (pg. 275) The reasons for the dismissal may
very well be justified. However, even
if there is a TAINT of bias, it will be
an unfair labour practice
Halifax Grain Elevator Because section 98(4) places the
Limited burden of proof on the employer, it
must provide the Board an
explanation for its actions which, on
the balance of probabilities, will
satisfy the Board that no anti-union
animus is present in its decision to
take thee actions against employees
which are covered by section 94(3) of
the Code
Royal Guard Vinyl Unfair labour practice?  Because of the timing of  To remedy this case, the Board
 Employer installed the installation, any made the employer take the cameras
surveillance cameras during reasonable employee would down.
the organizing drive. They did conclude that these cameras  Another example of bad timing
it pretty much IMMEDIATLEY had to do with the organizing
following the decision to drive.
organize (bad timing)  Shows that
appearances can be very
important in these situations
 This was an attempt to
intimidize employees!!
Kotex Larry Brings Up: Mix of anti union and justifiable cuase  There were legitimate  Mr. R reinstated even though he
 Bad employee, had reasons to fire Mr. R, but was a shit employee and the court knew
good reasons to fire him, but these coexisted with unlawful this
they also had anti union reasons that had anti union
aniumus cause he was union aniumus.
man  This case illustrates
how little unfair labour
practices there need to be for
the court to find a violation.

NOTE: If you have a person who has been dismissed or fired and there is a question fo unfair labour practice, they are still allowed to vote, the vote, however, will
be segregated. Basically the board doesn’t take away their employee status for the point of the vote, and if the vote is crucial they will hold off the final count until
after the hearing.
Non-Motive Unfair Labour Practices
 There are other provisions relating to unfair labour practices that are silent on the issue of motive
o For example, section 94(1)(a) of the Canad Labour Code and there is debate as to whether s. 70 allows for a non-motive based approach to
placing restrictions on employer activity because it interferes with trade union’s ability to represent the workers
 Section 70 reads: No employer or employers organization and no person acting on behalf of an employer or an employers organization shall participate in
or interfere with the formation, selection or administration f a trade union or the representation of employees by a trade union or contribute financial or
other support to a trade union, but nothing in this section shall be deemed to deprive an employer of his freedom to express his views so long as he does
not use coercion, intimidation, threats, promises or undue influence

Case and Facts Holding Reasoning and Ratio Notes and

Exceptions
Canadian Paperworker Union v. There are two approaches to the  The court wants to give some meaning
Int’l Wallcoverings, OLRB 1983 (g. interpretation of s. 70 to s. 70 without unduly interfering with valid
277)  AAS Telcommunications business
 CO. got replacement Approach – give independent  Only in rare cases does this become
workers, strikers found out secret meaning to s. 70 which does not have an issue 🡪 usually go for the motive-based
pick up point and arrived a fight the motive words that ss. 72 and 76 approach in ss. 72, 76
broke out. Some of the strikers have. But need “balancing” a chilling
were dismissed as a result. effect on the union.
 At issue was whether s. 70  Skyline Approach – implied a
required that employer conduct be motive requirement into s. 70; however,
motivated by anti-union motive can be inferred based on a
considerations balancing
 Holding: The section (s. 70)  Result: Can get a s. 70 ruling
does not require anti-union without motive, but the Board will
animus in all cases take a deferential approach where
the employer can show that the
action (firing) is being taken to
protect a legitimate business
interest.
 This case wanted to show that
s. 72 was not redundant and
essentially was Comparing 70 and 72
court said “when you have an
allegation of an unfair labour practice,
you should use s. 72 if it is available to
cover the factual situation, and then
only go to s. 70 if it is not.
 Section 70 essentially has a
lower threshold because there does
not need to be anti union aniumus, this
case is essentially trying to limit the
inappropriate use of s. 70
 Note that strike breakers are
illegal pursuant to s. 78. Replacement
workers are different. KNOW
DISTINCTION! Strike Breakers are used
to intimidate threaten etc.
Handout Jimmy Patteson Case  In labour they throw a bunch of
sections in there allegation, board
will discuss all the secitons, then
give there finding but not tell you
what section it is based on, or if
they used the reverse onus.
Union can allege multiple section
violations simulatnouly.

Westinghouse Canada Ltd., OLRB  Unfair Labour practice  While there were some legitimate  If you
1980 (pg. 283) business reasons for the relocation, there have anti-union
 Relocation of unionized plant was a taint of anti-union animus animus, you
to location where there was little  There was no economic crisis and don’t need to
union presence in order to save notwithstanding the perceived lag on worry about s.
money. The Board found anti-union productivity, no evidence that the issue was 70 – if you can
animus. raised with the union. make a finding
 The Board remarks that it is unclear under s. 72,
what would happen in a situation where a that should
unionized plant’s employer is faced with an encompass s.
economic crisis. 70!
 Employer may discontinue operations
for cause so long as the decision s ot
motivated by anti union animus
Kennedy Lodge Nursing Home, There was no unfair labour practice  Absent restrictions in the relevant  This case
OLRB 1980 (pg. 283) collective agreement, business operations is
Employer contracted out are not “frozen” by the collective distinguishable
housekeeping and janitorial services relationship and an employer can from
to “save money” and laid off a bunch discontinue operations for cause, so long Westinghouse
of unionized employees. The union as the action taken is not in any way motivated because in that
argued that this situation was by anti-union animus case there was
indistinguishable from Westinghouse  A desire to save money and thereby anti-union
increase profits is not equivalent to anti animus.
union animus simply because the money 
saved would otherwise have been paid as OVERTURNED
wages to employees in the barginning unit. BELOW!!
Kennedy Lodge Nursing Home, There were unfair labour practices  The board went on to consider the  GET
OLRB 1984 (pg. 285) relationship between contracting out for NOTES ON
Following the above legislation the economic reasons and unfair labour THIS FROM
same employer entered into an practices: Where an employer retains LARRY
arrangement with an employment control, an inference can easily be drawn
agency for he supply of nursing and that the employer acted to undermine
health aides who would displace bargaining rights
about 2/3rds of the unions BU.

Applying/ Distinguishing Between Section 70 and 72

 If you have have intentional anti union action board will try and force you into discussing s. 72

 If you have conduct that is clearly directed against the union, you will use section 70

 If you have conduct directed at employes but no evidence of anti union motivation you could still try and use s. 70 if there is a chilling effect on the union

 If there is a valid business reason for the conduct against the indivdual or it if was done with no anti union motivation this will be a defence to section 72 and
negate the assertion of anti union motivation

 If you have a mix of anti union motive and sound business choice then you have a violation of section 72 because all you need is ANY anti union motivation

 If there is a sound business decision that has an impact on the union but not the individual than Larry says this is not a defence to section 70 (some cases
disagree)

 If you make a sound business reasons and the union is aware of that then there is no violation of section 70 because no chilling effect.

 In terms of the reverse onus, larry cannot think of a circumstance where it would not operate when talking about a violation of section 72

 In terms of section 70 it would appear that the reverse onus could operate if the factual basis for s. 70 allegation is conduct directed against the individual (for
example you mistakenly fire someone and it has a chilling effect)

 Larry is confident saying this because later when we talk about the freeze provisions the board has said that the freeze provisions do not have an element of
anti union motivation. And there are a number of cases where the violations of the freeze provisions involve individuals and there is a reverse onus, so based
on that larry is inferring that s. 70 violation involving individuals will invoke the reverse onus.
 AUTHOR & PIECE DESCRIPTION
Brian Langille, “Equal  Argues that the Kennedy Lodge test has protected an employer intent on avoiding the collective bargaining process
Partnership in Canadian  Contracting out to avoid the axiomatic effects of unionization is contracting out with anti-union animus
Labour Law”  Virtually impossible to draw distinction between sound business decisions and anti union motives. The reality is it is often a
sound business decision to contract out, but tht clearly sends out an anti non mention

Alteration of Working Conditions: The Statutory Freeze

 Collective bargaining legislation generally provides for a two-staged “statutory freeze” that prohibits the unilateral alteration of the terms and conditions of
employment first during the certifiction process and then during much of the bargaining process after certifation
 The pre certification stage of the freeze begins when an application for certication is filed, and ends when the application is dismissed or soon after the
certifate is issued
 For example under the ORLA, when notice to bargain is given, the bargianin stage of the freeze begins, and subsists until the paries are in a legal
strike/lockout postiion
o 86(1) Working conditions may not be altered – once the notice to bargain is given, the employer cannot alter the terms of employment until the
end of the conciliation process or the rights of the union to represent the bargaining unit have been terminated – unless the trade union consents.
 S. 59 🡪 when there is already a K in place, notice to bargain can be given by either party anytime after 90 days before the current
agreement is set to expire.
o 86(2) Idem – once the notice of certification has been filed, the employer cannot alter the terms of employment until notice has been given under
s. 16 or the application for certification is dismissed – unless the trade union consents.
 This freeze begins the moment that the notice is delivered to the employer that there is an application for unionization
 The freeze aims to restrain employer conduct that may have the effect of undermining the union’s organization or negotiating efforts
 Anti-union motive on the employers part is not required for a breach of freeze provisions
 The freeze operates in addition to the other statutory unfair labour practice provisions, and that it supplements rather than displaces those provisions

Case and Facts Holding Reasoning and Ratio Notes and Exceptions
CIBC v. Union Bank of Did the  The court found a contravention of s. 124(4) and adopts the  Acts beyond this
Employees, CLRB 1979 employer “business as before” approach because it would send a negative require the consent of the
(pg. 285) violate 124(4) message to workers to deny them expected pay increases Board
 The majority of the of the CLC?  The employer is entitled to do acts that it would normally do  If the change
banks branches across Violation of the in the regular course of business affects a “person”, then
Canada were not bargaining  124(4): “where an application by a trade union for certification as the reverse onus in s.
unionized. The union had freeze a bargaining agent for unit is made in accordance with this section, no 96(5) applies.
applied for certifiation for 2 employer of employees in the unit shall, after notification that the  Subsequent cases
branches. The bank had a application has been made, alter the rates of pay or any other term or sugest the “business as
set schedule of wage condition of employment or any right or privilege of such employees” before
increases, but once the test is often not very
freeze began, they did not helpful.
provide the wage
increases
Simpsons Ltd. v. Union, There was no  Board looks at the “business as before” approach from Spar
OLRB 1984 (pg. 286) unfair labour Aeorpsace “the employers right to manage its operation was
 Employer laid off relations, the maintained subject to the condition that the operation conform to the
1/10 of the workforce as lay offs were pattern established when the freeze was triggered”
a result of financial motivated by  Even where there has not been a pattern of layoffs, they are
difficulties immediately genuine permitted even during a freeze if it is reasonably expected; but
prior to the freeze financial unless there is a practice of contracting out, the right to contract out is
 Union conceded hardships, limited
that there was no employees  Reasonable to expect layoffs in an economic downturn but must
anti-union animus but should have be proportional to the financial crisi
alleged unfair practice reasonably  This is the “reasonable expectations” test – replaces
 Union alleged a expected to be “business as before” test to determine if there is a violation of
violation of what is now layd off, given freeze provisions
s. 86(2) of the Ontaio the economic  The reasonable expectations approach clearly incorporates the
LRA problems. ‘practice’ of the employer in managing the operation.
 Wilson points out  The standard is objective one: what would a reasonable
that s. 86 violation employee expect to constitute his or her privilege (or benefits to use a
cannot be defended by term often found in the jurisprudence) in the specific circumstances of
absence of anti-union that employer. The test should not be mechanical, it is what the
animus or by legitimate employee would “reasonable” expect to happene during freeze
business decision  Reasonable expectations approach distinguishes between
defence. contracting out and layoffs.

 During a freeze, unless there is a practice of contracitn out, the

employers right to contract out is limited by the employees privledge of
performing the work if the work is to be performed for the benefit of the
employers operation.

Case and Facts Holding Reasoning and Ratio Notes and Exceptions
OPSEU v. Royal Ottawa Health  The  The business as usual and reasonable expectation tests
Care, OLRB 1999 (pg. 288) court set do not provide an unfailing guideline – a third approach is
 The hospital admitted that it out three needed: one that reads the freeze provisions in light of the
had reduced the level of employee consider- need to: (1) bolster the bargaining process; (2) reinforce the
benefits during the negotiations of a ations status of the union as bargaining agent and; (3) provide a
collective agreement—that is during firm starting point for collective bargaining
the bargaining sage of the stutory  Board seems to be saying that any change without the
freeze. The union borught a consent of the union will be a violation.
complaint that the hosptials actiosn  Freeze provisions are more like a form of economic
violated the freeze regulation than a fault based prohibition. The freeze provisions
stipulate that even bona fide business decisions may be
suspended while the bargaining process unfolds. In contract to
the “traditional” unfair labour practice provisions, the freeze is
directed more towards facilitating bargaining, than protecting
employers from” victimization” at the ends of an anti union
employer
NLRB v. Exchange Parts Co., USA   The actions of employees with respect to the choice of  If favours are
1964 (pg. 290) Violation their bargaining agents may be induced by favours bestowed prior to the
 An employer bestowed of the bestowed by the employer as well as by his threats or freeze, challenge under
benefits on employees during the freeze domination ss. 70, 72, or 76
freeze period

Employer Speech
 During an organizing campaign, management representatives often want to communicate with employees, with a view to persuading them not to opt for
unionization
 However, NLRB v. Federbrush Co, US 1941 (pg. 291): what to an outsider will be no more than the vigorous presentation of a conviction, to an
employee may be the manifestation of a determination which it is not safe to thwart the board must decide how are the second aspect
obliterates the first.
 Legislation is some Canadian jurisdictions expressly recognized as right of employer free speech, but adds the qualification that the employer must not use
threats, promises or undue influence:
 S. 70 allows an employer to express their views about the union as long as they don’t use “coercion, intimidation, threats, promises or undue
influence.”
 But there is a thin line between expressing your view as an employer, and improperly influencing the process.

Case and Facts Holding Reasoning and Ratio Notes and Exceptions
United Steelworkers of America v. Wal Mart, The board issued remedial  The actions of the  If employer leaves
OLRB 1997 (pg. 291) certification under s. 11 employer so tainted the views employees with the
 Managerial rep refused to answer of the employees that the vote impression that they must
question about whether the store would close was not a true reflection of choose between the union
if union was successful. Allowed an their wishes (violate s. 70) and their job, this will be a
employee to read letter stating that the store  The board asks what the ULP
would close impact of the statements  However, in a
 Manager suggested that some would be on a REASONABLE, bargaining context,
economic benefits would disappear if there was but VULNERABLE EMPLOYEE employer can state that
a union. Union requests that the Board set  By failing to address the operation may close if
aside the vote and certify the union pursuant to result of union success, union does not concede
section 11 of the Act management implicitly some terms (economic v.
threatened that the store would anti-union)
close or there would be a loss of
benefits – this made it impossible
to ascertain the employees true
wishes
Walmart Aftermath  As a result of this case,
Told that store would be closed if voted yes to the government enacted the
union. Board ordered new vote, but still failed. so called Walmart
amendment that section
removed remedial
certification
 We now have s. 96(8)
however that says you
cannot order remedial
certification as a remedy
Sewer Matic Services  we are just not going to
allow you to gaint through the
backdoor what you cant get
through the from, if you want
the vote, then you do it the
right way sign up members
get more than 40%
membership and that will
entitle you to the vote, we will
not allow you to skip this and
 just rely on remedial
provisions
Paddison Clear Case (handout)  very clear that LRB is
removing a lot of restrictiosn
on employers speech, the
board is saying that denying
employers the opportunity to
speak frankly to their
employees is an insult to the
employees, employees are
sophisticated enough to
understand the implications
of their decision, and are
pretty aware that the
employer doesn’t want a
union
Societe Place des Arts v. I.A.T.S.E. (Union)  No ULP  Where an employer  Section 109 of the
 Tenants of S were only to use I’s techs genuinely goes out of Quebec legislation
 I went on lengthy strike. business (even partial), its prohibited replacement
 S decided to stop providing technical motive for doing so (even if workers during a strike
services to tenants, thereby allowing tenants reprehensible) is not subject to  Replacement
to get their own techs. review (City Buick Pontiac) workers are fine in Ontario,
 I argued new techs were replacement  However, there must be strike-breakers are not.
workers an absence of an intention to
reopen (if it is merely a ploy, it
will be an unfair labour practice)
– in this case, all the evidence
suggested a good faith basis for
going out of business
 SCC characterized this
as S “going out of the
tech-providing business” – not
as replacement workers taking
over the tech’s jobs
 As a result of these cases, the following questions are left unanswered:

(1) Can an employer close up shop in one jurisdiction and simply move business to another jurisdiction if it is done so in part for anti-union reasons?
 as the union you can go to board in Ontario and say company has committed unfair labour practice.

 In terms fo the remedy it is not really going to be practical or possible for the company to return to Ontario, you will probably seek damages for the people
who have lost their jobs and work as a result of this unfair labour practice.

 But there is no way to enforce the order from Ontario if the move was to ouside of it. You would need to file your order under s. 96(6) file with court.

 If move was to another part of Canada then you can reciprocal enforcement of judgesment, you can enter judgment into superior court of another province
once your order is regisereted with superior court.

 Regarding the states- the question is did the violation in Canada, also a violation of the law in that state, the farther you move south the less likely it is that
you will ever be able to enforce any type of enforceable order.

(2) To what extent are we going to have a labour board order the reopening of a specific location

Case and Facts Reasoning and Ratio Notes and Exceptions

Humpty Dumpty case  LRB extended the certification of the BU to the new location or
otherwise gave the employer the option to re-open the old plant
Westinghouse case  The Board ordered that employees of the Hamilton
 Relocation of unionized plant to location location would have first refusal for the jobs at the new plant,
where there was little union presence in order to and the employer would have to pay moving expenses (did not
save money order re-opening), employees not loose senority
 Board made compromise, recognized the partial
legitimacy of the economic need to relocate, but also that
employees had needs too..
Acadamy of Medicine  Board said it would be impractice to force a reopen because
This case is often sited for forcing reopining would create a problem of enoformcen and employer who was
forced to re open would probably pull other shit. So the board gave
3 months salary compensation to employees and gave union the
money they spent on organiaing their legal costs.
Plaza Fiberglass 1919  Board ordered her to move the work back, Wilson says
 Women who owned company did not like this looks like forcing person to re open. But this could be
unions, moved some of the work done at one because she was a huge bitch and violated a lot of labour
plant to another plant when they started practices.
organizing union
Sunny Crest Nursing Home  Board ordered that the subcontracting end and the work
 Employer had subcontracted out work be returned to the original employer.
Rappid transformers 1999 Ont. Board  Board said Ontario company to return that work form
 Employer said okay if I keep everything in quebec to Ontario and compensate loss wages fo people who
Ontario they wil do something nasty, so moved lost work as a result of the move to queebec.
the work where the ont. Board has no  Understand that these are instanes where employers
jurisdcitons. Copany moved work to their facility in found to do unfair labour practices.
quebec

Solicitation on Employer Property

 Union organization generally takes place at the workplace which is employer property – therefore, there is an issue as to how labour legislation should
balance employee’s rights to act collectively with the employer’s right to control conduct on its premises
 Section 13 has been interpreted to apply to a situation where normally employment is in a rare area like a lumber camp, area where access is limited. It
will not apply to an industrial part area in missisuage. Union can apply to get a union to have access to that area. Generally b/c it is is private property
general public or union organizer will not have acces to the proerty. So when we talk abut restrictions on union free speech, we areusually talking about
employees.

##S. 13.  Where employees of an employer reside on the property of the employer, or on property to which the employer has the right to control access, the
employer shall, upon a direction from the Board, allow the representative of a trade union access to the property on which the employees reside for the
purpose of attempting to persuade the employees to join a trade union

 However, it will generally be an unfair labour practice for an employer to prohibit employees from soliciting membership during non-working hours,
absent some compelling business justification. Lunch and coffee breaks have been held to be non-working hours.
 S. 77 acts more as a shield (it is not an unfair labour practice), not a sword. It is not an unfair labour practice in itself; rather, it is an employer’s defence to
a charge that a union activist was suspended for encouraging a union 🡪 employer could argue that this was being done during the employee’s working
hours.

