EMPLOYMENT LAW CHAPTER 1: INTRODUCTION TO EMPLOYMENT LAW A. THE IMPORTANCE OF EMPLOYMENT - GENERAL ISSUES 1. per Dickson J. in Ref Re Public Service Relations Act (1987) “work is one of the most fundamental aspects in a person‟s life, providing the individual with a mans of financial supp[ort and, as importantly, a contributory role in society. A person‟s employment is an essential component of his or her sense of identity, self-worth and emotional well being. Accordingly, the conditions in which a person works are highly significant in shaping the whole compendium of psychological, emotional and physical elements of person‟s dignity and self-respect” 2. Divisions in Employment Law discussion is generally focused in three areas: the Common law; Collective bargaining regime; and statutory regulation. Historical Overview Common law) has been around for 400 to 500 years. Common law is not left behind though as 2 out of 3 workers is still governed by the Common law (very few are unionized). 1940: Collective bargaining is partly predicated on contractualism, in the same way that the Common law is. Kilkoyne argues that what we see is: ―we‘ll equalize bargaining power…then we‘ll back off‖ earliest manifestation was a fulfillment of the prophecy of private ordering starts in the 1870‘s with contemporary laws dating back to 1945 and WWII note: the law that regulates unionized workers, and non-unionized/Col workers, is remarkably similar (of course, there are differences, but on a technical level, they are very similar) 1980: Statutory Regulation: options that a policy maker has in this situation is to tinker with Collective Bargaining or to undertake some form of statutory regulation. We chose the statutory regulation approach and introduced minimum standards/conditions of employment. There is considerable evidence that the formal significance of regulation doesn‘t play out in real life. The enforcement of the provisions is quite low and there is a low level of knowledge of the provisions among employees (employees) and employers (employers) Employment Standards Act: enforcement of this act, and to some extent Human Rights legislation is virtually not there (expensive; inefficient; 2 years from complaint to hearing in the human rights sphere; any time you use ADR, and allow people to talk…it takes longer) Workers Compensation Act Canada Pension Plan the Common law and Collective Bargaining are concerned only with process, they could care less about the product. Statutory regulation is concerned with the product there is a sense in the media that Collective Bargaining has had its day and we should be moving on. This view is especially prevalent in the US. Somewhat different situation in Canada where the relative constancy suggests that CB is enduring and there are some signs of increase in the numbers of unionized workers. up to 1945 there were essentially only private sector unions. In the 1950‘s the private sector #‘s started to decline but in the 1970’s the jump in public sector unions offset this decrease. Recently the increases have been in the private sector. But you must be careful not to overstate this - the biggest area of interest is the food service industry. Is this Qualitative Progression? From the Col to Collective Bargaining, to Statutory Regulation….to de-Regulation…. 7/10 workers in Canada are subject to Common law rules (30% are unionized); so the sense that the Common law is a relic, is wrong as it remains the operative regime for the vast majority of workers today. (in 1940, 36% of Canadian workers were unionized, now it is 32.1%) demise of Collective Bargaining???? little or no evidence of such a demise in Canada in the U.S., from 1975-1990, the level of unionization dropped by ½ and is now at about 12% (increase in global competition, legislative initiatives, structural shifts in the economy (from primary manufacturing to the service sector: 6-7/10 new jobs are going to be in the service sector), changes in employment practices, etc. all contribute to this decline in unionization in Canada, unionization made inroads into the public sector in far greater ways than in the U.S. (unions in the public sector were seen as unconstitutional) unions in Canada seem to be having slightly more success in organizing traditionally unorganized sectors (service sectors for example) 3. Mandatory Retirement? Arguments for: room for new workers - younger, they will work for less; on a consumption theory we assume that they will spend more. There would be social instability with large cohort of young unemployed. The number of people over 65 is going to increase - now they are 14%, 2000 - 18%, 2020 - 22%. new blood/new ideas - increase productivity, safety concerns with older workers, greater efficiency. fair scheme to older workers - employers don‘t monitor or test them just them hang out until 65; these workers deserve a break for the remaining time of their lives. Work is a burden supply of jobs is declining and the quality of remaining jobs is declining; part-time is replacing full-time. Types of unemployment: (i) frictional - don‘t have a job but just haven‘t heard of position, lag between loss of employment and filling vacant position. This type is not a major concern. (ii) structural - no vacancies or jobs with no one to fill them. Arguments Against: When you look at the studies the productivity argument runs into problems. Aging begins between 18 and 20 - that is when functions first start to decline. The angle of decline in functions starts to increase at 30 and then the rate of decline remains constant. No real magic to 65, it is completely arbitrary. The study at a Volvo shows that those age 57-66 have the highest