First Collective Agreements The BC Labour Relations Board

First Collective Agreements The BC Labour Relations Board www. lrb. bc. ca

Overview of Section 55 in BC Leading Decision – Yarrow Lodge LRB Process Best Practices First Agreement Areas of Discussion Differences between BC and AB Experience in BC

Leading Decision on the Section 55 Process Yarrow Lodge Link available at: www. lrb. bc. ca � Click on Decisions > Leading LRB Decisions - under ‘First Collective Agreement (Section 55) Yarrow Lodge Ltd. , BCLRB No. B 444/93, 21 CLRBR (2 d) 1 (general application of Section 55)

Conditions for Appointment of Mediator under Section 55 Parties must have bargained in good faith and unable to reach agreement Union must have positive strike vote

Strike or Lockout The Section 55 application prohibits either party from strike or lockout action during the period while under Section 55 If a dispute has commenced, that activity must cease during the Section 55 process 3 month strike mandate is frozen

Matters in Dispute Must be Specified Applicant must provide a full listing of all matters in dispute and it’s position on each of those matters. A copy must be provided to the other party. Within 5 calender days, the other party responds with their list of disputed issues and it’s position on those issues

Board Procedure – Time Frame Within 5 calender days of an application, the Associate Chair will appoint a mediator Mediation begins Within 20 days – if First Collective Agreement is not concluded, the mediator shall submit a report to the Associate Chair

Mediator Recommendations on Settlement The mediator’s report may include recommended terms and conditions for a first collective agreement (reasonably likely to be accepted) and/or recommend a process as outlined below. The implicit threat the Mediator may direct the matter to interest arbitration is an incentive to parties to accept Mediators’ recommendations. If the recommendations are rejected by either or both of the parties, the Associate Chair will direct one of the following: Mediation/arbitration Arbitration, or Strike or lockout

Limited Issue Arbitration Is the failure to settle due to an ability to pay argument, and if so, is the Employer willing to provide necessary financial information to support that argument? Where such an argument can be substantiated and the Employer is willing to disclose information then in this situation a Mediator may find that it would be appropriate to direct the outstanding issues to limited issue arbitration

Binding Mediation/Arbitration or Arbitration Where the recommendations of the mediator are accepted by only one party Mediator believes that the conduct of one or both parties warrants a binding mechanism Considerations Bad faith or surface bargaining Refusal of the employer to recognize the Union Adoption of an uncompromising bargaining position without reasonable justification Failure to make reasonable or expeditious efforts to conclude a collective agreement or Unrealistic demands or expectations arising from either the intentional conduct of a party or from inexperience Bitter and protracted dispute where it is unlikely the parties will be able to reach a settlement themselves

Strike or Lockout Option In the absence of improper conduct by one of the parties and where the dispute is simply based on “hard bargaining, ” the mediator will generally recommend that the parties be allowed to exercise their rights to strike or lockout in support of their bargaining positions

Direction from Associate Chair Following mediator’s recommendations, and failing agreement between the parties, the Associate Chair will request submissions from the parties as to what mechanism for resolution should be directed under Sec 55 Where the decision is to direct interest arbitration, the general policy of the Board is to refer the adjudication to an outside arbitrator

Terms of an Arbitrated First Agreement Factors to consider: Attempt to replicate the Collective Agreement which the parties would have achieved on their own Fair and reasonable Should not contain innovative or breakthrough clauses, Objective criteria – similar employees doing similar work Financial state of the employer Internal equity and consistency among employees Economic and market conditions

Sec 55 Files Jan 2014 - Oct 2017 Settled by Agreement 19% 42% 8% Mediator Recommendations - 55(6)(a) Mediation/Arbitration 55(6)(b)(i) 14% 17% Arbitration - 55(6)(b)(ii) Strike/Lockout - 55(6)(b)(iii)

Best Practices The Board has held that significant weight should be given to the recommendations in the mediator’s report under Section 55 Such recommendations will be given deference by the arbitrator except where they are inconsistent with the Code, where there is a clear error of fact or new circumstances arise Appeals from the decision of the Associate Chair will be very limited

Section 55 - Process

First Agreement Areas of Discussion 11 – Requirement to Bargain in Good Faith 45 - Notice to Bargain and 4 month “freeze” 47 – Collective Bargaining 55 – First Collective Agreement 60/61 – Pre Strike/Lockout Vote and Notice 62 – Continuation of Benefits 68 – Replacement Workers 72 – Essential Services 74 – Mediation 78 – Last Offer Vote

After Finalizing a Collective Agreement 53 – Joint Consultation 54 – Adjustment Plan 86 – Appointment of an Arbitrator 87 – Settlement Officer 104 – Expedited Arbitration 105 – Consensual Mediation - Arbitration

Difference btw BC and AB British Columbia Alberta Access to - Strike Vote First - Bargained collectively in Agreement good faith Provisions - Strike or lockout notice served OR - Bargained collectively for at least 90 days Strike or Lockout Must not strike or lockout Board may terminate strike or lockout Time frame 20 days – if CA not concluded, mediator shall submit a report to the Associate Chair No strict timelines Options that differ Board may direct mediation/arbitration Board may direct further bargaining Length of contract 2 years from date of decision 18 mths no earlier than date of notice to bargain Freeze period 4 months after the board certifies the trade union as bargaining agent for the unit, or a CA is executed If 120 -day period (after notice to bargain) has not expired, the Board shall direct that the period be extended

Experience in BC Major policy decision early after new law Consider role of mediator recommendations Consider use of ‘limited issue’ mediation/arbitration Parties setting out last positions in detail Minimum 2 year contract Role of Industry Standard

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