S. 77.  Nothing in this Act authorizes any person to attempt at the place at which an employee works to persuade the employee during the employee’s
working hours to become or refrain from becoming or continuing to be a member of a trade union. (breaks and lunch time it is okay to persuade so long as
you don’t interfere with others work)
Note: only employees can solicite on work property, unions leaders cant
94(1) No employer or person acting on behalf of an employer shall (a) particpate in or interfere with the formation or administration of a trade union or the
representation of employees by a trade union; or (3) no employer or person acting on behalf of an employer shall (a) refuse to employ or to continue to employ or
sspend, transfer, lay off or ootherwise discriminate against any person with respect to employment, pay or any other term or condiiton of employment or intimidate,
threaten or otherwise dicipline any person, because the person (i) is or proposes to become, or seeks to induce any other person to become, a member, officer or
represetive of trade union or participates in the promotion, formation or adminstriaton of a trade union

Case and Facts Holding Reasoning and Ratio Notes and Exceptions
Harrison v. Carswell, SCC 1976  A mall owner has sufficient property rights to prohibit a  Property rights of
(pg. 519) unionized worker from engaging in an otherwise lawful picket of owner are superior to
 Worker was engaged in a his employer/ tenant of a shopping mall bargaining rights of the
lawful strike on mall property where  Wilson 🡪 horrible decision picketer
his boss was a tenant

Case and Facts Holding Reasoning and Ratio Notes and Exceptions
Canada Post Corporation, CIRB Was there a violation of s.  Section 95(d) of the Code prohits union  If the employer can
1995 (pg. 302) 94(1)(a) and 94(3)(a)(i)? soliciation at the work place during working show that the activity is
 Workers were going to other No legitimate safety hours, however, nothing in the Code interfereing with plant or
locations to recruit members for concern prohibits an employee who is a member of personal safety the
the union during non-working the bargaining unit from the solicitation in employer is entitled to ban
hours (in the lunch areas) this case – therefore, the employer is prima the activity regardless if it
 C claimed it was a security facie in violation of 94(1)(a). Note, however, that happens during or after
risk the soliciation must comply with conditions that working hours.
 Wilson says crap suit case!! ensure a balance b/t an employers right to
productivity and sound management on the one
hand, and on the other, the employees right to
freely exerice their right of assoc.
 Employer needs to demonstrate a valid
and compelling business reason for restricting
access
Adams Mine   Not the type of activity by the union which
Giving out pamphlets on NDP is protected by the act you are allowed to
election. Employer wanted to particpate in lawful activities in the trade union
prevent this. but this doesn’t give you the right to advance
the union representatives political views.
 Defined Working hours as refers to period
of time during which an employee is required to
undertae his duties and responsibilites. Does not
include pre shift, coffee break, lunch and post
shift, even if employee is being paid for this time
T. Eaton co. [1985] OLRB Rep.
491: DISTRIBUTION OF UNION
LITERATUE. The Ontario Labour
Relations Board held that the
employer had unlawfully interfered
with the formation of a trade union
by applying a blanket rule
prohibiting the distribution of union
literature on its premises at all
times, including when the store was
not open to the public and when the
employees concerned were not
working. Board ruled that the
employer could not prohibit the
occasional distributio of unon
literature before the store
opened, because this activity
would not interfere with the
employers legitimate business
interests. The Store in question
was located entirely withint eh
Toronto Eaton Centre, an enclosed
shopping mall. The malls managers,
Cadillac Fairnveiw, maintained a no
soliciation policy for all areas of the
mall even those rarely used.
According to this policy, union
organizers were prohibited from
soliciting employees to become
union members. The Board held
that Cadillac Faiveiw also had
unlawfully interfered with the
formation of a trade union, because
the challenged policy lacked a
buness justification. The CA
upheld the boards decision (see
below)
Cadillac Fairview v. Union, Ont.  The distribution was  Employer had unlawfully interfered with  The ban included
CA 1989 (pg. 308) allowed formation of a trade union by prohibiting times when the store was
 CF owned mall with Eaton’s literature distribution at all times not open to the public and
as tenant. CF had strict  The employer cannot prohibit the the employees concerned
no-solicitation policy at all times. occasional distribution of union literature were not working
Organizers were effectively before the store opens, because such activity
prohibited from soliciting for union. does not interfere with the legitimate
business purposes. Thus CF’s property rights
had to yield to the employee’s organization
rights.
Canadian Ban of Congress The prohibition of banning
union activity is a violation
of 2(d) and free speech,
but it is justified to create
an appropriate balance, it
was seen as a reasonable
limit. It is not a total ban,
they can do it outside
working hours.

Union Unfair Labour Practices

 The law forbids trade unions from coercing employees to become members, in much the same way as managemnt is forbidden to exert pressure in the
opposite direction.
 Union unfair labour practices are uncommon – the major complaint is based on the duty of fair representation under s. 74
74. Duty of fair representation by trade union, etc. – a union shall not act in a manner that is arbitrary, discriminatory, or in bad faith in representation of any of
the employees in the unit (i.e. forbids trade unions from coercing employees to become members)

 This provision is generally used by individual employees within the union – however, there are two primary reasons that this does not happen often:
Resource problems – individuals don’t have the resources to take on the union; and Peer pressure – from other members in the union

Case and Facts Holding

Milnet Mines Ltd., OLRB 1953 (pg. 309): threats of violence  Ontario Labour Relations Board to dismiss the applicant’s request for
against organizers and supporters of an intervenor union by certification without holding a vote because it considered that such intimidation would
supports of the applicant union have a continuing effect

Canadian Fabricated Products Ltd., OLRB 1954 (pg. 309): the  Application was dismissed
applicant union told employees that it had relations with several of
the companies upon whom the respondent was dependent for  In this case, this was seen to be a violation of s. 76 which declares that “no
business and that, unless the employees of the respondent person shall seek by intimidation or coercion to compel any person to become … a
became members of the applicant, the members of the applicant member of a trade union….”
employed by other companies would see to it that the respondents’
goods were rejected and ultimately the witnesses would find
themselves without work

 Now, we have section 11.1(2)(b), which allows the Board to refuse to hear an application. If it exercises this option, there is a bar of one year for the
same union to reapply
 An individual could also be prosecuted under criminal law, or s. 104 of the LRA for violating the Act.
 Top Down Unionism (Handout): some times ppl are pressured to sign up with a union they allow voluntary recognition unions can go to the employer and
say instead of the formal process can you just voluntarily recocize us. if a union Is Voluntarily reocognized then that union is one the same footing as a
union that went through the fomal organizng drive. The employee in this case may be left out of the loop, but if there is a collective agreement s. 44
requires that it be ratified by a vote.

Getting Rid of a Union

 When a union is certified you have a full year under s. 7(2) to get a collective bargaining unit. During this year no other union can try to replace you and
any attempts to remove the union by employees will be heard.

o If you union doesn’t get a collective agreement at the end of the year, the board will entertain another application from a different union, or, will do
a decertification process
 If a collective agreement is reached, the union gets new protection because under a collective agreement ou can only try and remove the unon during the
last three moths of the collective agreement. (if the collective agreement is longer than 3 years then it will be the last 3 months of the preceding years) pursuant to
s. 7(4)

 If you have a union but they are “absent” you can make an application to the board saying the union should loose their status as a union because they are
no longer acing in their capacity.

o This concept of “abandonment” is what the board has used to get rid of a union that is not acting as a union

o You can make this application at any time during the life of the collective agreement, it doesn’t matter if you are in “open season”

Engage in Unlawful Strike

 This is a violation of s. 81, you can go to the labour board and can seek damages if it was an illegal strike. But realisitically the remedy you want is for the
strike to end.

 Injunctions Handout 4 (KNOW FOR EXAM)- courts are somewhat loathed historically to try and impose affirmative obligations on individuals, however,
when dealing with illegal strikes, because this is an exceptional area the courts are quite prepared to order people to engage in a positive activity- to go
back to work. Further, provides that there is a legislative preference that employers go to the labour board.

 Handout 5 on the Weber case- even when you have torts committed and even criminal activity- GO TO THE LABOUR BOARD, this case is important for
showing us that the labour board has the discretion. Don’t go to the courts if you matter involves an organized work force.

 Further, Section 102 of the Courts of Justice Act- courts have power to give injunctive relief but also indicates a preference for the administrative
process, they do this by putting a number of hurdles or obstacles to getting an injunction in a labour dispute.

Avenues to Stop a Strike

 (1) go to board to seek a declaration under the legislation section 100-103 in the Labour Relations Act (what you need to look at) which you can file with
the court and have enforced as such, this may take you a little more time

 (2) attempt by employer to get an injunction against the illegal activity this is an application to a court

o Courts have interpreted the defintion under s. 102 of “labour dispute” narrowly so as to allow them the jurisdiction to grant injunctions and ignore
the requirements of s. 102.

o The net effect of the issuing of an injuntion will be (unless dealing with real cement heads) that they will obey the injunction, If you are participating
in an illegal workstopage and an injunction is granted, you are basically ordering specific performance and telling people to go back to work.
Duty of Fair Representation
 Obviously begins to operate once you have representation rights, either through the formal certification process or through a voluntary agreement.

 Your obligation to represent flows through most typically, processing and handling of grievances and the way you conduct the negotiations for the
collective agreement

 What the board would like a member of the BU to do before coming with a section 74 application complaining about treatment from the employer and the
union is to exhaust all internal rememdies

 You cannot use the duty of fair representation to attack the union itself or the way it conducts its internal process, for example you cant go to the board
and say that the way the union elects its officers is flawed, of course you can attack this on other grounds, just not under a section 74 application.

 BOP Test that the breach of the duty was on the basis of arbitrariness, bad faith or discrimination. Merely being negatively impacted will not result in
finding of breach of duty

Representation during Negotiation’s

 You also have a duty to represent everyone fairly during the negotiations for a collective bargaining unit, but the board takes a step back here because
the last thing they want to do is to step into the shoes of the negotiator, and so they will give a considerable amount of latitude.

 If you have situation where someone in bargaining unit is concerned about issues being advanced by union during negotiations, board could
have a special investigations officer come down and if your union is bargaining with the employer and not representing your issues properly, or being
discriminatory etc. then it is possible for them to (a) stop negotiations (b) make negotiations restarts and scrap the collective bargaining union (c) or
compromise with them

 If Board saw sever breach of duty to fair representation during the negotiations larry doesn’t think that there is anything in the legilation from
proventing them from

Case Issue Reasoning

Cuddy Food Products What are the remedies remedies (1) damages (2) remove provision (3) start from scratch
Union negotiated with for employees where a Regarding number 3 the board said “there is big difference between removing a couple of
employer and concluded CA has been concluded offending provisions and the power to bring an entire CA to end for all purpsoes, the rationale is
a CA without getting and it was based on based on the “innocent employwer”
approval from employees unfair labour practices? Innocent Employer: CA process would be undermined by the introduction of the notion that an
(pre ratification vote employer who has not violated the act could loose all the fruits of his acts because of the acts of a
requirement) union who has violated the act….”
Remedies for Interference with the Right to Organize
 Note the board is not required to here every allegation that comes forward eg- bad faith allegations
 Boards in most jurisdictions have a broad legislative mandate to provide remedial relief – the legislature has essentially left it to the discretion of
boards to determine the appropriate remedy
o 96(4) Remedy for discrimination – when anyone acts contrary to this Act, the board may
(a) Order anyone to cease doing the acts complained of
(b) Order anyone to rectify the acts complained of
(c) Reinstate employment or compel hiring with or without pay, benefits, etc.
 Note that s. 96(4) is permissive (“may”) 🡪 the Board is not required to inquire into allegations of unfair labour practices.
 Note also that s. 96(4) states “without limiting the generality of the foregoing…(lists some remedies)” 🡪 this means that the
Board has a wide discretion to impose remedies (use their imagination) 🡪 included in this general residual power is the power to
award damages and compensation, but note that the damages cannot be punitive.
 Labour relations legislation typically provides for both quasi-criminal and administrative remedies
 Further, an aggrieved party can launch a prosecution pursuant to ss. 104-107 of the Act, but only with the leave of the Board ( see s. 109)
 Most of the administrative remedies that seek to protect union organizing actiivins are process-oriented, int hat they attempt to redress the harm caused by
illegal emploer conduct while leaving employees to chose for or against collective bargaining.
 Until 1998, the OLRA provided, in section 11, for the reemdy of certaiy a union which had been the victim of serious unfair labour practices, even where
the union could not prove that it had the support of a majority of the bargaining unit. (REMEDIAL CERTIFICATION)

Case and Facts Holding Reasoning and Ratio Notes and Exceptions
Westinghouse Canada  The employer was directed to give employees of the old plant a right of
Ltd., OLRB 1980 pg. 310) The first refusal on the new jobs, with no loss of seniority or fringe
 Relocation of Board benefits, and to pay a relocation allowance to those employees who
unionized plant to location listed a chose to move. Also, the union received a list of the employees at the
where there was little union broad new plant, access to the company bulletin board, and the union could
presence in order to save range of address employees during working hours. Union’s expenses in
money remedie reorganizing the new plant were also paid.
s
Union v. Radio Shack,   The board directed a fairly significant damages award in  This may be the high
OLRB 1980 (pg. 310) The addition to specific remedies, including the “bad employer notice” watermark of the
 R went to extreme Board informing employees of the violation of their rights which had to be development of labour
lengths to avoid impose posted. board’s remedies
unionization of its d  Radio Shack ordered to make substantive proposals that were  So long as the
employees and committed remedie acceptable to the union including a Rand formula award is compensatory
many ULPs. s  Remedy is not a punishment purpose is to mend the and not punitive!
 Set out controls on relationship. 
the boards, otherwise  See page 310 “the mere fact that the remedy is novel and that
unrestricted remedial the remedy is innovative, shoud not be a reason to find it
powers unreasonable” FAMOUS
 Larry- this case shows us why administrative tribunals are
better suited for
labour disputes, it is because they can ensure the orders are carryout
unlike the courts.

Different  Award unions who have been victims of unfair labour practices, their organizing costs and legal expenses incurred as a result of the
Kinds of violation
Remedies
 Ability to award damages (best known and most traditional)

o Note: Board does not have the power to award costs, but the award legal expenditures or expenses which they view as different but
you are just basically putting a different jacket on the same monkey!!

Important to understand that you need to be carful drawing any general principles from these cases (below) because they are driven by the indemnity
and past history of the employer:

Tandy Electronics and United  The award was upheld by the SCC  So long as the award of  Mere fact that
Steelworkers the board is compensatory damages are novel should
 This is the judicial review and not punitive; so long as it not be a reason for finding
application of Radio Shack, above. flows from the scope, intent, it unreasonable
 and provision of the act itself,
the award of damages is in
the jurisdiction of the board
National Bank of Canada v. Retail  There was a clear finding of
Clerk’s Int’l Union, CLRB 1982 anti-union animus.
(pg. 310)
 During a brief 3-day period  The Board went on to find that the
when a statutory freeze was not in union should be considered the bargaining
effect, the Bank decided to close unit for the non-unionized branch.
down the branch and ship their
business to a non-unionized  The Board ordered the employer to
branch. Union argued ULP. give employee lists at the new branch to
(claimed it was for economic) the union, allowed the union to hold
 The Board extended meetings at the branch during working
certification to the new branch and a hours, and the bank had to send a letter to
$144,000 trust account all its employees across Canada saying it
violated the employees’ rights.

 Also ordered a $144,000 trust fund

to be set up by bank to be used for
promoting the OLRA’s objectives among
employees.

 These remedies were reviewed by

the SCC in the decision below.
National Bank of Canada v. Retail  The Board exceeded its jurisdiction  This is the litmus test for  Note that the trust
Clerk’s Int’l Union, SCC 1984 (pg. in fashioning remedies. upholding a board’s remedy: an find and the letter were
312) essential element of the punitive remedies, and
 This is the JR application of board’s remedial powers is the Board cannot impose
the above case. that there be a relationship punitive remedies.
 Bank appeals with respect between the act alleged, its
to the trust fund and the letter to consequences, and the
be sent out, saying that it is remedy imposed (MUST BE A
humiliating and vexatious. CORRELATION)
 The creation of a trust
fund and letter referring to it
resulted in the promotion of
organization to those employees
and does not remedy or
counteract the harmful
consequences of the closing of
the unionized branch
 This type of penalty is
totalitarian and as such alien tot
hetratdon of free nations like
Canada, even for the
respressionof the most serious
crimes.
Baron Metal Industries, OLRB  The Board set out a number of  Board ordered new vote The Board also granted
2001 (pg. 316) remedies. to be held within 6 months, at a additional damages for
 BM hired a criminal gang in time to be determined by the intimidation and loss of the
an attempt to try and prevent union. right to bargain.
unionization. They uttered threats  The union was given the
to the employees. names, addresses, and
 The original certification telephone numbers of all
vote ended in a tie. employees eligible to participate
 This was decied pre s. 11 so in the new vote; gave the union
is now irrelevant the right to distribute leaflets in
the workplace prior to the vote;
directed the employer to post a
notice that they had
contravened the Act; directed
 that all employees in the
bargaining unit attend the
monthly union meetings;
directed the employer to
reimburse the union for its
organizing costs.

Prosecution under the Criminal Code (Rarely Used)

 425. Offences by employers – an employer may be prosecuted for refusing to employ, or fire, an individual on the sole basis that they are a member of a
trade union
 However, cases of involving criminal prosecutions are rare
o Partially due to prosecutorial discretion
o 109(1) Consent – no prosecution under this Act shall be instituted except with the consent in writing of the board (largely based on 72(a) &
(b))

Case and Facts Holding Reasoning and Ratio Notes and Exceptions
R. v. K-Mart Canada Ltd., Ont. CA 1982 Guilty of  They were fined $25,000 originally, and the Ont. CA  In business
(pg. 317) unfair increased the fine to $100,000. terms, this fine might
 K-Mart hires security company to labour  example of the same theme in other cases board have cost less than the
get information about activities of union, practices ordering damages based on the conduct of the employers costs associated with
they are opposed to unionization actions creating humiliation, assults on dignity etc. the concern having a union take
 They basically engage in unfair is that the board cannot order punitive damages. hold.
labour practices to dissuade union cert.
vote.

Interim Remedies
 The power of labour boards to grant interim relief was granted in 1992; however, it was taken away in 1995
 The new legislation that reinstates this power came into force in June of 2005
o 98. (1) Board power re interim orders – on application in a pending proceeding, the board may
(a) Make interim orders concerning procedural matters
(b) Subject to subs. (2) and (3), make interim orders requiring the reinstatement of an employee
(c) Subject to subs. (2) and (3), make interim orders respecting terms and conditions of employment for an employee who has not been
terminated but whose conditions of employment have been altered
#S. 98. (2)  The Board may exercise its power under clause (1) (b) or (c) only if the Board determines that all of the following conditions are met:
           1.    The circumstances giving rise to the pending proceeding occurred at a time when a campaign to establish bargaining rights was underway.
           2.    There is a serious issue to be decided in the pending proceeding.
           3.    The interim relief is necessary to prevent irreparable harm or is necessary to achieve other significant labour relations objectives.
           4.    The balance of harm favours the granting of the interim relief pending a decision on the merits in the pending proceeding. 

#(3)  The Board shall not exercise its powers under clause (1) (b) or (c) if it appears to the Board that the alteration of terms and conditions, dismissal,
reprisal, penalty or discipline by the employer was unrelated to the exercise of rights under the Act by an employee. 

#(4)  Despite subsection 96 (5), in an application under this section, the burden of proof lies on the applicant.

Remedial Certification
 Wal-Mart is seen as the impetus for the Ontario government removing the power of labour boards to issue remedial certification – the “Wal-Mart Bill”
 The bill also placed tighter restrictions on Union submissions concerning certification in terms of evidence of union support & the ability of employers to
challenge that evidence
 However, much of what was done by the Wal-Mart bill has been reversed by the Liberal government – therefore, Wal-Mart is once again good law
 Remedial certification is seen as a last ditch remedy, when holding a vote would be pointless 🡪 so in order for remedial certification to happen, no other
remedy must be effective. This is a last resort mechanism.

11. (1)  Subsection (2) applies where an employer, an employers’ organization or a person acting on behalf of an employer or an employers’ organization
contravenes this Act and, as a result,
         (a)    the true wishes of the employees in the bargaining unit were not likely reflected in a representation vote; or
         (b)    a trade union was not able to demonstrate that 40 per cent or more of the individuals in the bargaining unit proposed in the application for
certification appeared to be members of the union at the time the application was filed.
      #(2)  In the circumstances described in subsection (1), on the application of the trade union, the Board may,
         (a)    order that a representation vote be taken and do anything to ensure that the representation vote reflects the true wishes of the employees in the
bargaining unit;
         (b)    order that another representation vote be taken and do anything to ensure that the representation vote reflects the true wishes of the employees in
the bargaining unit; or
         (c)    certify the trade union as the bargaining agent of the employees in the bargaining unit that the Board determines could be appropriate for
collective bargaining if no other remedy would be sufficient to counter the effects of the contravention. 
 Case and Facts Holding Reasoning and Ratio Notes and Exceptions
United Steelworkers of America v.  The  The actions of the employer so tainted the views of the  If employer leaves
Wal Mart, OLRB 1997 (pg. 291) board employees that the vote was not a true reflection of their employees with the
 Managerial rep refused to issued wishes impression that they must
answer question about whether remedial  The board asks what the impact of the statements choose between the union
the store would close if union was certificati would be on a REASONABLE, but VULNERABLE and their job, this will be a
successful on under EMPLOYEE ULP
 Allowed an employee to s. 11  By failing to address the result of union success,  However, in a
read letter stating that the store management implicitly threatened that the store would close or bargaining context,
would close there would be a loss of benefits – this made it impossible to employer can state that
 Manager suggested that ascertain the employees true wishes operation may close if
some economic benefits would  The line between employer free speech and union does not concede
disappear if there was a union. intimidation must be determined on the facts of each case some terms (economic v.
anti-union)

The Professional Responsibility of Lawyers

 Lawyers practicing in the field of labour relations are not uncommonly faced with clients who are contemplating illegal conduct
o Further, the ideological overlay over employer-union relations may make the position of labour lawyers particularly difficult
o The problems of ethics are relevant on both the employer and union sides
 The cannons of legal ethics of law societies across Canada prohibit a lawyer from knowingly helping or encouraging a client to break the law, or
advise on how to do so in a way that might help avoid or limit punishment. Larry says take this with a grain of salt because it happens all the time,
just need to be very careful when doing it.

Case and Facts Holding Reasoning and Ratio

Law Society v. Rovet, LSUC 1992   The solicitor engaged in professional misconduct and was barred for practicing for
(pg. 319) LSUC one year – bencher’s decision.
 Lawyer provided unethical recomme  You cannot advise illegal activities, but there is nothing to prevent you form telling an
advice and arranged to provide nds 6 employer if you engage in such and such of an activity, there are certain consequences.
non-union contract workers to month
prevent certification suspensi
 Allegations of on
misappropriation of funds
Chapter 6 – The Acquisition and Termination of Bargaining Rights
 The primary focus of labour legislation is to avoid industrial conflict
o The Certification Procedure is a Substitute for Recognition strikes, if you want to become the representative of a group of employees those
employees are not able to cease work for the purpose of forcing recognition. Section 79(2) important section: You cannot engage in a work
stoppage, you are expected to seek voluntary recognition or go through the civilized process of having people sign signatory cards and vote etc.
 There are TWO KEY PRINCIPLES OF THE WAGNER ACT MODEL: (1) Majority rule (2) Exclusivity of bargaining rights

Introduction
 In every Canadian jurisdiction, there is a statutory procedure – certification – which allows a union, upon proving that it has majority support among a unit
of employees, to become the exclusive bargaining agent for those employees and to compel their employer to bargain with it on their behalf. An
alternate, but less common route is “voluntary recognition”

Voluntary Recognition
 Voluntary Recognition: is an ALTERNATIVE to the formal certification process it is a means by which you can acquire bargaining rights, (ss. 7(3), 18(3),
56)
 Three Main Advantages to VR: (1) avoids expense and delay that can occur with certification procedures (2) gives the parties a free hand in defining the
bargaining unit, as we will see if you go to the board with application for certification the board has the final say in the scope of the BU they can reject your
proposal and accept an employers counter proposed BU or reject both- on the other hand if it is VR the board is not involved and they can fashion their
own BU that works well for them (3) really starts the relationship off on the righ foot by eliminating the adversarial atmosphere/ relationship
 Problems with VR: potential for sweet heart deals between employer and union or a union that looks like one but is not and effectively denying the people
in the BU real representation. (sometimes if employer finds out going to organize if they don’t like union they may voluntary recognize a sham union to
prevent the unfavourable one)

Section 66- within the first year of a VR agreement any employee or a union representing an employee can apply to the board seeking a declaration that the union
is not entitled to recognize the employees, the board can investigate and under sub (2) to hold a vote, or can declare that union does not representn employees
and can terminat any representation rights. The board can step in and basically wipe it out in the first year. Sub (3) states that when you get this application the
onus of establishing that ht etrade union was entitled to represent the employees during the agreement rests on the parties the employer and those who they
chose to represent wil have the onus.