production levels. When looking at sick leave those 55-64 had the same or lower rates than other age groups. There is an inverse correlation when you look at age in terms of accidents, and absenteeism. Truck drivers - the lowest accident rate is among older drivers. based on this you could argue that we need to invest in human capital (training) of these efficient older workers. Employers would argue that this is not a good idea - you would have to spend $ retooling them and that is inefficient when you consider that your return on your educational investment is not a high as it would be with younger workers. Ways to combat this perceived lack of return: make staying on a contractual requirement for receiving training; pay workers less that productivity and then at some point in mid-career pay them more than productivity - a smart employer would dump them at this point! normative arguments based on liberty. Need to remember how Important work is for human psyche and self- esteem. In 1985 the highest suicide cohort was 58-68 and a major factor was severance from the workplace and the consequent loss of friends and the feeling of being an unproductive member of society. However note that in 1993 the highest suicide rate was recorded in the 18-25 yr old cohort. productivity/efficiency arguments are really an interference in the functioning of the market. The market can control when people will exit the workforce a huge group of unemployed 65 yr olds will increase societal costs. Note the figures noted in the ‗pro‘ arguments which show that this group will increase in the coming years a US example - Ronald Reagan increased the mandatory retirement age for federal public servants to 70. The reasons for this were to reduce expenditures on old age security, liberty args, and the fact that people need more time to make money this type of proposal would effect women greatly as they are rarely in unionized employment and they are over represented in part-time work B. CONSTITUTIONAL JURISDICTION 1. Division of Powers labour relations are not specifically mentioned in the constitution. Prior to 1925 they were thought to be a federal matter. TEC v. Snider (1925 PC) held that federal legislation in this area was an infringement of 92(13) (property and civil rights). The Labour Conventions case (1937 PC) made it clear that the federal treaty making power could not be used to support the validity of fed stats establishing minimum wage and hours of work to comply with obligations under the ILO. now it is clear that 90% of all employment relationships fall under provincial control note: Worker’s Compensation is provincial and there is no federal presence in the field) the other 10% are under the federal sector and these include: (i)federal works and undertakings excluded from the prov juris under s.92(10) (a) which includes interprovincial (or international) transportation or communication works and undertakings such as: -interprovincial or international railways -radio and television operators -interprovincial telephone companies (Commission du Salaire Minimum v. Bell Telephone Co.  SCC: Quebec‘s minimum wage law could not apply to the employees of Bell since, it as an interprovincial telecommunications undertaking, fell within the legislative authority of Parliament.) -interprovincial bus and trucking operators (ii)works declared to be for the general advantage of Canada under 92(10) (c) such as: -grain elevators and the grain handling system -uranium industry (iii)enterprises which fall within s. 91 such as: -postal service -military -navigation and shipping (stevedores) -banking (iv)federal public servants (v)first nations [91(24)] Note that the federal jurisdiction is exclusive, not concurrent, so that provincial laws regulating employment cannot apply even where there is an unoccupied field. Divided jurisdiction means that in order to know what statutory provisions apply to a given employment relationship, it must first be determined whether that relationship falls within federal or provincial jurisdiction Some argue that the diversity in Canadian labour legislation is good because it allows (i) experimentation; (ii) allows some provinces to set the pace; (iii) is responsive to diverse local conditions. Critics say that it is (i) inefficient and confusing; and (ii) forces the labour movement to scatter its political effort. 2. Section 96 effect of this section is to restrict the extent to which provinces can confer judicial powers of certain kinds on admin tribunals labour boards have been able to withstand the challenge and their specialized expertise in the realm of labour relations has been accepted by the courts. Tomko v. LRB NS (1975 SCC) settled the issue and challenges are rare; s. 96 did not invalidate legislation which empowered the NS LRB to issue cease and desist orders to stop illegal strikes even though such orders are very similar to injunctions and the power to issue injunctions is reserved to superior court judges under s. 96. 