NATIONAL COLLECTIVE BARGAINING INSTITUTE Legal Landmines in Collective

NATIONAL COLLECTIVE BARGAINING INSTITUTE Legal Landmines in Collective Bargaining January 2021

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Jay Sharun, CPHR Jay is the Founder and CEO of the National Collective Bargaining Institute, providing strategic collective bargaining services and cutting-edge labour relations training. Jay has negotiated more than 650 collective agreements in a variety of industries and is the proud recipient of CPHR BC’s 2014 Provincial Award of Excellence for his innovative contributions to labour relations. He lives in beautiful Kelowna, B. C.

Collective Bargaining is a Contact Sport Knowing the rules of the game ensures you don’t get hurt. Labour board complaints harm the Employer’s position at the table. Can always phone a friend!

Carolyn Mac. Eachern, Lawyer Carolyn Mac. Eachern is a partner with Young Anderson, where she advises clients on all areas of law related to the workplace, including collective agreement interpretation, bargaining, labour disputes, grievances, wrongful dismissal, employment standards, harassment, workers’ compensation, and employment policies. Carolyn has represented clients in matters before the courts as well as labour arbitrators, the Labour Relations Board, the Human Rights Tribunal, the Employment Standards Tribunal and the Information and Privacy Commissioner. Carolyn takes a practical and long-term approach in providing legal advice. She always tries to find solutions to legal issues that are cost-effective and avoid unnecessary litigation and conflict.

Top 5 Legal Landmines § Duty to bargain in good faith § Duty to disclose information to the Union during bargaining § No strike/lockout until have bargained central items § Requirement to meet § Communications with employees during bargaining

Duty to Bargain in Good Faith § Employers and unions have a duty to bargain in good faith § Must make reasonable efforts to conclude or renew a collective agreement § Duty is entrenched in various Labour Codes (s. 11 BC Code, s. 60 Alberta Code, s. 17 Ontario Code)

Purpose of Duty of Good Faith § “The purposes of collective bargaining legislation is to bring the parties to the bargaining table where they will present their proposals, articulate supporting arguments and search for common ground which can serve as the basis for a collective agreement. ” (Buehler Versatile Inc. ) § Prohibits conduct where object of a party is to avoid a collective agreement

Duty to Bargain in Good Faith § Need for full and rationale discussion between the parties § Duty has many aspects § Breach of one aspect does not necessarily mean a breach of all aspects § Serious breach of one aspect may result in a finding of a breach of the respective Labour Code

Duty to Bargain in Good Faith § General requirements: § Disclosure of certain bargaining data § Put forward all proposals for change before serious bargaining begins § Avoid misrepresentations § True decision makers must participate in negotiations § Certain key decisions affecting a significant number of bargaining unit employees must be disclosed § Parties must be prepared to justify their positions

Duty to Bargain in Good Faith § General Obligations: § Employer recognition of union as the bargaining agent § Parties to meet and bargain § Intent to conclude or renew a collective agreement § Make every reasonable effort to enter into a collective agreement § Engage in full, rational, informed discussion § Employer must disclose certain decisions that have significant impact on the bargaining unit § Upon request, provide to the other party information relevant to the issues involved in bargaining § Avoid deception in representations to the other party § Avoid surface bargaining

Hard Bargaining vs Bad Faith Bargaining § Hard bargaining is not a breach of the duty to bargain in good faith § Impasse not a breach of duty if party is merely using its economic position to negotiate terms that favour its legitimate interests § Taking an uncompromising position on an issue not a breach if genuinely seeking an agreement § Failure to agree to concessions to secure agreement is not, in and of itself, an unfair labour practice

Labour Board Approach § Board generally takes a “hands off” approach § Not the Board’s role to assess reasonableness of each party’s positions § Board will take a global assessment of conduct rather than focus on specific incidents § Labour Boards focus on whether conduct is an indicator of a party’s unwillingness to conclude any agreement