Section 51(4) concerned with situation where VR and then you immediately strike a CA which contains a closed shop provions, this obviously prevents future
people from gaining employee at that place. Section 51(4) says you ant have closed shop provision unless you can show that 55% of the employees in the BU
were members of your union at the time you entered into the agreement. Legislation now requires ratification vote for a CA and this inclues VR

Certification Recognitiion (ss. 7-11)

Three different Methods:
 1. Remedial Certification Process (Section 11): Last resort and used in extreme circumstances, still avilable

2. Certification Based on Membership Evidence: use to be most popular method by unions (no longer available)

3. Representation Secret Vote Process: application to board, accompanied by membership evidence, the board will look at this, and if they determine 40%
or more of the proposed BU are members of the union they will order a vote,

o This vote will operate as a “quick vote process” it must take palce within 5 days of the application being filed (not including weekends) Must be
secret ballot and if 50% plus 1 of the votes cast in favour the union then the union becomes certified.

o The number is 50% plus 1 of those who ACTUALLY vote, not based on the whole number of those affected.

o Union must give copy of their application to the employer but under s. 7(13) it will not have the names of the people who signed the
membership cards.

o The employer has two days to respond to the application and get it back to the board under s. 7(14).

 Two options (1) propose a different bargaining unit (2) challenge the unions estimate of the number of people in the proposed
bargaining unit. If employer is correct-what if memebership falls below 40%, board declares that vote that took palce never should
have taken place and board will dismiss the certficiate  

Comparison
 In either case, the union is prohibited from exercising economic sanctions in its efforts to acquire bargaining rights
 And in either case, it becomes the bargaining agent for all of the employees in the unit, including the minority who did not support certification – majority
rule and exclusivity – two key principles in labour law
o However, it is meaningless to talk about the certification process until a voting constituency has been established by the bargaining unit
structure

AUTHOR & PIECE DESCRIPTION

Roy Adams, “Union  The North American practice of union certification is very unusual from a comparative perspective
Certification as an  Other systems do not divide the labour force into such tiny bargaining units and do not require representatives to win
Instrument of Labour majority support in each micro-unit
Policy: A Comparative
Perspective
  Greater trade has been accompanied by greater mobility of capital
 In the advanced nations, globalization has had mostly a negative effect on organized labour’s bargaining power and political
Sandford Jacoby, influence
“Social Dimensions of  Historically, employers were willing to agree to collective bargaining when unions could promise to “take wages
Global Economic out of competition”; however, with international markets, unions are unable to standardize wages across borders
Integration” (diminishing unions’ usefulness to employers)
 The threat of easy relocation further diminishes union’s bargaining power
 It is these factors that have caused unionization rates in the public sector in advanced countries to hold up better
than other industries
 Whereas employees used to work for an identifiable common employer, today they occupy an often-uncertain location
Harry Arthurs, on a global production and distribution chain that links transnational operations, their divisions, their subsidiaries and allies to
“Reinventing Labour a host of ephemeral local contractors, brokers, and distributors
Law for the Global  Workers in the global economy share none of the above – they are self employed, are reluctant parties to the “new
Economy psychological contract” of discontinuous, serial and sometimes, contingent jobs, or work under other coercive arrangements
that leave their legal status unclear, the economic future uncertain, and their sense of solidarity greatly attenuated
 Because competing groups of workers are located in jurisdictions that are sovereign nations, not stated in a Federal
union, there appears to be no way to bring them under one overarching legal regime

The Appropriate Bargaining Unit

 A bargaining unit is a group of employees defined on the basis of the employer for whom they work and the position they occupy

S. 1(1) 🡪 “bargaining unit” means a unit of employees appropriate for collective bargaining, whether it is an employer unit or a plant unit or a subdivision of
either of them

 Bargaining units perform two key functions:

o 1. It serves as an electoral constituency for the purposes of certification and decertification.
o 2. It serves as the basis for collective bargaining, because a collective agreement drawn up at the bargaining table normally covers all employees
in the bargaining unit.
#9.  (1) Subject to subsection (2), upon an application for certification, the Board shall determine the unit of employees that is appropriate for collective
bargaining, but in every case the unit shall consist of more than one employee and the Board may, before determining the unit, conduct a vote of
any of the employees of the employer for the purpose of ascertaining the wishes of the employees as to the appropriateness of the unit. [this is rare]
      #(2) Where, upon an application for certification, the Board is satisfied that any dispute as to the composition of the bargaining unit cannot affect the
trade union’s right to certification, the Board may certify the trade union as the bargaining agent pending the final resolution of the composition
of the bargaining unit.
      #(3) Any group of employees who exercise technical skills or who are members of a craft by reason of which they are distinguishable from the other
employees and commonly bargain separately and apart from other employees through a trade union that according to established trade union
practice pertains to such skills or crafts shall be deemed by the Board to be a unit appropriate for collective bargaining if the application is made by a
trade union pertaining to the skills or craft, and the Board may include in the unit persons who according to established trade union practice are
commonly associated in their work and bargaining with the group, but the Board shall not be required to apply this subsection where the group of
employees is included in a bargaining unit represented by another bargaining agent at the time the application is made. [thus three requirements:
1) exercise technical skill that distinguishes them; 2) the craft commonly bargains separately from other employees 3) the union seeking to
represent them must have traditionally represented this kind of workers.]
# (4) A bargaining unit consisting solely of professional engineers shall be deemed by the Board to be a unit of employees appropriate for collective
bargaining, but the Board may include professional engineers in a bargaining unit with other employees if the Board is satisfied that a majority of the
professional engineers wish to be included in the bargaining unit.
      #(5) A bargaining unit consisting solely of dependent contractors shall be deemed by the Board to be a unit of employees appropriate for collective
bargaining but the Board may include dependent contractors in a bargaining unit with other employees if the Board is satisfied that a majority of the
dependent contractors wish to be included in the bargaining unit.

General Principles
 The parameter of the unit will affect the ongoing employer-union relationship in several ways:
o First, there may be stronger pressure toward the compression of wage differentials and toward uniformity in other terms of employment for
everyone covered by the agreement (however, the failure of an all-embracing unit to address the needs of special groups may undermine morale
or make recruiting difficult)
o Second, if there are a multiplicity of units within a single enterprise, disputes will occur over which collective agreement governs particular
tasks
o Third, the degree of economic pressure that each party can bring to bear on the other will also be affected by the design of the bargaining unit
 The size and shape of the unit can have a dramatic effect on bargaining power and on the frequency and impact of strikes
o If there are many units in a particular enterprise, there is the possibility of a number of legal strikes at different times, which may be quite disruptive
and therefore, quite effective as a bargaining tactic (however, if only one unit is on strike, and its members are few in number or not particularly
indispensable, the employer may easily be able to continue operating despite the strike)
 The design of bargaining unit structures affects economic power in another way – each wage settlement is strongly influenced by “coercive
comparisons” to earlier settlements for other units – “leapfrogging”
  The optimal unit for effective long-term collective bargaining may be larger than the group within which a union can, in the short run, obtain the
majority support necessary to get collective bargaining started at all

Delineating the Bargaining Unit

 In the private sector, boards generally have wide discretion to determine the appropriate unit (much more specific in the public sector)
 In terms of parties, they are able to determine their own bargaining unit definition in a voluntary recognition situation or in a certification situation if the
Board agrees with it - it is only where the mutually proposed bargaining unit violates some statutory prohibition or policy that the board will refuse (i.e.
where they agree to include managers)
o Recognition clause - the employer recognizes the union as the exclusive bargaining agent for the employees based on the certification
certificate; however, in practice, the parties will agree to include or exclude certain people from the certified unit (or the parties can seek an
amendment of the certificate)
 The traditional approach to determining an appropriate bargaining unit was set out in Insurance Corp. of British Columbia and C.U.P.E.: the preferred
bargaining unit is a broad one compromising all of the employees of a single employer – there are a number of justifications
o The simplest reason is that such a unit is administratively efficient and often facilitates collective bargaining of both parties
o It does not impede lateral mobility of employees, and it allows for a common framework of employment conditions
o It may also promote industrial peace and stability, by making strikes and lockouts less likely than if there are several separate sets of negotiations

Sick Kids Test for Appropriate BU

 The Board will look at the factors outlined in The Hospital for Sick Children (pg. 331) that are to be considered in determining the appropriateness
of the unit:
1. The employer’s administrative structures
2. Whether the employees have a community of interest having regard to the nature of the work performed, the conditions of employment, and their
skills
3. The employees’ administrative structures
4. The geographic circumstances
5. The employees’ function coherence (interdependence or interchange with other employees)
6. The centralization of management authority
7. The economic advantages to the employer of one unit versus another
8. The source of work
9. The right of employees to a measure of self-determination
10. The degree of employee organization and whether a proposed unit would impede such organization
11. Any likely adverse effects to the parties and the public that might flow from a proposed unit, or from fragmentation into several units
 The test can be summarized as a two part test: 1. The employees in the bargaining unit must have sufficient community of interest that they can
bargain together 2. The bargaining unit must not create serious labour relations problems for the employer.

Case and Facts Holding Reasoning and Ratio Notes and Exceptions
Metroland Printing, Publishing The Board  The court will take a more flexible approach to what  Prior to this case,
& Dist., OLRB 2003 (pg. 330) certified the constitutes a “community of interests” part time and casual
 The union sought bargaining unit,  Fragmentation disturbs industrial stability, workers were routinely
certification of an “all including administrative efficiency, and decreases bargaining power excluded from the
employee” bargaining unit part-time  The employer has not demonstrated that bargaining unit because
which included all employees of employees. fragmentation is necessary in order to avoid serious labour they did not share the
Metroland in Midland, save and relations problems same interests
except supervisors  See movement away from exclusion of part time
 Employer wanted to employees. Board has no problem to include both part
exclude part-time and temp. and full time based on case by case.
employees and co-op students
(fragmented regime)
Tear Con Industries (2003) So even though  TEST: The suitability of the employers proposed BU is  EXAM- significance
Union was proposing a tag end unions proposal not the proper issue to address initially, we are not requ. to of choosing one union over
union and the employer was was viable unit, determine the MOST appropriate BU. Our task is to det. If another.
proposing a different one. because it would the unions proposed BU is appropriate, ie. viable for CB and  Good case to set out
Employer said they wanted to cause labour whether or not it will create serious labour relations for the the philosophy and
include both the left over people relations issues employer. So you don’t compare the proposals between approach taken by the
in coding and plastics for the employer union and employer, you look first to the unions proposal and board and how they make
departments for tag end unit. the board said no make your decision based on that. In sum, when there are their decisions. And good
to it and voted for two competing proposals it is not which one is better, example of the fact that
employers deference is always given to the unions proposal. their decision will be based
proposal. on union representation.

Case and Facts Holding Reasoning and Ratio Notes and Exceptions
CIBC v. B.C. Gov’t Employees  The Board declined to include the  It is important to  Part-time/casual
Union, CLRB 1992 (pg. 336) causal employees identify a “real community of employment has been
 The Board considered the interest” between the the fastest growing
circumstances under which casual casuals and the others in the segment of the Can.
employees should be included in unit Market. Casual
the bargaining unit  An important Employees: Ontario
consideration is the does not have a
continuity of employment – if “causal employee”
employer has created a regular category, we view them
pool of standby employees, it as part time or full
 should be viewed as an integral time.
part of the work force
ICBC 329 around  Distinction for this case to the CIBC
Lawyer said appropriate union was Case is based on scope of bargaining
all of the employees across the union (which jobs are in the BU, not which
provine was the approapriate group. individuals) this will decide whether or not
There were some people that didn’t there is any union rep. at all.
want to be in a huge union. CUPE  In this case both the employees and
argued that priority concern for employers wanted a CA (this is not like the
board should be express wishes of norm that we have studied in cases above,
empleyess. Boward said it would nto normally employer don’t want union) the
be a controlling factor. government in this case wanted a union.
The short term concern was not an issue
here. What they wanted to focus on was,
“what would make the most sense for
bargaining for the provice.”
 Page 329- Factors that Favour a
Larger Comprehensive Union-
administrative expeidencey, greater
convience for bargaining, creates lateral
movement availabliy.
 Board looks at public interst

Scope of Bargainning Unit

First Situation- Voluntariness
 Once union has become certified they will give notice to organize, during those negotiations the parties can re open the issue of the scope of the bargaining
unit, which is different.

 These are the limits on the parties if they seek to alter the BU after the certificate is issues. (1) must do it in accordance with the legislation (ie cant include
managers cause prohibited) and (2) must both agree (if either parties insist that the scope of BU remains the state of certificate, that is what will happen)

Second Situation- Accretion

 This is expanding number of individuals in the bargaining unit who will be covered by certificate

 Situation where you have a company and you end up enlarging your workforce significantly, consequently, you have enlarged the union, and the question is
 does your union have representation rights over these new employees.

o What can happen, is that the matter can be taken care of through the recognition clause. When the union becomes recognized the certificate will
generally say the union represents all employees other than… or will say all employees engaging in blank work.

o Note the certification does not identify individuals it identifies job categories.

 Situatin where you are expanding the type of work you do, Board has insisted that if you are trying to put two companies with different work into one certificate
than you need majority support.

o you can also make an application to the board to alter a BU, and operate under s. 99(7),

o You could also sit down with employers and voluntarily agree to amend the CA

Bargaining Unit Determination and the Organizing Drive

Case and Facts Holding Reasoning and Ratio Notes and Exceptions
SORWUC v. CIBC, CLRB 1977 Certification  The appropriate bargaining unit is the one that allows  However,
(pg. 339) was given for employees to exercise their rights under the Labour Code – the unionization on this
 The applicant asked to the single practical effect of the employer’s view would render it impossible to basis ultimately
be certified for eight branch bargain collectively b/c of the difficulty in organizing such a broad failed because of the
bargaining units, each scope of employees small number of
corresponding to a different  While all of the factors Sick Kids must be considered, in this employees, large
branch of the banks context, the most prominence should be given to the need to number of units, an the
 Bank claimed facilitate bargaining frequent transfer of
appropriate unit was all  Board said branch by branch organization would NOT staff
branches across Canada, create chaos. Said it is not publically owned monopoly like case  Board said we
this would be the only way above. If there is a work stoppage at a single branch, the impact don’t have to find the
to get rational bargaining. on the economy will have zero effect. BEST unit but just an
 Clearest departure appropriate unit.
from large comprehensive
unions.
Syndicate des Employees de  The  An isolated location such as Rimouski calls for the  This case
Rimouski v. Nat’l Bank, CLRB board certified establishment of clusters of branches as a single bargaining demonstrates the
1986 (pg. 345) the unit unit flexibility of the board
 The union sought  It was not necessary to demonstrate majority support at each  Cluster
certification for all five individual branch – only among the aggregate employees approach is common
branches of the Bank in  The unit was certified so as to give the employees a in the U.S. but not
Rimouski as a single reasonable chance of exercising their rights under the legislation. Ontario
bargaining unit  Board made important point, that while in many cases it makes
 sense to fashion BU in a similar way as the company is organized,
but this is not a prerequisite.
National Trust No. 1, OLRB   The board sided with the union on the erroneous Note that a trust is
1986 (pg. 347) Certification assumption that the union had majority support in each of the provincial legislation
 Union applied for was granted seven individual units whereas a bank is
certification of seven  In other words, there would be no tension between the federal legislation.
branches in the Greater bargaining unit’s role as an electoral district and its collective
Toronto area bargaining function.
 Company responded  Board is very hesitant to join units in a cluster unless there is
saying we wanted BU more majority support in each of the separate units, because if you are the
along the lines of their union, you can identify three branches, you have overwhelming
admistrative structure. Wanted support in one, and strong support in the second, and no support in
BU to be a single branch, or all the third. So what do you do, you put an application for 3 branches,
branches in Toronto etc. and the one branch will overcome as a whole.
National Trust No. 2   Refused certification because the union only had majority  Only in a vote
Certification support in four of the seven locations position in one of the
refused  There needs to be majority support in each of the remaining four
locations! locations
United Rubber Union v.  The  Followed the approach in SORWUC  This case led to
Michelin Tires, CLRB 1979 board  The interest in allowing employees to unionize and the Michelin
(pg. 348) rejected exercise their collective bargaining rights favoured the Amendment requiring
 Two large plants far employer’s conclusion that Graton was an appropriate unit on its own inter-dependent
apart in the province argument operations to be a
 Michelin argued that single bargaining unit
appropriate unit was both plants
because of dependency
The Michelin Amendment
 As a result of the Board’s decision, the Nova Scotia legislature passed s. 26, commonly known as the Michelin amendment to overturn the board’s
decision
 Under s. 26, when an employer operating independent manufacturing locations so requests, the board shall determine that the appropriate unit is a unit
combining employees from all locations

AUTHOR & PIECE DESCRIPTION

 The Amon Principle: any outside union seeking to represent employees unrepresented by the current union will be
required to gain the support of those employees already represented by the current union
Brian Langille, “The  Separately certifying a number of units that are functionally interdependent would lead to instability and undemocratic results
Michelin Amendment in (decision to strike by one unit has impact on other units without their consent)
Context”  Therefore, the Amon principle successfully achieves a reconciliation of the conflicting purpose of the bargaining unit: it
enables organization to take place while at the same time ensuring that an un-fragmented and thus stable and broad based
bargaining structure results in the long run
 Advantages and disadvantages- larger unions more stable? But basically creating environment where there will be no
unionization.

Determining Employee Support

 The certification process is built around the concept that the choice of whether or not to have collective bargaining is given to the majority of employees
in the bargaining unit; however, there are divergences in how the presence of absence of majority support is assessed
 In North America, there are basically four models for determining whether most employees in as bargaining unit wish to be represented by a trade union
o In the U.S., there is a representation vote in every case, preceded by a fairly long campaign in which the employer is allowed to be a full
participant
o There are three Canadian models:
 A quick vote in every case (pioneered in Nova Scotia) – within 5 days of the certification application being filed (this eliminates many of
the opportunities for unfair labour practices)
 Primary reliance on membership evidence (generally in the form of signed membership application cards), with a brief period after the
certification application is filed to allow for change-of-heart petitions
 Primary reliance on membership evidence as of the date of application
 However, the trend in Canada has been toward a mandatory vote in all cases (in Ontario, as of June of this year, we have still made mandatory voting –
except construction)
o However, there is still a major difference between the U.S. style vote and the “quick vote” in Canada
Ontario Procedure
 Works off the quick vote process, which is suppose to discourage unfair labour practices.
 8(1) Voting constituency – the board may determine the voting constituency to be used for a representation vote and shall take into account: (a) the
description of the proposed bargaining in the application; and (b) the description of the bargaining unit proposed by the employer
o 8(2) Direction re representation vote – if more than 40% of the proposed unit appears to be members of the union, the board shall direct that a
representation vote be taken
o 8(3) Membership in trade union – determination under (2) shall be based on information provided in the application
o 8(4) No hearing – the board shall not hold a hearing when making a decision under (1) or (2)
o 8(5) Timing of vote – unless the board orders otherwise, the vote shall be held within 5 days after the certification was filed (excluding Sat., Sun.,
and holidays)
o 8(6) Conduct of vote – shall be by anonymous ballots
o 8(7) Sealing of ballot box, etc. – the board may segregate ballots – this occurs when the employer challenges the number of people in the
bargaining unit
o 8(8) Subsequent hearing – following representation vote, board may hold a hearing in order to dispose of the application for certification. (3
weeks later)

Paul Wiler- “when you have a long election campaigns you get a lot of infractions and you get a lot of problems between groups of employers and employees. If
Wyler had to choose between lengthy campaigns like in the USA, and a card based system (certification based on membership percentage) he choices the cards.
He argues, that the secret ballot, rightly or wrongly does clearly provide legitimacy to the process, people understand that to be an absolutely essential part of any
electoral process. Wyler prefers the quick vote procedure, and says the short campaign makes it very difficult for employers to mount ant union campaigns.” Larry
thinks this is bullshit, it makes it seem like employers just sit on their hands until the certification comes from the board. This certification takes a long time and the
pre vote period is an opportunity for the employer to mount anti union campaigns.

 In 1998, the government added 8.1

 8.1(1) Disagreement by employer with union’s estimate – if the employer disagrees with the trade union’s estimate of the number of individuals in the
unit, the employer may give notice that it disagrees
o Under 8.1(3), the notice shall be given within two days of the employer receiving the certification application (employer doesn’t see the names or
membership information – this is secret under s. 119) and, under 8.1(2) the notice shall include: (a) description of the proposed bargaining unit; (b)
employer’s estimated number of workers in the unit described in the application; and (c) if the employer proposes a different unit, the number
included in that unit
o 8.1(4) Sealing of ballot boxes – if the board receives a notice under (1), it shall order that the ballot boxes be sealed
o 8.1(5) Board determination – sets out the courses of action available if the board receives notice under (1)

Voluntary Recognition
 Historically, voluntary recognition was very important and was the only way to acquire bargaining right. The whole concept of statutory certification was to
eliminate the need to use economic sanctions to acquire bargaining rights
  There is no process in the Act for how to acquire voluntary recognition
 Note: A voluntarily recognized union is not certified. It is not the equivalent of certification. You are, however, a bargaining agent.

#S. 7. (3) Where an employer and a trade union agree that the employer recognizes the trade union as the exclusive bargaining agent of the employees in
a defined bargaining unit and the agreement is in writing signed by the parties and the parties have not entered into a collective agreement and the Board
has not made a declaration under section 66, another trade union may apply to the Board for certification as bargaining agent of any of the employees in
the bargaining unit defined in the recognition agreement only after the expiration of one year from the date that the recognition agreement was entered into.
This protects voluntarily recognized unions from being ‘raided’ for a one year period.