3. The Charter prior to 1985 there was lots of literature suggestion that the Charter would have a revolutionary impact; this didn‘t turn out to be correct. The trend has been to keep the Charter and the judiciary out of the labour and employment field - per Weiler. not much impact on CB and what there has been is adverse to labour. The labour trilogy [Ref re: PS Emplyee Relns Act; Sask v. RWDSU; and PSAC] provided statements from the SCC that the s. 2(d) freedom of association does not included any right on the part of the unions to strike. In PIPS v. Commissioner of the NWT the SCC held that 2(d) didn‘t include the right to bargain Collectively. Lavigne included the argument that freedom of association includes the right not to associate. Although the SCC upheld the compulsory deduction of dues the three sets of reasons from the majority appear to support the proposition that 2(d) includes the right not to associate. s. 2(b) freedom of expression. Dolphin Delivery established that picketing is protected under 2(b) but the determination that the Charter only applies to legislation or to government action and not to the Common law seriously limits the Charters application in the employment context. The court also concluded that if the Charter did apply the restrictions on secondary picketing would have been a reasonable limit. The BC LRB has recently determined that the picketing provisions had to be ‗read down‘ so as not to encompass certain kinds of consumer boycott activities (such as leafleting) against secondary employers in some contexts. [Kmart] They did this because of the Charter‘s guarantee of freedom of expression. Basically the Charter has been a non-starter. CHAPTER 2: THE COMMON LAW AND THE EMPLOYMENT CONTRACT A. THE CONTRACTUAL FOUNDATION OF EMPLOYMENT LAW 1. Master/Servant The Labour law of Great Britain shares with that of the other nations in our orbit of civilization two essential features: it is based on the contractual foundation of the obligation to work and of the obligation to pay wages, and it is at the same time permeated by a tendency to formula e and to enforce an ever-growing number of imperative norms for the protection of the worker, norms which the parties to the contract cannot validly stet aside to the detriment of the economically weaker party. had to do with ‗status‘; you were a master or servant simply by virtue of occupying a position - not b/c of the voluntary agreement by the parties; also b/c it was a ‗status‘ there was a clear hierarchy the law attributed to you a host of rights and obligations/responsibilities no thought/concept of contracting out of these obligations highly paternalistic servant‘s rights were very extensive; masters owed obligations well beyond what we would put on employers today. For example: if the servant suffered an injury which prevented him/her from working the employer had to support them for life 2. Transition to Contract emergence of wage labour; an agreement entered into by free and equal parties in which the employer agrees to pay remuneration in exchange for the labour of the employee rights and responsibilities were in K not b/c of status; they could be contracted out of this is where we are today 3. ‗Concerns‘ with Contract Normative: concern that legal principles developing in commercial context are inappropriate when applied to an employment relationship (significance of employment—psychology, health..) treating labour as a commodity Legitimacy one of the concerns is a normative one. K requires two individuals who were free and equal contractual parties; do we have the contractual tools to deal with this inequality (unconscionability undue influence). Would we be using these mechanisms too frequently? If so, would the mechanisms be brought into question? Functional - when you look at the body of pure K law it doesn‘t work in the employment relationship. This particular relationship is oral, open-ended, many changes in terms of rights and responsibilities, generally assumed to be long term. Unforeseen contingencies which arise in this context make K difficult to use. Generally what happened was that they infused the employment K with the traditional law of master and servant, thereby granting them a legal basis for the prerogative they demanded - i.e. the ability to settle the everyday issues that arise in such a relationship. Sec. of State for Emply v. Assoc. Society of Locomotive Engineers and Fireman (No.2) 1972 Eng. 2-3 Facts: Note that this is just illustrative and is not Canadian law. The union took three approaches: (i) no overtime - overtime was voluntary; (ii) no working on Sundays (Sunday work was also voluntary); and (iii) a work to rule campaign which is essentially a literal interpretation of every rule/order and will do nothing else - basically withdraws the employees discretion. There was a statute which said that the Seceratary of State could order them back to work if there had been a breach of the contract. Court said that (i) and (ii) did not come close to breach Issue: Did work to rule breach K? Reasons: The statute allowed the Secretary of State to legislate employees back to work where there had been a breach of the agreement. On a strict application, in this case, there was no strict breach, in fact, such action was anticipated. Rather, the court found an implied term in the contract that employees owed a duty to serve faithfully with a view towards enhancing the commercial interests for which they are employed. The court looked to the rules of master and servant and implied terms it derived from those rules. They implied the obligation of fidelity, which is the duty to serve faithfully with a view to promoting the employer commercial interests. The object of the instruction to work to rule was to frustrate the very commercial object for which the contracts of employment were made. Comment: What is missing in this implied obligation? You would think that such an obligation would have to be reciprocal - it isn‘t according to the Eng court. Almost all implied obligations flow from the employee to the employer. Employer has to pay, give reasonable notice, provide reasonably safe work place. Employee owes loyalty, fidelity and good faith - these get expanded to cover nearly everything. the rejection of traditional K principles is seen as an essential requirement for the promotion of business efficacy