Breach of Duty to Bargain in Good Faith § Certain proposals in bargaining will be found to be a breach if pressed to impasse: § Illegal demands that are prohibited by the Labour Code or other legislation § Proposals that are inconsistent with scheme of the Labour Code § Excluding positions from the bargaining unit

Breach of Duty to Bargain in Good Faith § Evidence of a breach of this duty include: § Revocation of offers without reasonable excuse or explanation § Engaging in surface bargaining with no real intent to conclude a collective agreement § Sudden changes in bargaining positions without adequate explanation § Strike or lockout without having discussed the issues

Duty to Disclose Information § Duty to disclose information necessary for informed and rational discussion of the parties’ issues § Duty encourages parties to focus on the real issues § Parties are in better position evaluate the reasonableness of bargaining proposals § Purpose is to minimize potential for disputes § Scope of duty depends on the particular circumstances § Positive obligation to disclose information that will have significant impact on terms and conditions of employment (ie closure or relocation of business)

Duty to Disclose Information § Employer required to provide certain information to Union upon request, including: § Names, addresses, telephone numbers and email addresses of bargaining unit members § Benefit coverage for each bargaining unit member § Wage rates § Benefit premiums § Service start date

Bargaining Central Items § No strike or lockout vote until parties have bargained collectively § Two requirements before a strike or lockout vote: § exchange of proposals § some discussion on all central issues in dispute § Discussion requires an exchange of views § Other party must be given reasonable opportunity to respond to proposals § Purpose is to ensure that members have something of substance to vote on

Requirement to Meet § Basic requirement in bargaining is that the parties meet § Otherwise, bargaining cannot take place § Cancellation of scheduled bargaining sessions or refusal to meet without a reasonable explanation can be breach of the duty to good faith in bargaining § This duty continues during a period of strike or lockout

Communications with Employees § Employers have right to communicate statement of facts or reasonably held opinions regarding the employer’s business § However, communications cannot be coercive or intimidating or have an undue influence on employees § Need to carefully consider direct communications with employees during bargaining and labour disputes

Communications with Employees § Employers have right to: § reply to inaccurate information or other material § make factual statements about the economics of their business § communicate its views on the bargaining process § Need to ensure that statements do not cross the line into intimidation/coercion § Providing “gifts” to employees as an inducement in bargaining a breach of the duty of good faith

Case Law Duty to Bargain in Good Faith § Care Partners, [2016] OLRD No. 2283 § Buhler Versatile Inc. (Re), [2001] MLBD No. 9 § Noranda Mental Industries Ltd. (Re), [1974] BCLRBD No. 149 § WHL Management Limited Partnership, [2014] OLRD No. 3579 Duty to Disclose Information to the Union during Bargaining § Best Facilities Services Ltd. (Re), [2010] BCLRBD No. 143 § Kelowna Daily Courier (Re), [2000] BCLRBD No. 363 § Royal Roads University, [2018] BCLRBD No. 134 § Port Transport Inc. , [2011] BCLRBD No. 50 No Strike/Lockout Unit Bargained Central Items § All Tech. Transport Ltd. (c. o. b. Busters Towing) (Re), [2013] BCLRBD No. 205

Case Law Requirement to Meet § BC Rail Ltd. (Re), [1998] BCLRBD No. 487 § SGS Canada Inc. (Re), [2000] BCLRBD No. 121 § Naramata Centre Society (Re), [2014] BCLRBD No. 157 Communication with Employees § Alta. Steel Ltd. (Re), [2013] ALRBD No. 92 § Fiesta Super Market Ltd. , [2009] BCLRBD No. 84 § Kingston Whig-Standard, [2004] OLRD No. 2320 § Sysco Fine Meats Vancouver (Re), [2020] BCLRBD No. 78 § Comcare (Canada) Ltd. , [1998] OLRD No. 1215

Questions

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