#S. 18. (3) Where an employer and a trade union agree that the employer recognizes the trade union as the exclusive bargaining agent of the employees in
a defined bargaining unit and the agreement is in writing signed by the parties, the Minister may, upon the request of either party, appoint a conciliation
officer to confer with the parties and endeavour to effect a collective agreement

S. 56. A collective agreement is, subject to and for the purposes of this Act, binding upon the employer and upon the trade union that is a party to the
agreement whether or not the trade union is certified and upon the employees in the bargaining unit defined in the agreement. 

S. 66. (1) Where an employer and a trade union that has not been certified as the bargaining agent for a bargaining unit of employees of the employer enter
into a collective agreement, or a recognition agreement as provided for in subsection 18 (3), the Board may, upon the application of any employee in the
bargaining unit or of a trade union representing any employee in the bargaining unit, during the first year of the period of time that the first collective
agreement between them is in operation or, if no collective agreement has been entered into, within one year from the signing of such recognition
agreement, declare that the trade union was not, at the time the agreement was entered into, entitled to represent the employees in the bargaining unit.
      #(2) Before disposing of an application under subsection (1), the Board may make such inquiry, require the production of such evidence and the doing
of such things, or hold such representation votes, as it considers appropriate.
      #(3) On an application under subsection (1), the onus of establishing that the trade union was entitled to represent the employees in the bargaining unit
at the time the agreement was entered into rests on the parties to the agreement.
      #(4) Upon the Board making a declaration under subsection (1), the trade union forthwith ceases to represent the employees in the defined bargaining
unit in the recognition agreement or collective agreement and any collective agreement in operation between the trade union and the employer ceases to
operate forthwith in respect of the employees affected by the application.
  S. 66 addresses the problem with “sweetheart deals” that might be reached in a voluntary recognition agreement. The fear is that the union and the
employer will cut a deal without the union considering the interests of the employees.
o This is partly counteracted by the fact that all collective agreements must be ratified under s. 44. So, if the voluntarily recognized union comes up
with a poor collective agreement, it can be turned down by the employees.
 Further, the protections available to a certified union do not exist for a voluntarily recognized union. Under s. 66, if the union is voluntarily recognized, then
upon the application of any employee within the first year of a collective agreement (or, if no collective agreement, within the first year of the voluntary
recognition) seek a declaration that the trade union was not entitled to represent him
o For certified unions, they cannot be attacked unitl at least 1 year.
 Finally, s. 51(4) does not allow a voluntarily recognized union to bargain for a closed shop provision unless it can show that it has the support of 55%
of the members or more.
Case and Facts Holding Reasoning and Ratio Notes and Exceptions

Oakwood Retirement Communities v. CAW,  Certification  CAW alleges that this agreement was
OLRB 2003 was given for the improper because the employer assisted in
 There was a voluntary recognition single branch the formation and administration of the
agreement of the employees’ association employees’ association, contrary to s. 53.
 Some employees contacted the CAW  The Board held that the employees
 Meanwhile, the association held a felt compelled to support the association out
ratification vote for a collective agreement under of fear for their jobs – so they struck down
s. 44 and won the recognition agreement.

Timeliness of Certification and Decertification Applications

Application for Certification

THIS WAS PAST EXAM QUESTION:
 Employees come to you and say we are not happy and we whant your help to unionize, your concern:

o What kind of work they do (privincial vs. federal)

o what is their current status in regard to unionization (do you have union now)

o If union, do they have CA

 o If CA, what stage (beginning or end)

 Be concerned with ss. 7 and 67 “open season”

o Have been there other attempts to organize this workforce in the last little time

o because if there was an organizing attempt that failed you may not be able to bring an application.

Bars to Certification
 Generally, a union may apply at any time to be certified as bargaining agent for a unit of employees who are not covered by collective bargaining.

(1) Prior Application Section 7(9) and (10)

 Further, a union that has failed in an attempt to establish majority support in a particular bargaining unit it is barred for a certain period (either by statute
or by board practice) from applying again for certification of the same unit

 There will be a ban of 1 year if the application is withdrawn after vote but before results are in. The board essentially wants to allow for a cooling off
period 10(3)

o However, if you make an application based on 40% membershit but then it is challenged under s. 8.1 and the board finds that some of your
membership cards are invalid (like some were managers or something) then the 1 year ban doesn’t apply, pursuant to s. 10(4)

 Mandatory ban of 1 year if the union has withdrawn an application more than once in a 6 month period

 If union had applied but then withdrawn, if withdraw occurs prior to representation vote than the ban could be a year of less

 S.11(2)(k) – gives the OLRB power to ban any applications for up to 1 year (for any situation where the union contravened the act and true wishes of the
employees were not reflected by the vote because of the unions actions)

(2) Employer Domination Union

o s. 15 prohibits the certification of an employer dominated union. If the board even finds out after the fact, there is a reconsideration power.

o Section 15 also prohibits the certification if the union discriminates on the basis of race creed colour etc.

(3) Build Up Principle

 Build-up principle is another bar to certification – K-Mart case – if employer is building up / expanding, it would be unfair to have a vote now - wait until
the expansion so the new employees have a say in the vote
  This an attractive argument because the vote would be unrepresentative of the actual whole, and depriving new employees from the chance to express
their views on the union.

(4) Timelines
 What stage is the relationship at Be concerned with s. 7 and s. 67 (these set out the open seasons)

 If the unit of employees are already represented by another union, there are tighter bars to a certification application by a rival union

 The policy of the Act is to provide unions some stability and protection for their right to represent workers (however, this is balanced against the workers
rights to their union of choice)

 Section 7 of the Act outlines the different timing limitations on applying for certification

o However, subsection 7(7) makes this section subject to subsections 10 (3) and 11.1 (4), section 67, subsections 128.1 (10), (15), (21), (22) and
(23) and subsection 160 (3).

Section Scenario Timing

7(1) Application for  No trade union has been certified  Trade union may apply for certification at any
Certification  The employees in the unit are not bound by a collective time
agreement
7(2) Application for  A trade union has been certified  Trade union may apply for certification only
Certification  No collective agreement has been executed after the expiry of one year from the date of
See also 67(1)  No order have been made that the union no longer represents the certification
unit  Terminate: s. 62(2), then s. 63

Section Scenario Timing

7(3) Application for  A trade union has been voluntarily recognized  Another trade union may apply for certification
Certification  The agreement is in writing and signed by the parties only after the expiration of one year from the
See also 67(1)  The parties have not entered into a collective agreement date that recognition was entered into
 The board has not made a declaration under s. 66
7(4) Application for  Collective agreement has been entered into for a term of not more  Trade union may apply for certification during
Certification than three years the last three months of the collective
agreement
 Terminate: s. 62(1)
7(5) Application for  Collective agreement has been entered into for a term of more  Trade union may apply between the last three
Certification than three years months of the third year, and during the three
month period immediately preceding the end
of each subsequent year
 Terminate: s. 62(1)
7(6) Application for  Collective agreement has been entered into for an indefinite term  Trade union may apply only during the last
Certification if either party fails to give the other notice of termination or of its three months of the initial term or after the
desire to bargain commencement of the last three months of its
renewal year
 Terminate: s. 62(1)

Raiding Situation
 Where a collective agreement is in place, a raiding application can only be brought during the open season

 The main purpose of s. 67 is to extend the protection for a newly certified union (these protections are not available in a mature bargaining relationship)

 S. 67(1) Application for certification or termination – where a trade union has not executed a collective agreement within one year and the
Minister has appointed a conciliation officer, no application for certification or for a declaration that a trade union no longer represents the
employees in the bargaining unit shall be made until

 30 days have elapsed after the Minister has released the report of the conciliation board

 30 days have elapsed after the Minister has given notice that he does not consider it advisable to appoint a conciliation board

 Six months have elapsed after the Minister has given notice of the report of the conciliation officer that the differences have been settled

 111. Powers and duties of the board – sets out the general powers and duties of the Board
 In a raiding situation, THE BOARD HAS BROAD DISCRETION IN STRUCTURING THE VOTE pursuant to it’s s. 111 powers
 S. 111(1) (h), (l), (m), and S. 111 (5), (6)
o Absent demonstration that the incumbent union is a shell union, the board draw up a ballot that has a choice between the two unions (and
occasionally, a no-union option)
o The raiding union still has to meet the 40% vote requirement
 There can be more than one raiding union at one time, which can lead to less than 50% support from three unions
 Employers are also put in a difficult decision because they cannot show support for either union, even though they may wish to support the incumbent
union due to the existing bargaining relationship
Termination of Bargaining Rights (Discretion)
 First Method: 62(1) & (2) Effect of certification – if a raiding application is successful, the rights of the incumbent union are terminated. The new union
has to start all over again, given notice to bargain under s. 16, and then the s. 86 freeze kicks in.
o Note Larry says that you should not do a two step process to get certification, you shouldn’t apply for decertification under s. 63 and
tehn when successful apply for your new certification. Instead you should just apply under s. 62 during the open season for
certification.
 Third Method: 64(1) Fraud – if a trade union obtains certification by fraud, the Board may at any time declare that the trade unions bargaining rights are
terminated (more likely in a card system)
o 64(3) Decertification obtained by fraud – if an applicant has obtained a declaration under s. 63 by fraud, the declaration may be rescinded at
any time and the bargaining rights restored 🡪 appears anyone can bring the application for fraud – union, employer, etc.
 Fraud is determined using the common law definition – it can be wilful or reckless. Darry v. Peak (Eng. 1899) There is vicarious
liability for people acting under the direction of the union, s. 107 (2)
 Second Method: Employees Make Application to Remove and then vote-- 63(1) Application for termination – allows the employees in the
bargaining unit to apply for a declaration that the union no longer represents the employees in the bargaining unit (only an employee can make an
applicationt to extinguish the bargaining rights, not the employer, and note the timeline provisions above)
o This is the most frequent mode of termination aside from successful raiding applications
o The section is very lengthy because it imposes similar limitations to those found in s. 7 with respect to applications for termination (i.e. cannot
apply for a year after certification – can be extended by s. 67; same limitations where there is a collective agreement in place)
o The Liberal government has amended s. 63 to no longer require s. 63 to be posted in a conspicuous place in the workplace
o 63(5) – If the Board determines that 40% or more of the employees in the bargaining unit do not wish to be represented by the trade union at the
time that the application was filed, the Board shall direct that a representation vote be taken among the employees in the bargaining unit 🡪 63(9) –
this must be done within 5 days. In essense you need signatures, and if the application is timely the board will conduct a vote, just like certificaton,
since 40 percent say they want to vote, then a DECERTIFICATION vote will take place, and if you get 50% plus one, then you will be
decertification.
 Method Six: 63(17) Declaration of termination of abandonment (a request of the union)– where the union informs the board that it does not desire to
represent the employees, the board has the authority to declare that the trade union has abandoned its bargaining rights. Nothing in the labour relations
act that says if a union abondons or fails to act like a union that you can remove their rights. Section 63(17) talks about abandonment but that is in the
sense that the union leaves. Case law suggests that in the alternative, whrere the union is just being shitty…?
 Method Four: 65(2) Termination for failure to bargain – if the union fails to give or respond to notice within 60 days, the Board may terminate the
union’s bargaining rights. This application can be made by employee or employer. Their rationale behind this provision is because you don’t want unions
sitting on their rights. George Adam’s makes the point that the board is very reluctant to make an order under s. 65.
 Method Five: 66(1) Termination of bargaining rights after voluntary recognition – during the first year of voluntary recognition, the board may declare
that the trade union was not entitled to represent the employees in the bargaining unit upon application from any employee
 Method Seven: In rare cases, perhaps termination could be achieved by asking the Board to use its reconsideration power under s. 114.
o The current position of the Board is to indicate that they will not permit s. 114(1) to be used to circumvent the timeliness provisions for
decertification. However, the reconsideration power was put there for a reason. IF there is material evidence that was not there at the date of the
hearing, or if there was an error of law, use of the reconsideration power would be appropriate.
  Method Eight: Sale or Breakup of a business that does not invoke the succession legislative provision
 Method Nine: Fraud

Reconsideration Power
 “when union no longer acting as a union”---ask board to reconsider order granting certification OR “ we are going to reconsider granting of certificate
based on inactivity”

o however there are cases that say that the board should dismiss an application brought forth on basis use reconsideration power to get rid of union
[do indirectly what u cannot do directly, by pass open season]

o Larry says argue against reconsideration “board will not generally reconsider unless new evidence”

 So if you have a group of employees who cannot or donot want to wait until the open seasons, then you just need them to sign a petition that says they
want to remove the union, then you go to board get a vote and bing bang boom!

o But if you have situation where you have 3 year CA, and only 3 or 4 months into CA, and you are not getting proper representation, if you make
application to the board, and it is served on the union, if the union doesn’t respond reply or appear, then there is a good chance the board will
remove the existing certifcation.

o The way they do it is not to make reference to s. 114 or s. 65(2) and rather to simply say the union has abandoned its responsibilities. In the
alternative, if the union responds, then the likelihood is that even if shitty excuse, then the board will let them continue.

Successor Employers, Contracting Out and Related Employees

Successor Employers
 Absent statutory provisions to the contrary, the “corporate veil” means that a change in the employer’s corporate identity puts an end to any collective
agreement negotiated pursuant to those bargaining rights
 As a result, all Canadian Labour relations statutes now have detailed provisions intended to give significant protection to bargaining rights where a
business has been sold to a new employer (i.e. s. 44 of the Canada Labour Code)
 Collective bragging rights are attached to the business and not the employer and therefore the whole important gist of successorship is that the Collective
bargaining rights flow with the sale of the business
 Section 68- there must be a sale of a business to invoke the sucession provision, but there have been a lot of debate on what constities a sale, and
what constites a business
o 69 (2) Successor employer – where an employer bound by a collective agreement sells the business, the successor employer is bound by the
collective agreement until the board orders otherwise (also applies to applications for certification or termination)
o 69(1) Sells – includes leases, transfer, and any other manner of disposition (very broad definition)
 Where the transaction is one found to be motivated by anti-union animus, the board is much more likely to find a “sale” (not a necessary
 condition)
 The onus of proof lies on the union to show that there has been a “sale” 🡪 s. 69(13)
 Board looks at the type of work that is being performed after the sale of the business
 Employers will often argue that it was not sale of a business it was just a sale of part of the business or just machines etc. the
board has said there has to be something more than the sale of corporate asssets for the sucessorship provisions to kick in, there
needs to be a sale of vital…
o 69(1) Business – includes a part or parts thereof
 A transfer of assets is not sufficient – it must be some kind of entity or operation
 The board has developed a number of tests:
 Whether the nature of the work performed subsequent to the transaction is the same as the nature of the work performed prior to
the transaction
 Whether the elements of the predecessor’s business which support employment have passed from the predecessor employee to
the successor employer
 Whether the transferee of purchaser has acquired from the transferor, a functional economic vehicle
 One of the most difficult things is determining “employer”: Board looks at who exercises, on a day-to-day basis, control over the work Wages,
discipline, hiring, firing, etc.
 Test for Successorship: (1) Was there a sale (2) Was it a sale of a business (combo of physical asses, human inititive, and capital assets, functional
economic units)

Case and Facts Holding Reasoning and Ratio Notes and Exceptions
Ajax v. National Automobile There was  The town took on part of the private company’s  This case
Workers, Ont. CA 1998 and SCC a sufficient business demonstrates the
2000 (pg. 359) nexus to  What was transferred was not merely the work formerly flexibility in the “sale of a
 Private city bus service was constitute a done by the predecessor employees, nor the employees business”
unionized sale themselves  Note: Town of Ajax
 City decided to offer the  It was the added value that came with the continuity, was held to be a “business”
service – there is no deal, just no stability, and experience of the workforce  This is section 69
renewal of the K  So while there was no purchase price involved it still fit (typo in book)
 The City bought some within he definition of sale, and even though it was a municipal
assets from P service it fell into the scope of “business’ basically this case just
 Example of flexibility of shows how broad the ambit is.
board in how far succesorship
provisions can reach

 One of the biggest problems in this area is that when you buy a business, the reason that you are buying the business is to enlarge or expand your own
 operation. This is the notion of intermingling of employees, see s. 69(6).
o The new employees and the employees of your own business might be represented by different unions.
o Sometimes, this issue can be rectified by the voluntary recognition clause.
o S. 69(6)(a) allows the Board to terminate a collective agreement in some cases.
o S. 69(6)(c) allows for a mixing of union and non-union people
o The big problem is when you have two different unions. The Board can use power to indicate that there will be one bargaining unit and one
collective agreement. But which agreement wins?
 Generally, the unit with the greater number of people will usually succeed.
 The Board will use s. 69(6)(d) to amend the certification of one of the unions.
 Note: The successorship provisions DO NOT apply to public to private sales, or vice versa.

Contracting Out
 Contracting out occurs where an employer retains a third party to provide particular services that would previously have been done by employees
working directly for the employer
o This is becoming a much more common phenomenon in the modern workplace and is causing unions to loose bargaining power and resources
 The issue here is the extent to which a contracting out situation can be found to fall within the successor employer provisions so that the employer
providing the contracted services is bound by the collective agreement
o If it is seen to be a legitimate contracting out situation, then the successorship provisions do not apply. For the successorship provisions to apply,
there must be a “sale” under the meaning of the Act.

Case and Facts Issue Reasoning and Ratio Notes and Exceptions
Canada Post Corp. v.  When is contracting out a sale of  The successor employer  This is very
CUPW (Nieman’s business? provisions should be interpreted unsatisfactory from the
Pharmacy), CLRB 1990 liberally; however, this was a perspective of the union
(pg. 363) legitimate contracting out  Ability to contract
 CP decided to situation out is an appropriate
contract out its services  The purpose of s.44 is not matter for collective
to convenience stores to protect jobs – but to protect bargaining
and pharmacies exisiting bargaining rights and  The purpose of the
 CUPW claimed preserve the terms of the legislation we have, is
successor employer collective agreement not to protect jobs/ work
 Not a sitatuon of  Successor only operate when it is to protect exiting
contracting out acquire coherent and severable bargaining rights (if it is
according to larry, sees it part of abusiness, capable fo contracting out of
as an example of the sale standing alone—if your part of a emloyment the SP do not
of a business even business or sub contract that the apply)
though board found no! successorhsip povisons do NOT
 apply
 Complex scenario as you
move from public sector
representation into company
fulfilling same role—but court
said this is case of
subcontracting
 To avoid the hardships you
should negotiate in your CA a
provision preventing contracting
out—WILSON SAYS THIS IS
FUCKING STUPID, would never
happen
Brandon Contracting  Simply because a member of your family
 Family business, starts up a similar business even with
son start up and go out assistance will not invoke succesroship
on his own, took
equipment from family  The legislatiove prupose behing the
business and bought it at sucessorship provison is to protect existing
favourable terms. Family bargaining rights.
business remained (was
unioned) Son’s business  In this case there was an attempt to use
not union. Union sought the successorhsip provison to expand
coverage of son’s bargaining rights, not to preserve them. This
employees was not a sitaiton where a person purchased a
business and was operating the business to the
detremint of the union, the provisons therefore
did not apply.
Bellbfeulle Electril 2001 Board used the successorship provisions, Sucessor provisons are not limited
Guy wanted to retire, tried because to do otherwise would deny the union the to the individuals who were
to sell company to a group BR they acquired earlier and taken away previsouly subject to the
of his employees, they said employee protections collective bargaining agreement
no, so he wound down the
business. A few months
later one of the employees
decided to start his own
business, bought a bunch
of equipment on favourable
terms from the guy who
owned the company and
was able to get ahold fo
the business list from the
guy and was allowed by
the previous owner to use
his name as a reference
when contacting the former
customers.
Metropolitan Parking  The inquiry is very FACT SPECIFIC 1. Is there a pre-existing
 The OLRB relationship between the
attempted to distinguish predecessor and successor – if
between contracting out so, more likely there will be a sale
and a sale of the business of the business (you can probably
rely on the related employer
provisions in this case)
2. Does the successor use its own
business organization – if so, it is
likely that bargaining rights will
pass (sale of assets not
determinative b/c the employer will
obviously have those assets up for
sale)
Trying to Get Around Successorship
 Sell Company Slowly: one of the ways attempted (in non devious matter) is to sell the company slowly and over time in bits and pieces and the question
is whether or not the successorship provisions will be able to come in and operate. (board says no)

 The question will be whether the transferee has acquired from the tranforor a functional economic vehicle
 If yes- then sucessorship provisins triggered
 If no- free from successorship provisions
 (2) Intermingling: Merging work forces.
 Section 69(9) and 69(4) this involves the situation where you sell the business in cirucstance where that business was unionized and had a
collective bargaining agreement. But note that for intermingling you can have non union people mixing with union people.
 Example: You own company 1 unionized by green and you own company 2 unionized by red, you then mix them.
 OR you own company 3 nonunionized and then you buy company 4 unionized and you combie the two into one company. In both of
these situations successorship comes into play because you are purchasing a unionized company.
 OR you have union shop then you buy a non union company and you merge the work forces, in most sitatons the union will gain CBR
in regard to the new employeesss as a result of the recogniziton clause in the CA. Union argues that they don’t represent individuals
they represent the work, that’s why they get to cover the newly merged previously ununionized employees.
 When there is a merger of groups the board can do a number of appraoches
(1) if the union now represents a small percentage of total group of employers the board can terminate the unions BR, by finding that the owner of business is no
longer bound by agreement 69(6)(a)
(2) board can also continue the union status if they find significant support 69(6)(c)
(3) board could decide that if union merged with union that they could maintain separate unions if they felt that was appropriate (the board prefers single all
employees sigle site unions, but you may have a sitaion, particualy if the union being observed will be doing very different work and
different unions then maybe you need separate ones) Board is concerned with Best Facilitate Industrial Peace
(4) If the board decised they want a single bargaining unit and you have two unionized groups the question becomes “which union will represent the employees”
the board has tended to represent the union represenation of the majority or larger union of the two groups in terms of membership. Under
69(6)(d) the board has the power to emend certificats to reflect the new reality.
(5) they can hold an election which will involve not just union A and union B they will include a non union option , so you create a bit of a civil war.