inequality of bargaining power between the employer and the individual employee makes it difficult to describe the agreements as freely bargained promises and to do so would obscure the high probability that the employee felt virtually coerced by the employer to settle for virtually whatever he could get. two types of legislative responses to this inequality: (i) legislation to foster CB - the Labour Relations Act; and (ii) substantive response of providing employee with statutory rights which many would not have been able to secure with their individual bargaining power. IMPLIED OBLIGATIONS most arise out of the relationship of master and servant. No new ones in 50 years. CL obligations of EMPLOYERS 1. pay 2. reasonably safe environment (largely overtaken by occupations health and safety) 3. reasonable notice when firing employee without just cause CL obligations of EMPLOYEES 1. attendance 2. obedience 3. loyalty and fidelity 4. honesty 5. promotion of commercial interests FORMATION Principles of contract apply (capacity, offer, acceptance and consideration). Subject of some regulatory alteration (Infant‟s Act, Employment Standards Act) B. The Employment Relationship Distinguished common law duties and obligations may vary depending on whether or not an employment relationship exists between two parties as opposed to some other kinds of relationship Employee vs. Independent Contractor (IC) - the IC is essentially self-employed. Employee works under a ‗contract of service’ Independent Contractor is under a ‗contract for service’. Which statutory regime applies makes this distinction important. Money is also a crucial factor. Rights of third parties are affected by the distinction. Historically the employer was vicariously liable for the torts of his/her employees; not so with IC. This may have changed now. 3. The Common law Tests Economic Reality Test—whose business is it? For whose benefit is the business being done? Statutory Purpose Test—does the legislation relate to this relationship or not. Would the purpose of the legislation intend to capture this type of relationship? Wiebe Door Services Ltd. v. M.N.R.  Fed.CA 2-6 Facts installation and repair of doors. 14 workers: 2 are admitted as employees, the other 12 could not refuse work and did not own their trucks. Held: what must always remain of the essence is the search for the total relationship of the parties, many factors must be considered: Market Investigations, Ltd. v. Minister of Social Security,  QB: ―Is the person who has engaged himself to perform these services performing them as a person in business on his own account? ― Case law has established a series of tests to determine whether a contract is one of service or for the provision of services; none of these tests should be used in isolation (b) The degree or absence of control, exercised by the alleged employer Regina v. Walker (1858) Eng, Bramwell: ―It seems to me that he difference between the relations of master and servant and of principal and agent is this:-- A principal has the right to direct what he agent has to do; but a master has not only that right, but also the right to say how it is to be done‖. Hopital Notre-Dame de l‟Esperance and Teoret v. Laurent  SCC: ―the essential criterion of the employer-employee relations is the right to give orders and instructions to the employee regarding the manner in which to carry out his work‖ Professor Atiyah: ―the control test as formulated by Bramwell, B wears an air of deceptive simplicity, which…tends to wear thin on further examination‖ Montreal v. Montreal Locomotive c Works ltd.  PC; Lord Wright : ―a fourfold test would be more appropriate, a complex involving (1) control; (2) ownership of tools; (3) chance of profit; and (4) risk of loss.‖ (c) ownership of tools (d) chance of profit and risks of loss (e) integration of the alleged employee’s work into the alleged employer’s business Stevenson Jordan et al. v. MacDonald and Evans  Lord Denning‘s Organization Test: “One feature which seems to run through the instances is that, under a contract of service, a man is employed as part of the business and his work is done as an integral part of the business: whereas, under a contract for services his work, although done for the business, is not integrated into it but is only accessory to it‖ approved by the SCC in Co-Operators Ins. Assoc. v. Kearney, : ― Was the alleged servant part of his employer‘s organization was his work subject to co- rdinational control as to ―where‖ and ―when‖ rather than to ―how‖? Re Becker Milk Co. Ltd. (1973) (Emp.Stand.Determination Ontario) 2-13 starting point: s. 1 definition of employee and employer in the Employment Standards Act next step: determine the factors indicating whether a person supplying work or services is doing so as an independent businessman, not as an employee: Four Fold Test [Montreal Locomotive Works Test]: examines four factors – (1) control; (2) ownership of tools; (3) chance of profit; and, (4) risk of loss. Directed to determining whether person is IC or employee. None of factors alone is conclusive. Risk of loss/chance of profit determine whether person is in a entrepreneurial position rather than employment. Test not frequently used. Control Test Lambert v. Blanchette factors that point to control: (2) degree of supervision (3) the manner of payment (proportional to work done, rather than by the hour? This may indicate an independent contractor) (4) subcontrators? if the person may employ others to perform the work undertaken may also indicate that eh person undertaking the work is doing so as an independent businessman. (5) Termination of services? Employees can be terminated for