Related Employers (Exam along with Successorship)

 The problem: corporatiosn setting up businesses to avoid unionization / be in a position that in event of strike can move work quickly to non unionized site
/ parallel entities so you could shuffle employees around thus making it difficult to organize
 S. 1(4) Related employer – where businesses are more than one business AND associated or related, AND carried on under common control or
direction, the board may treat the businesses as constituting one employer. This is a discretionary Board power. (need these three things)
 Premise: prevent employer from escapting existing BR Rights. LRB wants to PRESERVE EXISTING bargaining rights
 The Board will look at: (1) Common ownership and financial control (2) Common management or separate management (3) The interrelationship /
transferability between operations (4) How the companies hold themselves out to the public (as one company, or as separate entities) (5) Functional
coherence and interdependence (intergration) 🡪 the greater this is, the more likely it will be found to be one company. (6) Accounting/ payroll invoice etc. if
 different could be two serpate, if same then not.
 Example: Two separate companies under “common control” factor = board will take discretion based on valid labour relations concerns may
treat as one
 In Ontario, the onus is on the employer to provide all relevant facts relating to such a determination. (S. 1(5)).
 Very often, the related employer application is a ploy by the union to expand where they would otherwise not be able to garner the support.

Case and Facts Issue Reasoning and Ratio Notes and Exceptions
White Spot Ltd. v. B.C. (LRB),   W argued that once successorship was determined, and  The board was
BCSC 1997 (pg. 365) Were Ws no anti-union animus was found, Board had no jurisdiction to find entitled to make a finding
 WS sold one of their and G it was a related employer. Union argued WS was still in essence of related employer despite
restaurants to G (G operated it related the employer. the finding of
under WS name). There was a employer  The businesses were related because the franchisor successorship
bargaining unit of 17 (different s? dominated the relationship and effective collective bargaining by  In Ontario, we are
locations) WS restaurants.  The the union required that the unit be entitled to bargain with the more likely to draw
 Union 🡪 G needs new CBA business whole bargaining rights along the
b/c this is agreement bt employer es were  Based on the degree of control exercise by the lines of legal ownership of
and union, and G was different related franchisor (WS) over the franchisee (economic relationship), the the entity.
employer than WS. Union though businesses were under common direction or control  If G had redecorated/
successorship gave them right to  Board based on Ontario debacle with Dominion Grocery changed menu LRB ≠
G’s employees parallel co. to prevent unionization related employer
 G wanted to stay in same
BU as WS
Charming Hostess case  Not  Union argues for related employer declaration to get the
 Union represented 4 people related new 24 employees, none of whom wanted a union. They said
who worked in hospitality room of employer that the employer was trying to set up a similar operation.
brewery. Employer wanted to  Board saw this as a ploy by the union to expand their
contract out food services in this reach onto employees that didn’t want a union.
room with 24 additional employees.
The Related Employer provison
was designed to help unions but
it is interesting that s. 1(4) allows
an application by any person,
trade uion etc. “Any person” can
include employer and then use to
defeat unionization
Hornco Plastics / Horn Plastics   Employer wants one large bargaining unit because
 HCOP was in Whitby, HP Were employer knows that there is little support for union at HP, and
was in Dunlop HCOP ultimately, this will defeat the union 🡪 HCOP found to be satellite
 Union proposes bargaining and HP facility of HP.
unit in HCOP related  Board uses its discretion under s. 1(4). In appropriate
 Employer makes related employer circumstances, a related employer declaration will be issued
employer application b/c wanted it s? for an employer.
to cover both.  Yes  Employees at both plants performed similar functions,
 Union wanted BU to cover shared common job postings, there was a common payroll, etc.
one b/c not enough support bt  Unions proposed BU = Viable, BUT b/c fragmented =
both, claimed serious labour relatins problems
 To approve employer proposed BU needed 🡪 one
employer (can use s. 1(4) test to find this)
 NOTE: This case was used to essentially defeat CB, even
though SP and RED are aimed at preserving CB rights, in this
case there were none, so they didn’t feel the need to promote
any.
 This case is good for exam, shows how the three tests
rolled into one!

Alternatives to the Wagner Act Model

 In its heyday from the 1940s to the 1960s, collective bargaining was premised on a paradigmatic form of employment in which workers filled specific,
stable jobs
o This stability enabled employees to claim a range of very important “job rights” based on their seniority and skills
 Today, changes in technology have radically altered the means of production, the nature of work and employment, and management strategies
o More “flexible production” “Just in time production”
o The ability to export jobs to other companies has forced unions to lower their demands and surrender job rights and economic benefits obtained
earlier
 All of these changes had helped to undermine plant-based bargaining units, and traditional job rights that have currency only within such units
 For collective bargaining to remain meaningful, it must somehow take place within larger structures that encompass not only a plant’s core
workforce but all of the workers who contribute to the productive process

Minority Occupation and Unionism

AUTHOR & PIECE DESCRIPTION

 Clyde Summers,  The author advocates allowing unions to play a role in representing pro-union minorities in particular workplaces (this is in
“Unions without Majority: direct contradiction to the legislation)
A Black Hole”  Currently, the trend is that only unionized workplaces adhere to employment standards because the union polices the
employer
 While non-majority unions cannot provide the same degree of protection and economic justice as a majority one, it can
provide workers with a measure of protection, either by collective action or legal representation
Dorothy Sue Cobble,  The author evokes the pre-Wagner phenomenon of occupationally organized unions as a possible way to facilitate the
“Making Post-Industrial organization of service sector workers
Unionism Possible” o To a certain extent, this is what is in the BC proposal
 Occupational unions, which were the dominant form of organization prior to the industrial era, emphasized
occupationally based rights, benefits, and identity rather than worksite based protections
Katherine V.W. Stone,  The author explores occupational unionism and citizen unionism as potential models for maintaining employee
“The New Psychological representation in contexts where workers can expect to move frequently from one employer to another
Contract”

Broader Based Bargaining

 Advantages- the bigger you are the more power you have!! Biggest problem here is that everything is goverened out of tornoto!!
 In addition to the above recommendations, there has been widespread advocacy of broad-based bargaining as a technique of achieving greater
stability in labour relations
 Broader based bargaining implies collective negotiations between a representative employer’s association or bargaining agency on one side, and a union
or association of unions on the other, covering employment relationships in a local, regional, or national labour market

ADVANTAGES DISADVANTAGES
 Removes wages as a competitive factor and focuses attention  May decrease labour mobility by eliminating wage competition
on factors such as efficiency, design, quality, etc.  The agency relationship between workers and representatives may
 Produces a more statesmanlike approach on both sides prove unsatisfactory for a number of reasons
 The potential costs of industry wide strikes are so great that the  Voluntary coalitions are difficult to sustain
public will not tolerate strikes  Individuals will only participate in measure designed to further
 Helps to bring order to an industry by enforcing compliance with collective goals if it also confers an advantage on them individually
industry wide standards, thereby avoiding the necessity for legal  Positive externalities – free rider problem
and economic sanctions by the union  The public interest will not be weighed when a private choice is
 May eliminate the problem of contracting out work to non-union made between individual and joint bargaining
firms
Broader Based Bargaining in Quebec

AUTHOR & PIECE DESCRIPTION

 Quebec employs the decree system for collective bargaining, under which there is provision for the Minister to make an
Jean-Guy Bergeron & order to extend the effect of a particular collective agreement over the entire industry
Dianne Veilleux, “The o The point is to eliminate the competition in terms of labour and improve working conditions in smaller workplaces where
Quebec Collective collective bargaining is unlikely to take hold
Agreement Decrees Act: o The major problem with this model is that globalization has eroded away its effectiveness (only four Ministerial decrees
A Unique Model of left)
Collective Bargaining  The Quebec system has been revamped significantly and has lost much of its former power
 The decree system is now viewed as making firms non-competitive (the opposite effect the legislation was intended to
bring)

A Proposal for Broader-Based Bargaining in British Columbia

 In 1992, a committee of special advisors to BC’s Minister of Labour was charged with reviewing the province’s labour laws and proposing reforms that
would promote harmonious labour-management relations

AUTHOR & PIECE DESCRIPTION

 The committee proposed a novel form of sectoral bargaining as a partial solution to the problems faced by workers in
John Baigent, Vince industries that have proven resistant to collective bargaining
Ready, & Tom Roper,  The terms of the proposal sought to avoid a common criticism of sectoral bargaining: that it forces groups of
Recommendations for employees into collective bargaining without their consent
Labour Law Reform o This is accomplished by ensuring that there is a majority of support in each workplace within the multi-employer unit
(and additiaonl units could be added as support was established)
 The proposal has not been implemented
 Again, the major criticism with these proposals is that you are making firms non-competitive in the international
marketplace

An Employee Council in Every Workplace?

AUTHOR & PIECE DESCRIPTION

 Roy Adams,  Argues that a major problem with the Wagner Act model lies in the fact that it does not provide workplace representation
“Industrial Relations under for all employees, but only for units that vote for unionization
Liberal Democracy”  Looks to the German system as a model which provides for broader-based collective bargaining at the regional level and
which also mandates an employee works council in every workplace, with employees
Chapter 7 – Negotiating a Collective Agreement
Introduction
 Duty to Bargain in Good Faith = Continues Through to even Labour Dispute
 Exclusive Bargainnin Agent ≠ baragin with another union
 Collective bargaining differs from ordinary contractual negotiations in a number of ways:
o The employer is often an unwilling party to the negotiations
o Outcomes are open-ended in the sense that collective agreements are almost infinitely variable
o The parties cannot simply terminate their relationship and seek other buyers or sellers of labour
o The pressure each can apply to the other (strikes and lockouts) have few counterparts in other bargaining contexts
 All of these peculiarities of collective bargaining law raise a fundamental issue – to what extent can and should the law seek to regulate bargaining
behaviour?
 The traditional approach to collective bargaining is known as the positional bargaining. (critizied for “hardening” bargaining position and not good for long
term relationships—a push for a more interest based style of bargainning

Statutory Timetable
 (1) Collective bargaining subjects negotiations to a fairly detailed statutory timetable, which is set in motion by the certification of the union as the
exclusive bargaining agent
o S. 16. Notice of desire to bargain – following certification, the union shall (is entitled to) give the employer notice to bargain (Recall that under s.
65, if this is not done within 60 days the Board may terminate the union’s bargaining rights)
o S. 59. Notice of desire to bargain for new collective agreement – either party to a CA can give notice to bargain within 90 days before the
agreement expires
 (2) The service of notice to bargain triggers the duty to bargain in good faith
o S. 17. Obligation to bargain – the parties shall meet within 15 days and shall bargain in good faith (subjective requirement) AND make every
reasonable effort to conclude a collective agreement (objective requirement)
o The duty applies until a CA is reached or the unions bargaining rights are terminated (the duty does not require that they succeed in
concluding an agreement)
o Once an agreement is reached, the duty ceases until the next round of bargaining (contrary to the U.S.)
o The only exception is the technological change provisions under the Canada Labour Code which allow for application to reopen the
duty to bargain with respect to the technological change
o Once a work stoppage becomes legal, the duty to bargain in good faith remains in effect; however, the content
changes significantly – a party is entitled to break off negotiations on the basis that there is no current prospect of
progress

o In most cases, a collective agreement will eventually be reached at which point they duty to bargain in good faith is
suspended

o During the life of the collective agreement, parties are entitled to make changes to the collective agreement, but only
 mutual agreement – neither party can compel the other to even discuss the possibility of changes
o Board can award damages if they do not bargain in good faith but usually just tell them to go back and bargain in god faith.
o Example of bad faith bargaining is failing to meet with the representatives from the union, threaten closure of business, board will look
at past history of bad faith
o Prior to engaging in a legal strike or lockout, the legislation requires them to go through some form of mediation process
o While the state will intervene to try and help the parties conclude an agreement, it generally will not impose an agreement, except for two
important exceptions:
o (a) First contract arbitration – allows the state to impose the terms of the first collective agreement after certification 🡪 s. 43
(DISCRETIONARY)
o It is possible for the board to intervene and impose a CA (first K) this will not violate s. 17.

o This has the same importance as s. 11 and is identical in its intent to serve as a warning to employers

o (b) Other exceptions – including ad hoc back to work legislation and specific statutes requiring compulsory interest arbitration in certain
sectors

 (3) S. 18. Appointment of conciliation officer – once notice to bargain has been given, upon the request of either party, the Minister shall appoint a
conciliation officer

o It is important to exercise this right because: 79(2) No agreement – neither party can strike/lockout until the Minister has appointed a conciliation
officer

o However: 19(1) Appointment of mediator – prior to appointing a conciliation officer, the Minister may appoint a mediator selected jointly by the
parties

o In this case, the role of the conciliation officer is terminated

o S. 20(1) Duties and report of conciliation officer – the officer shall confer with the parties in an attempt to affect an agreement and shall within
14 days report the results to the Minister

o This time period can be extended indefinitely either by the parties or the Minister if the conciliation officer advises that a collective
agreement may be made within a reasonable time 🡪 s. 20(2)

 (4) If the conciliation officer’s report indicates that there is no collective agreement, the Minister must exercise his discretion under s. 21

o S. 21. Conciliation board, appointment of members – if the conciliation officer is unable to effect a collective agreement, the Minister may
either: (a) appoint a conciliation board in accordance with the proscribed procedure (these never happen); or (b) decline to appoint a conciliation
 board – no board report

 (5) If the negotiations are still not successful, the parties will be in a position to engage in a legal strike or lockout in accordance with subs. 79(2)

o S. 79(2) No agreement – the parties can engage in a strike/lockout after: (a) 7 days have elapsed following the release of the report of the
conciliation board or mediator; or (b) 14 days have elapsed after the release of the no board report 🡪 cooling off period

o SO, if the Minister mails the no board report by mail on the 1st of the month, legal strike position at 12:00am on the 17th

o S. 122 Time of release of documents – documents will be deemed to be released:

o If sent by mail and addressed to the person, on the second day after the day which it was so mailed

o If delivered to a person, on the day next after the day on which it was delivered

The Bargaining Freeze

 Complementary to the statutory duty to bargain are provisions that prohibit changes in terms and conditions of employment after notice to bargain has
been given – the bargaining freeze
#86. (1) Where notice has been given under section 16 or section 59 and no collective agreement is in operation, no employer shall, except with the
consent of the trade union, alter the rates of wages or any other term or condition of employment or any right, privilege or duty, of the employer,
the trade union or the employees, and no trade union shall, except with the consent of the employer, alter any term or condition of employment or
any right, privilege or duty of the employer, the trade union or the employees,
         (a)    until the Minister has appointed a conciliation officer or a mediator under this Act, and,
                        (i)    seven days have elapsed after the Minister has released to the parties the report of a conciliation board or mediator, or
                       (ii)    14 days have elapsed after the Minister has released to the parties a notice that he or she does not consider it advisable to appoint a
conciliation board,
as the case may be; or
         (b)    until the right of the trade union to represent the employees has been terminated,
whichever occurs first.

 In Ontario, the freeze period begins with the time notice to bargain is given by a union and ends when the parties are in a legal strike or lockout
position, whether or not there is actually a strike or a lockout, is irrelevant, it is just based on whether they are in the “position”
o This means that as soon as there is a legal strike / lockout position, the employer can make unilateral changes to the working conditions without
instituting a lockout.
 Note: S. 79(3) = no mandatory strike, BUT, you must do coniclliation process, and partake in strike vote
The Duty to Bargain in Good Faith

Purposes of the Duty to Bargain in Good Faith

AUTHOR & PIECE DESCRIPTION

 There are four purposes for the duty to bargain in good faith
o To reduce the number of strikes for union recognition (this is the one that everyone agrees on)
Archibald Cox, “The Duty o To create aggregations of economic power on the side of employees
to Bargain in Good Faith” o To implement the basic philosophy of the Act by imposing the duty to engage in collective – as distinguished from
individual – bargaining
o To create a rational process of persuasion – collective bargaining enables employers and employees to dig behind their
prejudices and exchange their views with the result that agreement is reached on many points while on others, it is discovered
that the area of disagreement is so narrow that compromise is cheaper than battle

Content of the Duty to Bargain

 S. 17. Obligation to bargain – the parties shall meet within 15 days from the giving of notice …and shall bargain in good faith AND make every
reasonable effort to conclude a collective agreement
o Royal Oak Mines v. Canada (LRB), SCC 1996 (pg. 392): the requirement had both: A subjective element (good faith); and An objective element
(reasonable efforts)
o It has also been suggested that the requirement has both
o A procedural element – what the employer can or cannot do during the freeze (not controversial); and
o A substantive element – to what extent can the Board look at the substance of the proposal and infer a violation of s. 17 (more
controversial – however, there have been some significant decisions in which the board increasingly looks to the substance of the
agreement to infer a particular motive or intention)
 Wilson suggests that there is nothing wrong with making an offer to the union that is unacceptable – as long it is done in good faith.
There is a difference between engaging in hard bargaining and surface bargaining.

Case and Facts Issue Reasoning and Ratio Notes and Exceptions
UERMWA v. DeVilbiss, OLRB 1976 Duty to bargain in good faith has at
(pg. 396) least two principle functions:
 Talked about s. 17 duty to 1. Reinforces the Relationship--
bargain in good faith Reinforces the obligation on the
employer to recognize the union
2. Obligation to make every
reaosable effort-- Fosters rationale,
informed discussion, thereby
minimizing the potential for unnecessary
industrial conflict
Graphic Arts Int’l Union v.  Breach of the duty to bargain in  Section 17 was intended to  Conduct that inhibits
Graphic Center, OLRB 1976 (pg. good faith provide a rational discussion the decision making
397) between the parties in the hopes of capacity of the other
 Because of a grievance filed avoiding a strike/lockout breaches the DBGF
by the union, the employer tabled  The tabling of additional  Illustrates the kidn of
16 new proposals late in demands after a dispute has problems when you have
negotiations been defined, in the absence of inexperienced negotiators.
 Union claimed breach of evidence which would justify
DBGF such a course, must be
construed as a violation of
DBGF
 The isses that were going to
be re opened were effectively
already resolved, the board said
when talking about CB it is not
prohibited by the legislation, but
when you come right at the end
whith a whole new package of
demands that really looks like an
attempt to skuddle the
negotiations.
CAIMAW v. Noranda Metal  Breach of the duty to bargain in  An employer who  The Board found that
Industries good faith deliberately withholds this also constituted an
 N sent a letter to the information needed to unfair labour practice
employees about C intelligently appraise a proposal  Had N not put costs
 The employer refused to is not making “every reasonable in issue by arguing
disclose the price at which it effort” to conclude a collective inability to pay for the
could purchase fringe benefits agreement – the employer has an benefits, disclosure may
from third parties during obligation to disclose information not have been required
negotiations that is relevant to the issues in
dispute, absent a reasonable
justification
 The employer cannot
communicate directly with
employees that it has not first
discussed with the union –
Breach of duty/ULP

Canada = system of “free” collective bargaining b/c no legislated list of things needed to be negoitiated, but in essence s. 17 and DBGF kind of forces
you to discuss things “unfreely”

Substantive and Procedural Obligations Imposed by the Duty to Bargain

 The parties to collective bargaining have considerable freedom to exercise their own judgment about what matters to raise at the bargaining table
and about which of those matters are worth pressing to the point of a strike or lockout, as well as the tactics they will use in the bargaining process
 There are two exceptions:
o (1) At one extreme, a party who proposes a term that cannot legally be included in a CA is not making “every reasonable effort” to conclude a
collective agreement
o (2) There are other types of proposals that affect the parameters of the CB relationship, but which neither side can press to the point of a
strike/lockout
 There are a number of clauses designed to guarantee the longevity of the union known as union security clauses:
o Rand formula clause – provision requiring the employer to deduct union dues from all members of the bargaining unit and remit to the union,
whether the employee is a member of the union or not. This is a mandatory provision if the union requests it (see s. 47)
o Union shop clause – every employee within must become a member of the union within a specific date from hiring. Permissive – see s. 51.
o Closed shop clause – employer will only hire employees who are members of the trade union. Permissive – see s. 51.
o Hiring hall clause – when the employer has a vacancy, it must make a request to the union “hiring hall” which then provides the names of those
up for the position
 Case and Facts Issue Reasoning and Ratio Notes and Exceptions
USWA v. Radio Shack, OLRB  An  The board found a breach based on the substance of the  It is a strange
1980 (pg. 400) example of proposal holding that relying on
 R would only concede surface  There is a distinction between hard bargaining (permitted) and a statutory clause is a
to the statutory minimum of bargaining surface bargaining (violation of s. 17) – intention of the employer violation of the duty to
mandatory dues with a – a breach  Radio Shack ordered to make substantive proposals that bargain – CONTEXT
check-off clause of the duty were acceptable to the union including a Rand formula SPECIFIC
 R had history of to bargain  Frim / Commited to positin ≠ breach of DBGF BUT if your motive  RS had also
anti-union activity is anti union then = breach of DBGF sent out memo to
 Union requested a  The Company’s History + Their Approach = Surface employees which
Rand Formula clause Bargaining essentially undermined
 BUT—if it was just their proposal (the approach) that wouldn’t the union.
have been enough to find bad faith!
Union v. Canada Trustco   The employer’s behaviour was an example of hard but  Here, the
Mortgage Company, OLRB Example of legitimate bargaining rather than surface bargaining (they weren’t company had a
1984 (pg. 407) hard trying to avoid CA, so not bad faith) superior position and
 Union claimed that C’s bargaining  The OLRA did not require that the offer be an improvement from therefore engaged in
offering only minor – no the status quo hard bargaining –
improvements over the terms breach  The DBGF was not designed to address an imbalance in there is nothing wrong
of the collective agreement bargaining power, if one party has economic strength to dictate with this.
was bad faith terms they are entitled to this, so long as they TRY to reach a CA,  Note: there is a
 Employer liked current there is no requirement to actually REACH a CA. HIGH THRESHOLD to
position so they just wanted to  Board “just because we don’t think they are bargainning the way find bad faith
maintain the status quo—the they should, or employer is being unfair, that DOES NOT mean they are
union said this was bad faith necessarily bargainning in bad faith”
bargining.
Royal Oak Mines v. Canada   Where a party refuses to include in its proposals terms that  The concept of
(LRB), SCC 1996 (pg. 414) There was have been widely accepted in other agreements throughout the “reasonable efforts”
 Labour dispute, guy pus a breach of particular industry, it may be appropriate for the board to find a is objective and must
bomb in mine, dispute sorted the duty to breach of that party’s duty to make every reasonable effort to reach be assessed based on
out, mine shuts down, finds bargain a collective agreement (used patently unreasonable test, which is industry standards
out no pension/ expensive  This the old test)  While the
clean up finding is  The board ordered the employer to put back on the table the legislation did not
 Employer refused to driven by tentative agreement that had been put forth earlier with the exception of require the clause in
negotiate until the issue of facts of 4 terms on which the employer had changed its position 🡪 Wilson: this issue, it was fairly
reinstatement and discipline of this case, is ridiculous, this is an example of the SCC being all nuts-o. standard in the
several employees had been probably industry
resolved – would not include cant site
grievance arbitration this case
for much.