cause, whereas, IC‘s are only terminated where the work undertaken is being performed unsatisfactorily. Ownership of Tools Chance of Profit and Risk of Loss are complementary MUST DETERMINE WHETHER THE COMBINED WEIGHT OF THE FACTS PRESENT LEADS ONE TO THE CONCLUDIOSN THAT A PERSON IS AN INDEPENDENT BUSINESSMAN RATHER THAN AN EMPLOYEE Application of the Common Law Test (1) chance of profit and risk of loss: No. the persons were not in the business of buying and reselling goods; all stock remained the property of the company and any surplus in inventory accrued to the benefit of the company and even though there was coverage for break-ins (shrinkage), this ltd. accountability for loss of inventory does not appear to provide the element of risk of loss that was contemplated by Lord Wright, since it cannot be said that the store managers were engaged in any real entrepreneurial exercises. Further, the risk of losing the performance bond for default, or lack of notice in quitting is really just an example of the company‘scontrol. (2) Ownership of tools? No. company owns the place of business, the fixtures, and all merchandise. The retail sales tax license of each location is taken out in the name of the company and the company holds the insurance policy. Even the shirts and aprons worn by the store managers are owned by the company. (3) Control over the managers? Yes! This is where the managers become employees. Hours of work? hours of store opening are determined by the company managers must devote their whole time to duties as store manager managers are prohibited from engaging in any other business without prior consent Hiring of assistants? Wide discretion in hiring, but company supervisors would often provide advice to store managers on the suitability of certain persons as store help Manager was required to fill out a store help registration form for each person employed Company was responsible for paying store help Company provided uniforms to store help Store help are employees of the company, not the manager Discretion in ordering inventory? Manager was responsible in keeping the store fully stocked, but they could only order from certain suppliers designated by the company Zero control over cigarettes. Skilled labourer? Company trained the managers Other factors: Store managers are made accountable for both cash and inventory Frequent visits by company personnel. Company has broad power to terminate the manager All these factors indicate that the company is not only concerned with achieving a particular result, but also with the manner in which that result is achieved. 3. The Importance of Context at common law, the need to determine who is an employee has most often arisen in cases involving the vicarious liability of employers to third parties for the torts committed by their employees in the course of employment. It has been suggested that the tests for what constitutes employment in such cases were originally adopted and are applied by judges with an eye towards ensuring that tort liability is placed on those who derive a financial benefit from the undertaking in relation to which the injury occurred and who are also more likely to be able to provide compensation to an injured third party. Look at the statute for any definitions of ―employment‖ ―employee‖ or ―employer‖ Statutory purpose (construe the statute purposefully to ensure that their remedial benefits got to all those whom the legislature can be presumed to have had within its contemplation at the time of enactment; this is particularly relevant with respect to atypical workers (piece workers, self-employed consultants…) 4. Avoidance of Employment Relationship in last 15-20yrs this has become more popular; more so in the US Nation Air case - all IC - was amazing this takes many forms including ‗out-sourcing‘ and ‗home-work‘ computer technology will impact this franchise agreement was the start of this whole area and convenience stores led the way. This is the method used by entrepreneurs. Becker taught lawyers how to structure agreements better self-employment—entrepreneurs contract to proved service as independent contractors C. WRONGFUL DISMISSAL AND JOB SECURITY AT COL 1. The Basic Elements of the Action for Wrongful Dismissal 3 circumstances for CD: (1) job is abolished; (2) diminution in status/responsibility; (3) diminution in compensation Keep in mind: (i) subject to agreement to the contrary, employment relationship is usually of indefinite term; and (ii) employer can terminate at anytime (a)if cause - summary dismissal (no reasonable notice - RN) (b)if no cause - RN or pay in lieu of RN [Machtinger v. HOJ Industries] definite/fixed term contract - employee is engaged for a limited term, may be temporal or task or project specific. When the K expires/event happens the relationship ends and there is no question of RN. What happens if you are halfway thru the fixed term (eg. 12month term)? If cause you are not entitled to notice; if no cause you get RN or pay in lieu. Damages would be fixed to 6 mo period (duration of K) subject to duty to mitigate - conflicting authority on this point. Important to note that lack of work or money doesn‘t allow employer out. indefinite period - ie where the K is silent about termination. The courts will imply a term that RN or pay in lieu prior to dismissal is required unless there is cause for the dismissal. In typical wrongful dismissal action the employee seeks damages on ground that he was fired w/o notice required under K and w/o having provided cause. The damages relate to the loss of the notice period, subject to employee duty to mitigate. 2. Dismissal: Express and Constructive a) generally: Both employee and employer are left with little doubt that express dismissal has happened. In such a case the only questions re: liability for damage are whether or not there was cause; or if not whether there was RN or pay in lieu prior to dismissal. b) Constructive Dismissal: emanates from the contract doctrine. Employee can bring wrongful dismissal action where the employer denies that a dismissal occurred and wished to retain the services of the employee. Some breaches are so severe as to be a repudiation of the K. Unilateral change in contractual terms by employer which court considers to be Important enough to treat as repudiation. Can involve change in $. Change in status, job duties/responsibility are more difficult to deal with - especially if remuneration remains the same. Best advice to an employer to avoid CD is to always give RN UNILATERAL CHANGE IN ESSENTIAL CONTRACTUAL TERMS Baker v. Burns Foods 1977 MBCA Facts: Worked there for 40 some years. Employer does away with position. Offered alternative jobs - neither are comparable in terms of $ or status. (He was terminated but this is ignored and seen as being moved out of elim job and offered two other) Change in $ and status/responsibility Decision: Court said that this amounted to repudiation of a fundamental term of the K and constituted a constructive dismissal. Damages based on 12 mo RN Reasons/Analysis: Redundancy does not justify dismissal - ie it is not cause; still have to give notice Any reduction in direct compensation w/o RN would be seen as constructive dismissal (CD). Although, a deminimus argument can be made: relatively minor alterations in the compensation package, may not constitute CD (changes in the benefit package, for example) Withdrawal of benefits is not as easy to deal with but once quantified court will likely see it as CD. Change in status is more difficult. Court cites Batt on the law of master and servant which says that the servant is not required to take any kind of employment so it is no answer for the master to prove that employment of a different kind or in a lower grade, even at the same or increased salary was open to him if he chose to take it. Also cites Labatt on the law of master and servant who says that when the servant is offered the alternative of leaving or of submitting to an essential alteration in the conditions of service, the servant is justified in abandoning his work and suing on ground of specific breach of duty in altering conditions. Comment: Foundation of these types of cases is that the employer has done something which the terms of the employment K, express or implied, don‘t allow him to do and that it is so serious as to amount to a repudiation or fundamental breach. any changes in wages, the court will find CD; changes in fringe benefits???? Otto 1993 Alta.CA employer stops making contributions to the employee‘s RRSP and reduces the vacation plan in total, the overall reduction was 6-8% (on the entire package) note: for every $1 received, there are 26-28 cents of fringe benefits (pension plan, health plan, sick benefits…) held: (1) so long as the salary is maintained, reductions of the fringe benefits don‘t constitute CD; (2) employees accept reductions during ―bad times‖ because they know that they will benefit during ―good times‖ (yeah right, imagine a CD suit arising when an employee does not receive a raise during ―good times‖…) relatively minor is going to be contextually determined; there must be flexibility Black 1995 Ont.H.C. reduced employees salary from $95,000.00 to $85,000.00 (more than 10%) held little reasons; no CD Kilkoyne thinks that this case is suspect in terms of precedential value. of Baker, Otto, and Black, Baker is the most important CHANGE IN STATUS AND RESPONSIBILITY (note: Longman confined O‟Grady to its facts) O‟Grady v. ICBC 1975 BCSC Facts: O‘G was a Victoria lawyer who was hired as general counsel for ICBC when it was first set up. He was to be responsible for all legal affairs for that org. Resp for all lit; all admin/legal requirements. In the original hierarchy O‘G was on the third rung. Less than 12 months later there was a major reorganization. Reduced the numbers from 10 to 6 and all were called V-P, one is VP legal. O‘G ends up on tier below - he was offered senior counsel responsible for all ―autoplan‖ litigation. No reduction in $ just change in status. Issue: Was that CD? YES Reasons: Status was not technically the basis for the decision. Unilateral change by employer - position he k for was general counsel and the employer repudiated. Essentially the employer abolished that position. The new position was clearly subordinate to the old - change in who he reported to; supervisory role was curbed. New position was entirely different as he was relegated to the role of specialist, he was no longer general counsel. Why did court talk about status? Mitigation - anytime dismissed there is a general obligation to mitigate - have to take reasonable efforts to find alternative employment. ICBC arg that they offered him a job with no reduction in $ so he was under an obligation to accept the job for a short time frame during which he would otherwise be seeking reas notice for, therefore he is not entitled to damages. Status discussion arises in the context of meaning of ‗reasonable employment’. Court says that it would be unreasonable employment to take lower job - it would be humiliating to take this job - it was reasonable for him to refuse job. Comment: O‘G is a lawyer - humiliation and embarrassment was reasonably easy for them to find b/c of self-identification by the court. Note that he got 9 months notice - this is at the high end when you consider that he had only been