Case and Facts Issue Reasoning and Ratio

NAATGWUC v. Buhler  A Refers to an alberta decsion that sets out factors. The duty to bargain in good faith has many
Versatile Inc., MLRB 2001 (pg. breach of aspects, including an obligation:
416) even one 1. Employer to recognize the trade union as bargaining agent
 CAW-Canada alleged aspect will 2. The parties to meet
that B.V.I. had failed to result in a 3. The parties to bargain
bargain in good faith and breach of 4. The parties to act with the intent of concluding, revising, or renewing a collective agreement
failed to make every the duty to 5. The parties to make every reasonable effort to enter into a collective agreement
reasonable effort to conclude bargain 6. The parties to engage in full, rational, informed discussion about the issues
a collective agreement with 7. The employer to disclose decisions that have been made affecting the bargaining unit
the Applicant union. 8. A party upon request, to provide the other party with information relevant to the issues involved in
 The Board provided a bargaining
list of the aspects of the duty This case involved the highest award of damages to date
to bargain in good faith They looked at the totality of the actions and found yes this was surface bargainning it was bad
 BVI offered less and faith bargainning!
less at each negotiation, and
said ‘my first offer is always my
last offer.’ BVI says ‘no’ to all
CAW proposals without
considering them.
Sunny Crest Nusrsing homes  The Ontario board on the principles enuciated in Westinghouse found aviolation of the duty to
Limited 1982 CanLRBR Famous bargain in circumstances where it was clear that the decision to contract out a substantial
Case portion fo the bargaining units work had been taken before or during negotiatons with the
union.

AUTHOR DESCRIPTION
& PIECE
 It is wrong to think that one can maximize one’s self interest by not signing a collective agreement
Langille &  If the content of the agreement is totally up for grabs, then there is no rational disincentive to signing
Macklem,  There is no difference between refusing to sign any collective agreement, and signing an agreement, the terms of which can be completely
“Beyond dictated, and which represent no change from the status quo
Belief:  Larry sees that the DGBF can actually surpress unions so you get in the front door what you cant thorugh back
Labour  Bad faith bargain allegations go in the trash at the board, larry says the allegations are usually done to simly rally the troops and
Law’s Duty camadaerie
to Bargain”

Disclosure of Decisions or Plans Substantially Affecting the Bargaining Unit

o None disclosure of non finalized plans (contracting out etc.) is incocnsistent with the DBGF it gives the employer an incentive to reamin silent. SO
in terms of your planning as you move towards negotiations DO NOT leave a paper trail that indicated future plans, also don’t want to leave any
indication about plans that are finalized.

Case and Facts Issue Reasoning and Ratio Notes and Exceptions
Westinghouse Canada Ltd. OLRB 1980 (pg. 420)  No  Finalized plans  See Sunnycrest Nursing Home,
 During negotiations, company considering plan to breach of to relocate must be OLRB 1982 – Board found breach of DBGF
move the duty to disclosed during when it was clear that a decision to contract
 This was characterized as a “unevaluated likelihood” bargain – negoitations out a lot of the work had been made before
 The union never asked about the possibility of move unfair  Non Finalized the agreement was concluded.
– and after the agreement was finalized, the company labour plans to relocate do  How “final” must the decision be?
announced the move practice not need to be
 Union alleges breach of DBGF. disclosed
 AUTHOR & PIECE DESCRIPTION
Brian Langille  The current system is geared toward non-disclosure – the incentive is for the employer to remain silent, enter into an
“Equal Partnership in agreement with the union, and then reveal the plan or act upon it
Canadian Labour Law”  Non-disclosure of plans is simply inconsistent with the duty to bargain in good faith – if something is being seriously
considered, it should be disclosed.
 Criticizes the board’s decision in Westinghouse for finding that the duty to respond honestly to union inquiries provided
adequate protection – feels this approach is misguided in two respects:
o Presupposes that the union should have no say in decision making process
o It fails to realize that rather than distorting the bargaining process, disclosing such information rationalizes it

Case and Facts Holding Reasoning and Ratio Notes and

Exceptions
IWOA v. Consolidated Bathurst,  The board refused to extend the duty to  Obiter: the de facto decision
OLRB 1983 (pg. 423) LEADING bargain throughout the life of the collective doctrine should be expanded to
CASE agreement (as is the case in the U.S.) include highly probable decisions or
 The union asked for  The court upheld the rule in Westinghouse; effective recommendations when
provision for plant shutdown in the however, the court established a rebuttable fundamental issues are at stake
collective agreement presumption where the decision to close is
 C did not reveal plans and announced following the signing of a collective
strongly resisted changes to the agreement
shut-down provisions  In this case, the Board had made the
 C announced shut down decision to close the Hamilton prior to the signing
shortly after bargaining agreement of the collective agreement
signed  An employer is under no obligation to
 WITHHELD THEIR provide non-finalized information unless the union
FUTURE PLANS requests it.
 Breach of DBGF  Case went beyone Westinghouse, added
in third requirement: decisions to relocate
that are being seriously considered must be
disclosed pursuant to s. 17 requirement to
bargain in good faith also non disclosure
would be violation of s. 70 (unfair labour
practice)
 In essence union wanted them to extend
the DBGF to cover entire life of CA (if plant
decided 2 years in to move plan, then would be
forced to negotiate this decision- court rejcted this
approach)

Final Offer Selection

41. (1) Before or after the commencement of a strike or lock-out, the employer of the employees in the affected bargaining unit may request that a vote of
the employees be taken as to the acceptance or rejection of the offer of the employer last received by the trade union in respect of all matters
remaining in dispute between the parties and the Minister shall, and in the construction industry the Minister may, on the terms that he or she
considers necessary direct that a vote of the employees to accept or reject the offer be held and thereafter no further such request shall be made.

      #(2) A request for the taking of a vote, or the holding of a vote, under subsection (1) does not abridge or extend any time limits or periods provided for in
this Act.
Remedies for Violating the Duty to Bargain
 104(1) Offences – everyone that contravenes any provision of this Act is guilty of an offence (see section for penalties)
o 109(1) Consent – no prosecution for an offence under this Act shall be instituted except with the consent in writing of the board

Case and Facts Holding Reasoning and Ratio Notes and Exceptions
USOA v. Radio Shack, OLRB 1980  The court imposed a number of  The remedy should not  The court said that it
(pp. 400, 428) remedies on the employer be seen as a penalty – would resort to orders to
 In addition to dealing with monetary relief should only cease and desist; bargain
the content of the duty to bargain, be awarded as in good faith; publish
the Ontario board outlined its compensation to an injured retractions of false or
position on remedies for breach of union, and not as punitive prejudicial statements; pay
the duty to bargain in good faith damages (prosecution = fine; injured party’s negotiating
civil action = damages) costs
 The remedy cannot
simply impose a collective
agreement on the parties by
way of a remedy, as this
would exceed its statutory
mandate and deviate too far
from the principle of free
bargaining
IWOA v. Consolidated Bathurst,  The court imposed a remedy  The court declined to  Board tried to identify
OLRB 1983 order the plant reopened on what terms could have
(pg. 423) practicality gds. been negotiated had union
 After finding a breach of the  Instead, the board known of plans to close
duty to bargain for non-disclosure, ordered the employer to plant
the court considered the appropriate indemnify the union for the
remedy damages it suffered from the
loss of opportunity to
negotiate on the matter of
the plant’s closing
Royal Oak Mines v. Canada  The decision of the Board was not May indicate some opening of  Cory is failing to see
(LRB), SCC 1996 (pg. 414) patently unreason-able. the door, to a willingness of in this case that a
 Cory J. set out the test for the courts to become involved conclusion of CA is not part
determining whether a labour in fashioning CBA. This may of the legislation and is
relations board has exceeded its be true in extreme cases, but actually not even a goal of
jurisdiction in imposing a particular not here. This is such a the legislation.
remedy unique case. shows the  shows you how
 Board ordered the Co. to ability of LRB to be creative. exteme a circumstance
reoffer the last offer they had made The court should only has to be before LRB will
to the union (there had been four interfere with a remedy where get involved in
changes in position by the employer it is patently unreasonable fashioning a CA
since that offer) the board said (this is different now) – four  1st contract
baragin for 30 days, if cant reach possible situations: arbitration is also very
agreement then will be subject to 1. where the remedy is punitive rare (but different than
bidning arbitration. (this is rare) in nature (would strike it what happened in this
down) case)
2. where the remedy granted
infringes the Charter (would
strike it down)
3. where there is no rational
connection between the
breach, its consequences,
and the remedy imposed
(National Bank) (would strike
it down)
4. Where the remedy
contradicts the objects and
purposes of the Code
(voluntary, free collective
bargaining) (would strike it
down)
KEY: company did not want to
continue to bargain to get a CA
they wanted to continue
bargaining until the union gave
up and faded away. That is
important for this decision,
 because the board knew this.
NAATGWUC v. Buhler Versatile,  The Board imposed damages.  The remedy for a 4  This was by far the
MLRB 2001 (pg. 434) month strike caused by the largest damage award for
Viewed this as an emploers employer was that the the breach of the DBGF in
motivated strike. You had 250 employer compensate all Canada.
emlyees in the BU, the damage members of the bargaining
award several million dollars, this unit for all the lost wages and
sent a significant message out to benefits had the strike not
other lawyers. occurred.
 This can give you
another example of the
powers of the board

Fiber Plastics Glass  She breached DBGF, she got a no  Closest we have ever
Owner/Operator illegally locked body to go in and bargain for her, bribed gotten to forcing someone to
out employees and transferred people to leave union reopen
work out just before strike  Board ordered a cease and assist  Good case to see what
deadline order, and ordered parties to start board will and will not do.
bargaining againg and to compensate for
lost wages, for negotiating costs, and forced
her to bring contracted work back, put
notices on bulletin board
 Note they DID NOT impose a
collective agreement

Binding Arbitrartion
 Under s. 40 you can agree to binding arbitration (the parties can agree) and you can do that for a 2nd, 3rd, 4th contract.

 When you see the phrase INTEREST ARBITARION this is the situation where 3 rd party is determing the terms and conditions of your CA (eg. Essential
services)

 This is different than GRIEVENCE ARBITRATION which is the situation where you have 3 rd party resolve disputes out of the terms and conditions of the
current CA/ CB relationship.
 Bad faith bargaining ≠ compelled arbitration

 First Contract Arbitration is not predicated on finding of unfair bargaining practice b/c not a remedy

New Approaches to Collective Bargaining

 Jurisprudence on the duty to bargain strives to protect and reinforce the union’s status as exclusive bargaining agent – the form of bargaining that
traditionally prevails is often called positional or adversarial bargaining
 In recent years, considerable interest have developed in a different approach, often called interest-based or mutual gains bargaining
 These approaches tend to work well in mature bargaining relationships

AUTHOR & PIECE DESCRIPTION

 Outlines how mutual gains or interest based bargaining might work, and how it differs from the traditional model
Richard Chaykowski &  Sets out the main tenets of the of the interest based bargaining regime:
Michel Grant, “From o Problem solving focused on issues rather than positions
Traditional to Mutual o It separates the issues from the people
Gains Bargaining: The o Avoids commitment to a hard position
Canadian Experience Employs objective criteria as opposed to irrational subjectivity
 Gives a concrete example of how mutual gains bargaining has worked in a Canadian oil refinery
Charles Heckscher,  While the employees were highly skilled at negotiating, it was the context of the bargaining process that made it
“Searching for Mutual possible:
Gains in Labour o Virtual total sharing of information
Relations” o Extensive training
o A flexible workforce
Support from the parent institutions
Ira B. Lobel,  Sounds a note of caution, arguing that many of the assumptions on which mutual gains bargaining rests do not
“Labour-Management hold in most unionized workplaces, and that labour relations at these workplaces will inevitably continue to be
Cooperation: A Critical governed by power based position bargaining
View” o Only works where both parties are cooperative to using this approach
Only works in stable economic environment (i.e. in demand industries)
University Strike  Section 40 will not operate to bind arbitration intervention by the government which passes legislation impelling binding
arbitration .
 1 1/3% different between the york demands can cant be resolived. But this ≠ bad faith bargainning
First Contract Arbitration (not until 1986) NOT A REMEDY!
 First K Arbitration is massive intrusion on free collective bargaining (limited to first contract but if there is a reorganizing of BU, would be different union so
same employer could be subject to it twice)
 Unions want automatic access to first contract arbitration. Employers want breach of legislation as prerequisite to first contrat arbitration
 Most Can jurisdictions make some provision for interest arbitration (in Ontario conducted by arbitrator in other provicnes conducted by board) if
the parties do not reach a settlement in negotiations for the first collective agreement after certification
 S. 43(1) First agreement arbitration – where the parties are not able to affect a first collective agreement, and the Minister has released his report, either
party may apply to the Board to direct the settlement of a first collective agreement by arbitration
o This resulted from the realization that after Digby and Radio Shack, Boards would not have the remedial power to impose a collective agreement
stemming from unfair labour practices
o Therefore, the purpose of first contract arbitration is to provide authority to the Board in new bargaining relationships to order the imposition of
a collective agreement by a neutral third party
 There are two steps in the first contract arbitration process:
o S. 43(2) Duty of board – the Board shall direct the settlement where it appears that the collective bargaining process has been unsuccessful –
number of criteria:
(a) Conduct of the employer which demonstrates a refusal to recognize the union
(b) A part adopting an uncompromising bargaining position without reasonable justification (see Formula Plastics – there was no s. 17 breach,
but a breach of this subs.; see also Napean Roof Truss)
(c) A party failing to make reasonable or expeditious efforts to conclude a collective agreement
(d) Any other reason the board considers relevant
o S. 43(3) Choice of arbitrator – where an order is given under (2), the first collective agreement shall be settled by a board of arbitration unless,
within seven days the parties notify that board that they wish the board to arbitrate
 43(4) Arbitration by board – where the parties agree that the board arbitrate the agreement
 43(6) Private arbitration – where the parties do not agree that the board arbitrate the agreement, each party shall inform the other of the
name of their appointee within 10 days, and those appointees shall appoint the third party chair within 5 days for the board of arbitration.
 43(8) Same – board of arbitration appointed under this section shall determine their own procedure but shall give full opportunity
to the parties to present evidence and make submissions, and s. 116 applies
 43(11) Same – first hearing shall take place within 21 days of appointment of the chair
 43(12) Same – all matters in dispute shall be determined within 45 days of commencement of hearing
o 43(14) Effect of direction on strike or lockout – the parties cannot begin a strike or lockout, and if one is already in place, (strike or lockout)
must be terminated (when arbitration begins) in accordance with the prescribed terms
o 43(16) Working conditions not to be altered – imposes a freeze on conditions of employment when the board orders that the first collective
agreement be settled under s. 43(2) 🡪 the conditions are to be restored or frozen to the same conditions that existed when the notice to bargain
under s. 16 was given.
o 43(19) Effect of settlement – (AGREEENT RUNS FOR TWO YEARS) a first collective agreement is effective for two years and it may provide
that any of the terms (except term of operation) is retroactive as far back as the date the notice to bargain was issued under s. 16
Board Regarding First Contract Arbitration
o “…should be attractive to union so they wont want to decertify, the ultimate CA should not reflect the bargainnign strength of the parties, you don’t want to try
and guess what would have happned if the two parties would have been able to conclude a CA”

o Must be fair and practical for both sides, you are able to take in the financial circumstances of the groups.

o First Contrct Arbitration is rarely used even in jurisdictions where it is automatic 🡪 basically its function is just detterence from bad faith bargaining

o You only have acces to first contract arbitration once you have engaged in good faith bargaining and you have reached an impass

Decertification and Raiding Applications

 Until 2000, where the LRB faced with both an application for first K arbitration and raiding/decertification application, the board had discretion as to which
to deal with first
 However, in 2000, the OLRA was amended:
o 43(23.1) Application of 23.2 – sub (23.2) applies if a decertification or displacement application is filed prior to a final decision on first K arbitration
or vice versa
o 43(23.2) Procedure in dealing with multiple applications - the board shall deal with the decertification or displacement application first
o 43(23.3) When application under subs. (1) to be dismissed – if the board grants the decertification or displacement application
o 43(23.4) When application under subs. (1) proceeds – the board dismisses the decertification or displacement application
o HOWEVER, 43(24) Same – if the decertification or displacement application is brought after the board has given a direction under subs. (2), it is of
no force or effect

Criteria for Imposing Conditions of First Collective Agreement

Case and Facts Holding Reasoning and Ratio Notes and Exceptions
Yarrow Lodge v. Hospital  The  A first collective agreement should not contain  The employer can make
Employee Union, BCLRB court breakthrough or innovative clauses headway by arguing economic
1993 (pg. 440) noted the  Arbitrators should employ objective criteria, such as necessity, but they must open
 The Board following comparable terms and conditions paid to similar employees their books if they do
considered the principles five  There must be internal consistency and equity amongst  The imposed collective
that should inform the factors employees agreement should also not
imposition of conditions in  The financial state of the employer is a critical factor reflect the perceived relative
the first collective (must be evidence) strengths of the parties.
agreement  The economic and market conditions should be
considered
 AUTHOR & PIECE DESCRIPTION

 Evaluates the operation of the various regimes of first contract arbitration across Canada
 Boards have not been eager to grant first contract arbitration
Jean Sexton, “First o Teledyne Industries: before first contract arbitration can be ordered, it must be proved that collective bargaining
Contract Arbitration: A has been unsuccessful and reached an absolute end (s. 43 is not intended to remove the duty to bargain)
Canadian Invention”  Concludes that although only the Quebec experience could be called an unqualified success, first contract arbitration
could be an important and effective remedy in other Canadian jurisdictions it their labour relations boards were prepared to
use it as extensively as it has in Quebec
 This shows how everyone had their concerns, shows the mixed bag saying was it good for union, good for employer, good
for public.
Used very rarely which just goes to show its success as a deterent to bad faith bargainning
Judy McCormick o She points out that the entire system we have is highly reguatled from beginning to end.
(Canadian Labour Law
Review 1st Contract o she says how can you talk about free CB when everything you do is essentially goverened by a code of conduct.
Arbitration in Onatrio-
A First Glance) o The legislation first tells you WHEN YOU CAN BARGAIN, HOW TO BARGAIN, REQUIRE UNION SECURITY CLAUSES (rand
clause), FREEZE PROVISIONS.

o From the union perspective is it really free CB if the employer can use s. 42 (ignore the union and declare their offer to be their
final offer and declare a vote) the boards power to determine the bargaining unit has a huge impact on bargining and
effectiveness this again limits your “free bargaining right” So given the large amt. of control it is really stupid to talk about free
CB, we have highly controlled Bargaining Because the primary goal of thelegislaiton is to keep people at work, and to have a
stable formula and stable process which facilitates production.
Chapter 8 – Industrial Conflict
o When Strikes Occur: (1) people fail to negoitatie first contract agreement (2) trying to renew an existing agreement

o BUT you cannot engage in strike: (1) for the purpose of compelling the employer to recognize the union (2) if you have an issue during your CA you go to
grievance arbitration (4) You CANNOT engage in strike when CA expires until you have gone through the conciliation process set out in the legistiaon.

Introduction
 There are three key features of the strike and lockout regime in Canada
o Strikes and lockouts can only be used for collective bargaining purposes (to obtains one’s goals in a collective agreement)
o Strikes and lockouts have been outlawed for recognition purposes 🡪 s. 79(2)
o They are outlawed for settling disputes during the life of the collective agreement 🡪 s. 79(1)

Thresholds for Regulating the Use of Economic Power

 There are a number of provisions that limit the use of economic power:
1. S. 18(1) Appointment of conciliation officer / S. 19(1) Appointment of mediator – conciliation/mediation process—this allows you to request
concilaiton officer after you have given notice to bargain. So really you are asking for it at the start of the process, but the board does prefer for the
parties to try to meet once and make some effort.
 But just cause you ask for a concilaiton officer doesn’t mean you get one immediately “Shall” appoint so they can drag their feet
 Concilaiton officer will meet with the parties and try and help them reach CA, if the CO gets to the point where they feel there will not be
able to get the parties to move, one of the options is for the board to appoint a concilation BOARD pursuant to s. 21(a) but this is never
done, the minister instead will realease a “no board report” pursuant to s. 21(b)
2. S. 79(2) No agreement – where there is no CA, no strike or lockout can occur until conciliation officer or mediator has been appointed by the
Minister followed by a 14 day cooling off period following the relase of the “no board report”
 but the “no board reports” s. 122(2) are deemed to be realesed on the second day of
 in order to be in a legal strike position 16 days have to elapse from the mailing of the “no board report” released and note the day of
mailing is not included in the calculation of the
3. S. 79(3) Mandatory strike vote / S. 79(4) Same – there must be a vote during the prescribed time that garners more than 50% support
4. S. 41. Where minister may require ramification vote / S. 42(1) Vote on employer’s offer – the minister may order, or the employer may
request the minister to order, an employee vote to ratify the last employer offer on all outstanding issues (Final Offer Selection)
5. 40(1) Voluntary arbitration – the parties may at any time after the notice to bargain is given irrevocably agree in writing to refer all matters
remaining in dispute between them to an arbitrator. This is often used by a weak union to embarrass the employer.
AUTHOR & DESCRIPTION
PIECE
  There is a lack of symmetry with respect to the peace obligation
Paul Weiler,  The prohibition on strikes or lockouts is absolute whereas the grievance arbitration mechanism states that all collective
Reconcilable agreements are deemed to contain a clause with respect to grievance arbitration over the interpretation, application, and
Differences: administration of the collective agreement – therefore, if it isn’t in the collective agreement, you can’t dispute it
New Directions  The OLRA should be amended to allow for a right to strike where there is a fundamental change
in Canadian  Federal and a few other jurisdictions adopted the provisions for (technological change)
Labour Law

A Constitutional Right to Strike?

 Note the BC health care and in Fraswer they allude to it (freedom of association = constitutional right to bargain fairly)
 Larry does acknowledge that the charter has helped labour, but that it has stopped short of a constitonal right to strike.
 Both federal and provincial goverenments ALWAYS have the power to order people back to work when public interest and stake

Case and Facts Holding Reasoning and Ratio Notes and Exceptions
Re Public Service Employee   Freedom of association only includes the right to form  Overrules Broadway
Relations Act (Alberta), SCC 1987 There and participate in a union – it does not include a guarantee Manor Nursing Home
(pg. 450) was no to bargain collectively or to engage in a strike  Dissent: the Charter
 Several acts extended the Charter  Charter protection will protect the exercise, in should provide protection
bargaining period thereby limiting violation association, of such rights as have Charter protection when at least as great as those in
the right to strike at certain times. exercised by the individual – because of the nature of the international human rights
Union brought a challenge under collective regime, no analogy can be drawn between striking documents that Canada
2(d) for violation of freedom of union employees and an individual leaving work has ratified – ILO Con.
association.  Recall Dunmore case – where there was some
 SCC been fairly consistent suggestion by the SCC in 2001 that there was a right to
(BC Health, Fraser etc) in not collective bargaining.
extending it to find a constitonal
right to engage in work
stoppages.
Dunmore v. Ontario (AG), SCC There was  The LRA was designed to protect the right freedom of  representations 🡪 s.
2001 (pg. 224) a violation association 3(b.1)
Agricultural workers argued that of 2(d) that  Does this suggest that it protects a right to bargain  This decision may
LRESLAA as well as the OLRA was not collectively? No, but it comes close (some further cases have have finally resulted in a
exclusion in 3(b) violated their right justified clarified that it doesn’t). more liberal
to freedom of association by denying under s. 1.  However, freedom of association does not protect an interpretation of s. 2(d)
them the ability to establish, join and (failed activity on the basis that it is an essential purpose of the
participate in the lawful activities of a minimal association – FREEDOM OF ASSOCATION DOES NOT
trade union. impairment PROTECT THE RIGHT TO STRIKE
)

Impact of Dunmore and Today’s Implications

o Dunmore lead people to believe that agriculture workers are allowed to organize, but worries about if they ever striked, the government would call them an
essential service and put them back to work

o In reality, agriculture wokers did not get all the benefits of the legislation- they got the firgh to form and maintain associations (under the agriculture employees
protection act) but not the right to engage in collective bargaining (no right to strike)

BC Health Care
o Many people think this case would force a re visit of Dunmore (but this case discusses procedural rights not substative rights)

o This case did go further than Dunmore and imposed a duty to bargain in good fatih obligation on employers

o This case does not stand for the principle that you have a right to a collective agreement

Fraser
o Meaningful Collective Bargaining Requirements: (1) must be statutory duty to bargain in good faith (2) must be statutory recognition of the principles of
exclusivity and the majoritarianism (ensure that you only have one entity representing the employees) (3) must be a statute mechanism for resolving
bargaining impasses

AUTHOR & PIECE DESCRIPTION

 In the Alberta reference, 3 of the 6 justices made it clear that s. 2(d) does not include the right to bargain collectively.
Brian Etherington, “An However, McIntyre J. was ambiguous 🡪 but it appears that the possibility that other aspects of collective bargaining
Assessment of Judicial receiving Charter protection has been foreclosed in the Public Service of Canada v. Northwest Territories [PIPS] case.
Review of Labour Laws  In that case the majority of the SCC agreed that the government was under no constitutional obligation to bargain
under the Charter” collectively or provide any statutory scheme for collective bargaining by recognition or certification.
Legal Prohibition of Strikes and Other Economic Sanctions: The Peace Obligation
 A strike traditionally takes the form of a complete cessation of work – although there are many other pressure tactics that involve partial work stoppages
(i.e. work to rule)
 On the employer’s side, the lockout, a counterpart to the strike, involves the employer closing the enterprise
 Exam: Strikes are Last Resort- Limited to disputes over the negotiating of the collective agreement
 The only significant exception to the ban on strikes/lockouts during the life of the collective agreement is found in the BC, Manitoba, and Federal
legislation which require the employer to give the union advanced notice of technological changes during the life of the collective agreement – a duty to
bargain then arises vis-à-vis these issues
 Another common hurdle to work stoppages is the requirement that the dispute be submitted to conciliation or mediation before a work stoppage may
begin 🡪 s. 79 (2)
o In addition, some jurisdiction, including Ontario, now require compulsory strike votes (s. 79(3-4)) and votes to accept the employer’s last
offer (s. 42)

Definition of Strike
 1. Strike: Note Different requirements between strike and lockout
“strike” includes a cessation of work, a refusal to work or to continue to work by employees in combination or in concert or in accordance with a common
understanding, or a slow-down or other concerted activity on the part of employees designed to restrict or limit output

 Two conditions of a strike: (1) Conserted Employee Activity (2) Disruption of the Employers Production

Actions Constituting a Strike: Common Action or Concerted Activity

 Conserted Employee Activity
o In Ontario, the disruption does not have to be directed towards any particular purpose or group. In other words, it doesn’t have to be a work
stoppage which is designed to get the employer to agree to a new collective agreement.
o EG: refusal to work overtime, refusal to do certain types of works, hot cargo situations (refuse to handle some else’s cargo), refused to cross
someone else’s picket line.
 It does not take much for the Board to find that there is a tacit ‘common understanding’ between employees.
 S. 79 created compulsary strike votes- this is another hurdle to be able to strke

Case and Facts Holding Reasoning and Ratio Notes and Exceptions
CEETSWC v. Graham Cable, CLRB 1986 (pg.  The Board considered the  Outside the  Employer tried to
465) meaning of ‘strike’ peace obligation, get employees to sign
 Work to rule took place during the lawful  This was a lawful strike. economic pressure a document saying
time period must be concerted in they would perform
 Union argues that employees were order to have “strike” their job description.
disciplined for engaging in lawful strike activities, protection under the Act Those who didn’t sign
employer said it was because they were refusing to  During the lawful were excluded from
perform their functions in their job descriptions. strike period, the premises.
employers have the
option to lock
employees or get
replacement workers
when faced with
concerted activity in
the workplace – but
they are not free to
discipline or punish
people for engaging in
lawful strikes.
CUPW v. Canada Post, CLRB 1992 (pg. 469)  The employer is acting lawfully
 Union was engaging in concerted tactics in locking out workers so long as the
designed to decrease production during strike lockout is not used as a disciplinary
period; then employer locked out those tactic, but rather, as a lockout tactic
employees who had participated.  The employer’s conduct in this
 Union argued that lockout in response to case was a rotating defensive lockout,
slowdown was an unfair labour practice and this was fine.
 This shows that a partial
lockout might be an acceptable
tactic to use against a work-to-rule or
rotating strike.
 Conserted action: 2 or more
individuals protest on working
conditions (protected)
 Case and Facts Holding Reasoning and Ratio Notes and Exceptions
OSSTF v. Grand Erie District   U’s activities were “lawful activities” under s. 5;  School Board had
School Brd., OLRB 1999 (pg. 469) There however, the sending of the letter was not an unfair labour sent a letter to the union
 O began work to rule was no practice in light of the fact that this was a mature bargaining threatening legal action on
during strike period unfair relationship operating under an established statutory the grounds that the work
 Employer argued that there labour regime – Education Act to rule was illegal. The
were not protected “lawful activities” practice  Work-to-rule is a protected strike activity (work to rule is union then brought ULP
under s. 5 OLRA when employees to no more than necessary in the work place) allegations.
BC Terminal / Saskatchewan   There was a finding that the union was responsible for the  The statutory
Wheat Pool v. Grain Workers, This was concerted refusal to work overtime - in order to find unlawful definition of strike cannot
CLRB 1994 (pg. 471) an strike activity, the Board must conclude that the union was the be changed by an
 Employer argued concerted unlawful architect of the employees concerted refusal agreement of the parties
refusal by employees to work strike  Actions which are acceptable for individual  Here, the parties
voluntary overtime employees, because of collective agreement provisions, were in the midst of
 Collective agreement stated may constitute an unlawful strike when done in combination collective bargaining, and
workers could refuse overtime or as a concerted action. not a lawful strike position.
 Union convinced a bunch of
employees to refuse to do overtime
= illegal strike
CBC v. Canadian Media Guild,   As a result of the union’s message to the employees,  Note that the memo
CIRB 1999 (pg. 472) This was refusals to cross the picket line were “concerted action” also said that ‘refusal to
 Union told employees that it an and therefore, amount to a strike cross the picket line would
would support any member who unlawful  The Board noted that the memo had conflicting messages be an unlawful strike’ and
refused to cross picket strike. – on the one hand, it told employees that refusing to cross was that a decision not to cross
illegal, and on the other, the union said that it would fight for had to be a personal
them if they did not cross. decision.

The Strike Prohibition and Sympathetic Action

 Sympathy Clause: employees can honour another BU’s picket (in no sympathy clause and you (as a group/ conserted) honour the picket line this may =
illegal strike)
 Illegal strike could result in suspension of employees, letters in files BUT if they did this employees may just do bare bones like “forget” meetings etc.

Case and Facts Holding Reasoning and Ratio Notes and Exceptions
Union v. Maritime Employers  The  A strike is a refusal to work by employees in concert,  In Progistix-Solutions
Association, SCC 1979 (pg. 472) action in combination, or in accordance with a common v. CEP, OLRB 1999 (pg.
 When harbour police went constitute understanding - OBJECTIVE 474) the union told
on strike, union refused to cross the d an  In this case, the “common understanding” was of members to wait 5 mins. in
picket line and the harbour closed illegal “universally understood union solidarity” sympathy at picket line of
down strike other union before crossing
– this was an illegal strike.
Nelson Crushed Stone Union v.   No clause can make lawful that which would otherwise  Such clauses can
Martin, OLRB 1978 (pg. 474) There be unlawful – concerted refusals to work on the part of limit the liability of
 Collective agreement was an employees when there is work scheduled constitutes a strike employees and/or the
expressly permitted the employees illegal regardless of the terms of the collective agreement union under the terms of a
covered to refuse to cross a lawful strike collective agreement
picket line

Is Political Protest a Strike?

 Whether a purposive restriction should be read into the definition is highly controversial
 In BC Hydro and Power Authorities and International Brotherhood of Electrical Workers, in the context of the “national day of protest”, the BC Board
held that the BC definition of “strike” required a subjective intent on the part of the workers to elicit an employment-related response from an employer,
and that this could not be found in political protest
 However, in Ontario, where there is no purposive language in the definition of strike, the national day of protest constituted an unlawful strike (see
Domglas – pg. 477)
o This approach was reaffirmed in General Motors of Canada Ltd., where it was argued that the prohibition on strikes violated Charter rights
insofar as it precluded political protests – while the prohibition on strikes was an infringement of s. 2(b), it was a reasonable limit

Economic Sanctions Available to Employers (Lockout)

Definition of Lockout
 The purpose of a strike in Ontario is irrelevant but the purpose of a lockout is fundamental, and crucial for definit it as such. As with strikes, labour
relations statutes impose restrictions on when employers can declare lockouts
 S. 1. Lockout: (1) action of preventing work (2) closing was done to (a) compel employees to refrain from excercinging rights and privledges under the act
(b) deny ppl acess to work to compel them to agree to changes in provisions and work conditions.
 Lockout will be either lawful or unlawful it depends on whether or not you have completed or exhausted the conciliation process
“lock-out” includes the closing of a place of employment, a suspension of work or a refusal by an employer to continue to employ a number of employees,
with a view to compel or induce the employees, or to aid another employer to compel or induce that employer’s employees, to refrain from exercising any
rights or privileges under this Act or to agree to provisions or changes in provisions respecting terms or conditions of employment or the rights, privileges or
duties of the employer, an employers’ organization, the trade union, or the employees;

 This definition does not include an unconditional plant closure – see s. 84 (i.e. an employer moving production to Mexico is not a lockout – although a
threat to move may be an unfair labour practice) does not include when employer decides to shut down for economic reasons
 Generally, the same restrictions that are imposed on the right to strike are imposed on the right to lockout
o Similar timelines also apply to the unilateral alteration of working conditions – the employer may initiate such alterations at any time following
the expiry of the statutory bargaining freeze
 Humpty Dumpty: a closure can be challenged as an untimely lockout if the union can prove it is merely a bargaining ploy
 Canadian National Railways Co. and Council of Union Railways: the unilateral alteration of working conditions is possible at any time following the
expiry of the statutory bargaining freeze – while it has been argued that this is tantamount to bargaining with individuals employees, the duty to bargain
requires only that employer must first give the union an opportunity to accept proposed terms before acting on its own, and that employer’s conduct must
otherwise show a willingness to conclude a collective agreement
 Timing is important as soon as you go through conciliation process, you can make unilateral changes to employment terms or refuse access to
the work. It is a very strategic decision/ approach by emplooyers. Sometimes unions will try and force you to strike by engaging in their own activints.

Case and Facts Holding Reasoning and Ratio Notes and Exceptions
Westroc Industries Ltd. v. United Cement Union, OLRB  There  So long as the employer’s  A permanent lockout
1981 (pg. 478) was no unfair motive is free of anti-union of bargaining unit
 W thought that U was prolonging negotiations to labour animus, a lockout and employees would not be
conduct multiple sympathy strikes so W locked out the practice replacement employees can be aimed at achieving a
employees (unlawful a powerful economic tool collective agreement
 The company hired replacements lockout)
 U alleges unlawful lockout under s. 82

Unlawful Lockout Examples

 CA in force, employer wants to change terms midCA, employees say no, employer then lays off employees for “economic reaosns”

o If you engage in an illegal strike you are subject to discpline by employer, but the board may also get involved (remedies against union, employers,
and individuals)
  S. 103 provides access to arbirarion process if you DON’T have a CA reached yet.

o you need this because if you don’t have a CA, you don’t have that mandatory access to arbitration, that’s why this section is soo important.

Legal Forums Regulating Industrial Conflict

 Today, most aspects of the collective bargaining process are governed by a unified regulatory regime administered by labour relations boards
o This is not true, however, of strikes and lockouts and of related activities such as picketing – in this area, courts, labour relations boards, and
grievance arbitrators will all have a thumb in the regulatory pie (concurrent jurisdiction)
 Common law tort doctrines have been used to regulate strikes and picketing (civil suits)
 In most jurisdictions, primary responsibility for the enforcement of provisions governing strikes/lockouts is given to labour boards
 Violation of collective bargaining legislation may also lead to criminal prosecutions
 Through convention and provisions such as 48(1) of the OLRA, collective agreements contain no strike clauses which are enforced
through grievance arbitration

The Role of the Courts

Criminal Jurisdiction
 Basic Criminal Code prohibition against assault, mischief, and other forms of trespass to persons/property may be violated by conduct during labour
dispute (Jonathan Eaton)
o There is also an offence called “watching and besetting” that is particularly relevant to an industrial conflict – s. 423 but there is exception for
picketing s 423(2)
 There OLRA also makes provision for quasi criminal prosecutions
o 104. (1) Offences – anyone who contravenes any provision of the Act, or any decision make under the Act is liable to the prescribed fine (you
need written consent of board, very unusal, but still out there) 109. (1) Consent – no prosecution shall be instituted without consent in writing
of the Board
o There is vicarious liability for people acting under the direction of the union, s. 107 (2)
 However, there are two limitations to these provisions:
o The access to these prosecutions have been significantly limited
o They are rarely used because fines are payable to the Crown and not the complainant

Civil Jurisdiction
 A lot of the torts have fallen to the wasteside, but some have been restructured (EG Like pepsi cola case where courts said you could do secondary
picketing, but you cannot engage in secondary picketing where that conduct constities a criminal or civil wrong).
 The court’s civil jurisdiction has been much more important than their criminal jurisdiction because they bring immediate relief and damages may even
be available
 There are a number of different causes of action that have been used against industrial action
 Nominate torts such as assault, trespass, and defamation, which protect basic interests in physical security of the person and property can ground suits
o However, more relevant are the newly developed economic torts designed to provide redress against losses resulting from the hostile use of collective
strength
  The most frequently used of these torts are conspiracy and inducing breach of contract
 Canadian courts have taken a flexible approach to the application of these torts in granting remedies, rather than a rigorous focus on the
technical requirements of the torts
o The tort of conspiracy to injure by lawful means
 This tort has three requirements: (a) A combination of two or more persons (b) An intention to cause economic injury to the plaintiff and the
causing on such injury 9c) A predominant purpose or motive that the courts do not recognize as being legitimate interest
o Conspiracy to injure by use of unlawful means
 This tort has three requirements: (a) A combination of two or more persons; (b) An intention to cause economic injury to the plaintiff; and (c) The
use of unlawful means to cause the injury
o Tort of directly inducing breach of contract
 This tort has five requirements: (a) The intention by the defendant to cause economic injury to the plaintiff (b) Knowledge by the defendant that
there is a contract between the plaintiff and a third party (c) The requisite knowledge will exist if the defendant ought reasonably to believe that a
contractual relationship exists (even if not the specific terms), or if the defendant is reckless as to whether a contract exists (d) The use of
unlawful means by the defendant to persuade the third party to breach the contract (e) The breach of the contract (f) Economic injury to the
plaintiff as a reasonable consequence of the breach
 There is a defence of justification; however, the pursuit of union objectives has not been found to be a justification (see Stratford v. Lindley)
o Tort of Indirectly Procuring Breach of Contract by Unlawful Means
 This tort has five requirements: (a) The intention by the defendant to cause economic injury to the plaintiff (b) Knowledge by the defendant that
there is a contract between the plaintiff and a third party (c) A threat by the defendant to use unlawful means against the third party unless the
latter breaches his or her contract with the plaintiff, or the actual use of unlawful means for that purpose by the defendant (d) The breach of the
contract (e) Economic injury as a necessary consequence of the breach
 The defence of justification is not traditionally available (but see Morgan v. Fry)
o Direct interference with contractual relations falling short of breach
 This tort was “discovered” by Lord Denning in Torquay Hotel Co. v. Cousins – it has three requirements:
 An intention by the defendant to injure the plaintiff economically;
 An action by the defendant that has the effect of hindering or preventing performance of a contract between the plaintiff and third
party; and
 That the defendant’s action was a direct cause of that result
 Acrow (Automation) Ltd. v. Rex Chainbelt: added the qualification that the action causing the interference must be unlawful; however,
Canadian courts tend to follow the less rigorous test
o The tort of intimidation
 This tort has three requirements: (a) An intention by the defendant to injure the plaintiff economically (b) A threat by the defendant to use
unlawful means against a third party unless the latter takes action that will injure the plaintiff economically, (c) Action by the third party against the
plaintiff which is lawful in itself but which causes the plaintiff economic injury
o The tort of intentional injury by use of unlawful means
 This residual tort has two requirements: (a) An intention by the defendant to injure the plaintiff economically (b) Use by the defendant of unlawful
means
 No combination is needed
  Rooks v. Barnard: “unlawful means” includes any illegality, whether it be an offence, a tort, or a breach of contract
 While industrial conflict situations may in fact give rise to many of these torts, there are serious limitations on their availability:
o 3(1) Rights of Labour Act – any act done by two or more members of a trade union in furtherance or contemplation of a trade dispute, is not
actionable unless that act would be actionable if done without any agreement or combination
o However, courts have interpreted secondary picketing as going beyond the scope of a “trade dispute”
o When an industrial action constitutes a breach of a labour relations statute, the economic torts are less important (although, the breach of a labour
relations statutes will constitute “unlawful means” for the purpose of the tort)
 Gagnon v. Foundation Maratime Ltd. (SCC): the violation of a statutory strike ban constitutes unlawful means for the purposes of the
tort of conspiracy to injure by unlawful means
 Contrary to other areas of the law, in the labour relations context, courts have been willing to base civil actions on breach of the labour relations
statute alone, without making the breach a component of an identifiable tort
o International Brotherhood of Electrical Workers v. Winnipeg Builders Exchange (SCC): upheld an injunction against an illegal strike without
relying on an economic tort (see also Maritime Employer’s Assdociation)
 Some courts have begun, when asked to grant an injunction based on one of the above mentioned economic torts, to indicate a willingness to give weight
to the striking worker’s interests in peaceful picketing in support of a lawful strike, even where that picketing has secondary effects (see Pepsi-Cola
Beverages v. RWDSU)

The Legal Capacity of Trade Unions to Sue and be Sued

 At common law, a trade union is traditionally considered to be a voluntary unincorporated association, and therefore, not a legal entity – it is a web of
contracts between the various parties that incorporate the terms of the unions constitution
 The common law has long taken the position that such associations cannot be sued unless a statute says they can
o Obviously if an indiviusal commits a tort, the fact that they were a member of union doesnnt isolate them frm a tort action, you can be sued in your
individual capacity. But if you want to sue a union this could be a problem.
 3(1) Rights of Labour Act – a trade union shall not be made party to any action unless it may be so made a party, irrespective of this Act or the OLRA
o This provision has often been held to MAKE THERIEN INAPPLICABLE IN ONTARIO
o However, it may be possible to bring a representative action against named officers, on the basis that they represent the interest of the entire
membership in the particular matter (these have been restricted to situations where the union has a trust fund which would allow it to satisfy a
judgment)
Case and Facts Holding Reasoning and Ratio Notes and Exceptions
Int’l Brotherhood of Teamsters v. The union was capable of being sued civilly  Union was a legal  The court applied
Therien, SCC 1960 (pg. 488) Note: Federal case person because of its Taff Vale Railway v.
 T contracted with CC for status under the BC LRA Amalgamated Society of
services and U demanded that T and could be made liable Railway Servants
become a member in name for damages  The union committed
 T refused, U threatened to either for a breach of a the tort of intentionally
picket CC, so T’s contract was provision of the Act or causing economic injury by
terminated and T sued U under the common law unlawful means
  The granting of rights,
powers, and duties was
inconsistent with the
argument that the
legislature did not intend the
union should be a legal
entity
 This means
federally, a union can be
sued. But not in Ontario!
#Weber  Strikes probably don’t fit into the notion
If you have tort/ charter breach in of “arising out of the CA”
context of CA = grievance arbitration  BUT there have been some cases
where conduct by one member and against
another member sent to arbitration.
 We don’t know the scope of Weber BUT
KNOW—if someone comes into your
workplace and you say hurt want damages,
you need to ask where do you work and is it
unionzided work palce. Because if subject to
CA terms and conditions, instead of charging
off to the courts you need to go to the labour
board becuas court wont have jurisdicaiton