working there for 1 year. Seems that they considered that he had wound up his private practice to take this job and that he needed time to reestablish it. Also seemed to take into account that he was 54. AFTER O‟GRADY, CD CLAIMS SKYROCKETED (in all other provinces but B.C., there has been a re-reading of O‟Grady) Longman v. FBOARDB (1982) BCSC Facts: Senior bank employee. Term of K that he could get transferred to another branch. He is trans from BC to Montreal. For personal reasons he wanted to come back. Goes to employer and requests transfer on # of occasions. Employer almost creates him a new position - there was a corp reorganization and they ‗find‘ position for him. They transfer him at the same $ but diminution in status. Issue: Was this CD? NO Reasons: Court said some things which lead to a mix up in the law. Court invents a distinction between demotion and lateral transfer. Says that the right of transfer is likely an express or implied term of K. Transfer here has lower status - is it a fundamental breach? No express term that there will be no transfer with loss of status or prestige. Should they imply one? Court says that the parties never would have agreed to one. The employer had the right to transfer and as incident of that right had the right to trans with loss of status/prestige. Comment: this case is easy to live with if you just say that the loss wasn‘t severe enough to be a fundamental breach. This case confined O’Grady to its facts. The position was abolished and entirely different position was offered to the plaintiff. The company had committed a fundamental breach of the K by removing the substratum of the K - the only position the plaintiff had agreed to accept. Reber v. Lloyds Bank Int. Can. 1985 BCCA not the law, Baker should be relied on Facts: R was a fast riser, transferred to Vanc to expand the banks interest there. He didn‘t do well there and was transferred back to NY. Same $ but substantial loss of resp and great loss of prestige. Issue: Was this a CD? Decision: TJ said it was clearly CD but the CA overturned. Reasons: Probably the transfer back to NY wasn‘t a promotion but it wasn‘t a demotion. We see it as a lateral transfer - shunted from the fast track to the slow track. Is transfer with diminution in prestige a fundamental breach? Court looked at the K and couldn‘t find provision which said no transfer with a loss of prestige. Court says that this is not a severe enough diminution. Comment: Kil doesn‘t think that this is law now - in real life he would n‘t rely on it. Likely significant that he was still making tons of cash and during the mid ‗80‘s the court wouldn‘t have had much sympathy. The mid 80‘s was the start of bad economic times and you were starting to see corp restructuring and this doctrine facilitated the restructuring. Kil thinks that the law on status and responsibility is Baker v. Burns - Reber is not being invoked. Cayen v. Woodwards Stores Ltd. (1993) BCCA Facts: C had 15 years seniority. She served from 67 to 87 with a 5 year hiatus in service. There was a steady progression up the corp ladder. She got poor appraisals when she was in the Corp division. In 1987 she was transferred back to the Operations Div to be zone manager in the Park Royal store. No change in $ but clearly a reduction in status/responsibility. Reasons: TJ - found CD, fairly bizzare terms he uses. He says that she got job worked hard and gets promotions. Therefore there is an implied term of no demotions. CA - applies Longman and Reber and notes distinction between demotion and lateral transfer. Test for demotion is an objective not subjective. There are advantages and disadvantages with every job Concludes that this was a lateral transfer to important position and is not a breach of K let alone a fundamental breach (O‟Grady???) clear on the facts that Woodward did not intend to terminate her employment. Comment: (1) but, the very essence of CD is that the employer did not intend to terminate, rather, in the case of CD, the employer makes a unilateral alteration to the terms of the contract (which essentially forces the person to quit)) (2) Can‘t make an O‟Grady arg b/c there the position was actually abolished. Here the position of Corporate Buyer is still there. Couldn‘t you say that she K for Corporate Buyer but now in Zone Manager and that by so doing the employer has essentially rewritten the K? Whether you use O‟Grady or change in responsibility what difference does it make? If you use O‟Grady you are assuming that there was a series of new K as she moved up the ladder. The counter to this is to arg that there was a K for employment in whatever form it took and the parties simply revised the terms as time went on. must characterize the contract as 1 contract for a succession of positions (3) what underlies Cayen? (as this represents a huge retreat from CD, and the claims for CD were dramatically reduced) Likely the court is saying that this was not a serious enough drop down the ladder; ―you still got a job, at the same wage, and pretty serious as far as responsibility and as such, quit your whining‖ given changes in the economy, people are going to have to accept that their positions may change, and it seems as though the court wants to facilitate the employers ability to make these kinds of changes (4) There is no question, that in any other jurisdiction in Canada, this would have been CD RECAP: Constructive Dismissal Legal Test: unilateral alteration by employer Circumstances: 1. Position abolished 2. Decline in $ is especially significant 3. Status/Responsibility/Prestige objective test some diminution ok lateral transf - likely more employer flexibility; right can be express of