Professional Institute of Public  The Rights of Labour Act, being a  Also suggested doing
Service v. Canada (AG), Ont. CA provincial statute, does not preclude a suit away with restriction in 3(2)
2002 (pg. 493) in Ontario courts by a union operating on the capacity of unions to
within the federal jurisdiction sue and be sued in obiter
(see United Nurses of
Alberta - SCC)
 o LARRY THINKS MAYBWE WE SOHOULD ALLOW SUING UNIONS WHEN THEY CAUSE ECONOMIC PROBLEMS

Civil Remedies: Damages and Injunctions

 Damages have on occasion been awarded in cases arising out of labour disputes (See Steelworkers of America v. Gaspe Copper Mines Ltd. – SCC)
o Punitive damages are designed to discourage the defendant and others from repeating a tort, and may be assessed in whatever amount the
court believes is necessary to accomplish the result
o However, employers have rarely pursued damage claims – they are more often used as a bargaining counter to obtain a settlement, either for a
lesser amount of damages or for favourable collective agreement terms
o Further, the process required for the court to have the capacity to award damages is extremely time consuming
o These practical impediments have made actions in damage very rare, and have become rarer still as a result of the SCC’s decision in St. Anne
Nackawic
 Injunctions have always played a much more significant role than damages in labour disputes, primarily because of the speed and relative ease with
which they can be obtained and because they immediately prohibit industrial action
o Recently, labour legislation has sought to replace injunctions with cease and desist orders issued by labour boards (s. 100 and s. 101)
o The technique generally developed by courts to make quick relief available was the interlocutory injunction – granted on motion, it preserves the
status quo pending the outcome of a full trial in circumstances where the applicant was in danger of suffering irreparable harm that could not be
adequately compensated by damages after the event
 While a subsequent trail is envisaged, the interlocutory motion nearly always disposes of the case
o There have, however, been a number of concerns raised regarding interlocutory injunctions in recent years:
 Undue haste in the proceedings (often ex parte, without notice, and base on mere allegations)
 Laxness with respect to proof (affidavits v. viva voce evidence)
 Not normally appeal-able except with the consent of the court
 The scope of the injunction is very broad and may bind persons with quite different interests
o As a result, many jurisdictions have reformed the injunction procedure
 102. Courts of Justice Act – no injunction may be given on an ex parte basis (a number of additional safeguards are imposed in inter
partes proceedings)
 There are certain limited exceptions, such as irreparable damage or injury, essential services, etc. and where the judge believes
that it is otherwise proper to dispense with notice
 This section is only applicable to actions “in connection with a labour dispute” (this is of particular significance in the context of
secondary picketing)
 Even in jurisdictions where there ha not been legislative reform, court have implemented their own procedural safeguards
o There is also concern over enforcement of injunctions because they must be obeyed even though its validity is challenged:
 Disobedience of an injunction constitutes contempt of Court, which is punishable in summary proceedings by fine or imprisonment, the
severity of which is at the judge’s discretion – what constitutes disobedience is a matter of judicial discretion
 BC has purported to remove the court’s capacity to grant injunctions in labour relations matters in all but the most serious circumstances
(BCLRA)
o Before a civil court may assert jurisdiction and grant any remedy, the plaintiff must assert a cause of action (although this is not always strictly
respected)
  However, this has been limited by Brotherhood of Maintenance of Way Employees v. Canadian Pacific Ltd.: the required cause of
action can be found in another forum

Case and Facts Holding Reasoning and Ratio Notes and Exceptions
RJR MacDonald Inc. v. Can. (AG),  The 1. A preliminary assessment of the merits of the case to  The test is simple to
SCC 1994 (pg. 494) test was ensure there is a serious question to be tried state but difficult to apply
 The court developed a summariz 2. A determination of whether the applicant would suffer
threes stage test for deciding ed by irreparable harm if the application were refused
whether to grant an interlocutory Sopinka 3. An assessment as to which of the parties will suffer greater
injunction and Cory harm from granting the remedy pending a decision of the
JJ. merits
United Nurses of Alberta v.   Unions can be found liable for criminal content where they
Alberta, SCC 1992 (pg. 496) Guilty of knew, intended, or was reckless as to whether defiance
 Considered the propriety of criminal would publicly bring the court into contempt
using criminal contempt contempt
proceedings to enforce an order
prohibiting an illegal strike by
nurses.
 The order in this case was
the Board’s cease and desist order.

Case and Facts Holding Reasoning and Ratio Notes and Exceptions
St. Anne Nackawic Pulp & Paper   The grievance and arbitration procedures provide the  The BC legislation
Co. Ltd. v. Union, SCC 1986 (pg. Damages exclusive recourse open to parties for enforcement of the did not give board C&D
498) were not collective agreement powers
 The union was engaged in available  However, the court does have the power to issue  AG-O v. O.T.F.:
an unlawful sympathy strike and injunctions, not as a means of enforcing the collective refused government’s
the employer commenced an agreement, but as a means of enforcing the general law request for an injunction
action embodied in the statutes because it had made no
 Injunction was granted, and  Civil damages are not part of the remedy the courts can apply – attempt to use the OLRA
union was found in contempt of they are available through the arbitration procedure  S. 103 of the OLRA
court x 2.  S. 103- rememdy when no CA in place, can give arbitration this allows OLRB to set up
 NB Court awarded further illustrates the preference to tribunal over courts arbitration board to hear
damages against union. Union case for damages if
challenges jurisdiction to do so. unlawful strike.
 FAMOUS CASE

The Role of Labour Relations Boards (you have rant earlier about this)
 The labour board and arbitrators do not award punitive damages- they award compensatory damages (note an emloyer has a duty to mitigate his
damages)
 If a board order is not obeyed, the board does not have contemp orders, you would need to file the boards order with the court and then the court could
give you contempt under s. 102
 Labour relations boards are the principal forum for enforcing the limitations on strikes and lockouts set out in labour relations legislation
 The declaratory authority of some boards has been supplemented by a very flexible and broad remedial jurisdiction
o S. 100. Declaration and direction re unlawful strike – where a trade union calls an unlawful strike, the board may so declare and it may direct
what action, if any, any person shall do or refrain from doing with respect to the unlawful strike 🡪 similar provision for unlawful lockout s. 101
 Recall s. 96(5) reverse onus for unfair labour practice. If you allege that there is an unfair labour practice (i.e. the illegal strike is an unfair labour practice)
🡪 this triggers s. 96(5). The onus then shifts.

Case and Facts Holding Reasoning and Ratio Notes and Exceptions
National Harbours Board v. Syndicat, CLRB   The Board will exercise its discretion to deal with  This approach
1979 (pg. 506) Board unlawful work stoppages in the manner most healthy to the ensures effective
 Union went on strike early (conciliation issued collective bargaining and not necessarily in the manner that long term collective
was delaying) a C&D resolves the matter most quickly bargaining relations
 The strike was very time sensitive order  THIS IS AN EXAMPLE OF PROSECUTION, BUT SO
RARE
Syndicat L’Acadie v. Canada (LRB), SCC The  The board does not have the power to order the
1984 (pg. 509) remedy submission of an issue to expedited arbitration as part of
 Unlawful work stoppage over was its remedy for an illegal strike
grievance overrule
 Board ordered expedited arbitration d

Arbitrators’ Role in Industrial Conflict

Awards of Damages by Arbitrators
 Because most collective agreements contain no-strike clauses (sometimes by legislative decree), violations of these clauses are breached of the
 agreement and may be the subject of arbitration proceeding at the insistence of the employer 🡪 s. 48
o St. Anne Nakawic established that arbitrators have the exclusive authority to award damages against the union for such a breach – but they will do
so only if the union itself is responsible for the breach
 On the authority of Polymer, arbitrators have held that they have the authority to award punitive damages
o However, such awards are rare, primarily because they would diminish prospects of future employment; in terms of ordinary damages, they are
seen as compensatory in nature and the parties are held to strict proof
 Note: pursuant to s. 107(2) unions are vicarious liable for conduct of union officals

Case and Facts Holding Reasoning and Ratio Notes and Exceptions
Oil and Chemical Workers &  The  Arbitrators have the jurisdiction to grant whatever  So it seems that an
Polymer, 1958 (pg. 509) board remedies may be required to ensure the effective arbitrator can award
 Company brought a could enforcement of the collective agreement – legislature would punitive damages, but
grievance over a strike during the award not have set up this regime without the power to effectively not the Board?
lifetime of the collective agreement damages enforce the provisions of the collective agreements
alleging violation of no-strike cl  The board has a very broad scope of jurisdiction in terms
of remedial power – as long as it can be seen as necessary for
effective enforcement

When are Unions Liable?

 Attorney General for Newfoundland v. Newfoundland Association of Public Employees: Goodridge J. suggested a list of measures that, in the
circumstances before him, the union hierarchy could have taken to avoid liability when an illegal strike occurred (See 511)
 An exception to the concept of the illegal strike in general is the health and safety exception – arbitrators have always recognized that work stoppage
caused by a reasonable apprehension of immediate threat to the workers’ health and safety is a justifiable work stoppage (must be a subjective belief with
reasonable grounds for that belief)
 Do union officials have obligation to stop unlawful strikes—larry says no affirmative obligation to do anything. Larry expects the court at some point to say
we recognze that you don’t have total control over your members, sometimes they do foolish things, but given your relationship with that

Case and Facts Holding Reasoning and Ratio Notes and Exceptions
Oil and Chemical Workers &  The  The union is not held to a standard of absolute liability  Anyone above the
Polymer, 1958 (pg. 509) board – it must be proven that union officials were somehow the cause position of a union steward
 Company brought a could of the strike would be subject to that
grievance over a strike during the award  However, the union can be held liable for omitting to standard
lifetime of the collective agreement damages act to bring and end to the unlawful strike
alleging violation of no-strike cl
Employer Disciplinary Action against Strikers
 If the legal workstopages including violence, employers have right to engage in discipline and fire people, in those cirucmstances the union will allege that
the matter has been blown way out of proproition by the employer, you may endup in front of the board if you do this, these matters become a difficult part
of the return to work protocaol.
 Involvement by an employee in an illegal strike does not in itself rupture the employment relationship; however, it does expose the employee to discipline
for cause (the degree of punishment will correspond to the level of participation)
 With respect to a legal strike, it is an unfair labour practice for an employer to discipline employees because of their participation in a legal strike (Graham
Cable)
o More difficult is the question of whether the employer can discipline an employee, not for the act of striking, but for conduct during the strike
 Employer have argued that once a lawful strike is called, the employees are not “employees” anymore and they can be fired; however, this was rejected
in McGavin Toastmasters
 Case and Facts Holding Reasoning and Ratio Notes and Exceptions
Rogers Cable T.V. v. Int’l  Employers have the right  However, there are many cases
Brotherhood of Electrical to discipline workers for where employee’s get carried away
Workers misconduct while on lawful while on strike
strike, so long as it is directed at
particular conduct engaged in
during the strike, and not the act
of striking itself
 If there is any Anti-Union
Animus, it is an unfair labour
practice

The Regulation of Picketing

 In many strikes/lockouts, picket lines become the focus of the conflict and a considerable body of statue and common law has developed to regulate
these activities
 This is the greatest degree of overlap between court and boards (arbitrators have virtually no role in the regulation of picketing)
o In general, courts regulate the conduct during picketing and boards determine whether picketing is lawful
 The various forms of regulation draw a distinction between two types of picketing
o Primary picketing – picketing that takes place at the struck employer’s place of business
o Secondary picketing – picketing that takes place anywhere but the employer’s place of business (i.e. suppliers, distributors, retailers, etc.)
 Another form of secondary picketing is where employees picketing of their employer place of business, but that picketing has indirect
effects (See Sarnia Crane – where the board set up multiple gates at a construction site and allowed employees to picket their own gate)
 The court tend to be much more permissive toward primary picketing that secondary picketing
 There are a number of provisions of the OLRA that are relevant in this context:
 S. 81. Unlawful strike – no trade union shall call an unlawful strike and no officer of a trade union shall counsel an unlawful strike or threatened strike
 S. 83(1) Causing unlawful strikes, lockouts – No one shall do anything that they ought to know will cause another person to engage in an unlawful
strike/lockout
 S. 83(2) Application of subs. (1) – it does not apply to an act done in connection with a lawful strike/lockout
 S. 100. Declaration and direction by Board re unlawful strike – addresses the remedial powers of the Board
o Note that the Criminal Code makes provision that exempt picketing from criminal sanction 🡪 S. 423 (2)
 Common law Right: the need to preserve commercial activity trumps freedom to strike (this is pre charter)
 When you have confict between property rights and free speech, the private property rights trump.
 In most cases, where you have a clear conflict, freedom of expression rights of picketers usually taken second place.
 Court allow peaceful information strike by small number of strikers involved in lawful strike so long as it is just for the dissemination of
information, as soon as it starts to interfere with other rights the courts get mad.
 Case and Facts Reasoning and Ratio
Canex Placer Ltd. v. Union, BCLRB 1975 (pg. 515)  If acts which are illegal independent of the labour relations statute are committed in
Picketers blocked access to mine and uttered “some the course of picketing, the courts retain jurisdiction to deal with them (i.e. criminal or other
isolated threats of violence” during a legal strike civil wrongs)
 This remains true everywhere in Canada.
Toronto Transit Commission, OLRB 1996 (pg.  Union officers breached s. 83(1) by doing something that was likely to lead to an unlawful
517) strike.
Union officers publicly urged picketing of the TTC as  If the strike is lawful, then the Board does not deal with illegal picket line activity…that
a result of ‘days of action’ is the jurisdiction of the courts.

Primary Picketing
 Both labour boards and courts tend to allow a wide scope for primary picketing in support of a legal strike, if the picketing is focused directly on the
business of the struck employer and affects third parties only in their dealings with that employer
 When these limitations are met, the only limitations are found in tort and criminal law (physical obstruction, assault, mischief, trespass, watching and
besetting)
 The question is whether the picketing is “peaceful” and “informational” or violent and obstructive
 Because these questions are of general law, they are adjudicated in the courts
 While assault, trespass, obstruction and the like are generally outside the limits of peaceful picketing, the courts recognize that some degree of
interference that goes beyond polite conversation is implicit in picketing activities
 It is limited where personal security is being jeopordized, or when you physcilly impede someone, or if you enter private property, block streets
highways etc.
 S. 102(3) Courts of Justice Act - Steps before injunction proceeding – prior to seeking an injunction in a “labour dispute” the court must be satisfied
that reasonable efforts to obtain police assistance to prevent or remove an alleged danger of damage, injury to persons, obstruction, or interference with
entry/exit have been unsuccessful
 When injunctions are granted in a legal strike, the main objective is to deter the illegal activity that accompanies the picketing, not the picketing
itself
 Most injunctions regulate the number of picketers that can be on the line at one time and time of day that people can be held up
Case and Facts Holding Reasoning and Ratio Notes and Exceptions
Harrison v. Carswell, SCC 1976  The  Manitoba legislature has declared that anyone who  Subsequently, the
(pg. 519) owner trespasses on land which they have been asked not to enter legislature amended the
 C urged the court to find was is guilty of an offence legislation to overrule
that her right to picket peacefully entitled to  If there is to be any change in the law, it must be made Harrison v. Carswell
outweighed the proprietary rights of ban C by the legislature  Note that the
the owner  Larry says that correct decision should be in favour of people that argued this
peaceful disseminaton of information. Larry says this case who won, use to be
eecision was decided wrong. WENT ON BIG RANT HERE Dicksoons old law
partners, this could be
why this decision is so
off the wall.
Industrial Hardwood Products v.  The  As required under 102(3) of the CJA, I demonstrated  However, the order
Int’l Wood Union, Ont. CA 2001 injunction reasonable efforts to obtain police assistance but failed – limiting the number of
(pg. 521) was valid his burden pickets at each entrance
 Company applied for an  While the police did respond to specific calls – the test is to 4 is quashed
injunction limiting picketing during whether the police have given the employer effective control
a lawful strike of the situation
 Police could not guarantee
assistance

Secondary Picketing
 The argument use to be whether or not it was secondary picketing,

Case and Facts Holding Reasoning and Ratio Notes and Exceptions
Consolidated Bathurst   C was a natural alternative for the customers, there was no
Packaging C was evidence that employer directed customers to C, and no evidence of an
 C sought order not an arrangement for the customers to return from C following the resolution
preventing secondary ally of the strike
picketing – U argued that  “prohibition was meant to limit potential damage to third parties”
C was an ally because there was some opportunity to extend the scope of your information
there were two meetings provsion by using picketing.”
earlier
Pepsi-Cola Canada   Secondary picketing is lawful unless it involved tortious or criminal  This rule offered
Beverages v. Union, Up to conduct (wrongful action model) sufficient protection from
SCC 2002 (pg. 532) this  The wrongful action model balances the various interests at stake in a undue harm for neutral
 Union picketing case, manner consistent with the fundamental values of the Charter third parties when weighed
spread to secondary secon  “secondary picketing is not illegal persay, but there is a catch, you against the value of
locations such as retail dary can now engage in secondary picketing, however, if the picketing freedom of expression
outlets and involved picketi involves the commission of a criminal or tortuous activity it will not be
intimidating conduct at ng allowd.
management’s homes was  Most important part of case, is use of charter to enforce common law
illegal principls, all of this started with assumption that the hook for charter litigation is
government action, but cases like dolphin delivery makes it clear that some of
the charter values may be used to define the relationship between parties. The
charter is having an impact on the relatinship between unions and employers,
be aware of this.
Telus Communications   Under the Pepsi ratio, as long as the secondary picketing did not involve
 Union peacefully Was criminal or tortuous conduct, it was OK.
picketed the homes of this  It is not the location of the picketing that is important, rather the
company executives. allowe nature of the conduct that is important.
d?

Job Rights of Strikers

Employee Status during a Strike

 The “right to strike” is not expressly granted by labour legislation (nor is it granted by the Constitution) – it is implied by the legislation
 The issue here is the extent to which employees may retain their job during a legal strike
 In some provinces, the use of professional strike-breakers has been expressly forbidden
o S. 78(1) Strike-breaking misconduct, etc., prohibited – no employer shall engage in strike-breaking misconduct or retain the services of a
professional strike-breaker and no person shall act as a professional strike-breaker
o 80(1) Reinstatement of employee –to be re-instated following a lawful strike, the employee must make an unconditional application for
reinstatement within six months of the commencement of the strike
o See also s. 1(2) OLRA

Larry Tangent
 If you engage in unlawful strike (under CA) you can be subject to displine up to and including discharge, if you have a discharge and you want
reinstatement because maybe it was not justified, you could go to the board and grieve it.
  If you engage in lawful strike (not under CA) some people are of the view that you cannot be fired, because the management rights at that point are
extinguished in regard to the right to terminate.
 If you have an unlawful strike (with no CA) and you are discharged you cannot do arbitration to attempt reinstatement because arbitration flows from CA.
Futher, if you reach a CA, you cannot go to arbitration because anything that happened outside of the CA is outside the jurisdiction of arbitration.
o Wilson says that the solution in this scenario is to make the reinstatement, or the ability to arbitrate this dismissal, part of the back to work protocol
Case and Facts Holding Reasoning and Ratio Notes and Exceptions
R. v. Canadian Pacific   Employees have the right to participate in a  This decision was ultimately
Railway Co. [Royal York This was lawful strike – it is a statutorily protected right, affirmed by the SCC
case], Ont. HC 1962 (pg. 548) a ULP though not a Charter protected right.
 During a lawful strike,  Employees are not required to resign prior to a
employer told employees to lawful strike and are not deemed to cease to be
return to work on certain date or employees by the Act – s. 1(2) allows employees to
be fired retain their rights as such while on strike.
Union v. Eastern Provincial   Does the provision that states ‘upon return to  In Ontario, under s. 80, you can
Airways Ltd., CLRB 1983 (pg. Was this work, employees will retain their employee status’ mean return to your job six months into the
551) a ULP that they get their jobs back? strike. But if the strike last >6 months,
 E maintained (under  The legislation leaves no doubt that does this still mean strikers get their
operations by hiring 18 new the employees cannot be deprived of any term or jobs back? The Becker Milk case
pilots to fill strikers jobs and CLC)? condition of employment whatsoever as a result of suggests that if replacement workers
promised new workers they  participation in an unlawful strike. This includes their are used, the employer can retain the
would retain their jobs Yes. jobs. replacements after 6 months. But if
 When CA was reached, no one is retained, and the job still
old pilots wanted their jobs exists, you can probably go back to it.
backed and the employer
balked.

Replacement Worker Laws

 While Quebec’s Labour Code does not explicitly require the employer to cease operations, they greatly curtail its ability to maintain production and
reinforce the argument that under Canadian Labour Relations statutes, the right to strike is vested in the union and not in the workers individually. Thus, in
Quebec, you can’t use replacement workers.
 In Ontario, you can use replacement workers, managerial personnel, but you can’t bring in strike-breakers (s. 78). You can’t bring in a labour pool of
qualified employees to replace ‘struck’ employees.
 Section 78 strike breakers. Note if you hire to many scabs from same company then they are strike breakers and not allowed. So you want to
advertise generally for scabs.
 If employers refuse to allow access to old positions, you will have allegation of unfair labour practice.
 Retroactive top ops to pensions when you return from strike, employers will often agree to make up lost things during strike, this is important, it is part of
the back to work protocal. As employer probably not bad idea if you intend to continue to provide benefit during strke, you should let that be known.
 You really need to know the difference between SCABS (replacement workers) and regular employees scrossing the picketing line.
 People who cross picket lies not to do your work, but to do their own work they are called scabs but THEY ARE NOT SCABS, this is using it in the
wrong context.