implied; can reduce the status/prestige to a greater degree then would otherwise be permissible c) Constructive Dismissal and Mitigation Intro - O‟Grady and Farquhar O‟Grady shows that historically you didn‘t have to take lesser job just to mitigate Farquhar - opened the door a little more; in terms of CD, as part of mitigation should take job. In many cases frayed relations will prevent the person from taking the new position. Therefore if no frayed relations there may be greater likelihood that a court will say you failed to mitigate so no damages for CD. Cayen Criteria: Acceptance ‗normally‘ UNLESS (outs for the employee) 1. Frayed relations - affirmed Farquhar 2. Menial position - reasonable employment - this means roughly similar prestige/status/responsibility. Notes that some of fellow employees would see it as a demotion but most of the same employees would recognize that there will be lateral transfer from time to time. 3. Seriously reduced salary Kil doesn‘t see that SC is following this. Caution when a client comes to you and wants to know if they should take the job. As a risk averse person you would say they should. This may not arise all that often b/c it is rare for the employer to want people staying around. Note that onus is on the employer to show that the employee was unreasonable in not taking the lesser position while looking for alternative employment. Important to note that the court anticipated that some employers would argue that by taking the ‗lesser‘ position the employee had ‗waived‘ the right to argue CD. The court says that employers can‘t have it both way, that is mitigation and waiver, and it will be rare indeed when an employer will succeed on a plea of waiver after an employee has mitigated his or her damages after accepting a new position. Court notes that it would be different if the employee continues in the new position after the expiration of a reasonable period roughly equivalent to what the law would impose by way of reasonable notice. 3. Cause of Dismissal a) Generally requirement for RN is displaced if there is ‗cause‘ for the dismissal. Where there is cause the employer can treat the K as having been repudiated by the employee and dismiss him summarily w/o notice note that cause always focuses on conduct which flows from the employee Baker v. Burns Foods made it clear that economic circumstances which force the employer to elimiate jobs do not constitute cause at Col and does not release employer from having to provide RN. Three basic categories of employee duties: 1. duty to obey; 2. the duty to use reasonable skill and care; and 3. the duty of good faith and fidelity Regina v. Arthurs, Ex parte Port Arthur Shipbuilding Co. (1967) ONCA provides a ‗shopping list‘ of acts which constitute cause: serious misconduct; habitual neglect of duty incompetence; conduct incompatible with duties, or prejudicial to employers business; or wilful disobedience to employers orders in a matter of substance. b) Disobedience as Cause -this is statistically the #1 ground (i) order must be reasonble and proper: 3 characteristics: lawful; not endanger health or safety of individual employee, other workers, members of the public - basically anyone close by. w/in the scope of employment. (ii) wilful disobedience - employee had to know what order was and make a conscious decision not to comply (iii) did employee disobedience constitute a breach of an essential term of the contract so as to allow the employer to consider it as a repudiation? Single incident of disobedience may suffice. Court will not accept a single trivial disobedience and the trick they use to get out of it is the ‗wilful‘ requirement - it gives them the fudge factor. (iv) The disobedience need not be of a grave and serious character. Stein v. BC (Housing Management Commission) (1992) BCCA Facts: Adds gloss to the above. Employer is responsible for allocating public housing to needy applicants. They wanted to prove that it was fair so they instituted a point system. S is director resp for allocating and he is understaffed and doesn‘t implement the new system. Told to implement and still doesn‘t. Analysis: S‘s lawyer tried to argue that you can‘t prove anyone got public housing who didn‘t deserve it (this is really irrelevant and it is surprising how much time the court spent on it). Court says that it is not for the court to comment on the wisdom of the orders when the question is obedience or disobedience to lawful orders. The lawyer was likely trying to move the law to recognize new management techniques. Court goes through the above criteria: was there a reasonable and proper order that the plaintiff was to obey? - YES wilful disobedience? - YES adds a new criteria - devaluation/waiver of order: did the employer act as if the order was not Important; in other words did the employer waive an Important order - all orders are assumed to be Important but it is possible that the employer may have indicated that it didn‘t consider this one Important - in such a case you can‘t fire an employee for not obeying an order the employer didn‘t value. However, the court notes that a mere failure to follow up and check on implementation is not sufficient to constitute a waiver. Decision: the court concludes that there was no waiver and that S‘s failure to do that which was required of him was inconsistent with the continuation of his contract of employment. Comment: Kil hasn’t found another case where the waiver argument was used. devaluation/waiver by employer - onus on employee to show context - illustration - at work and get call that child is ill. Two responses (a) leave and go get kid; (b) ask permission, refused and leave anyway. Kil thinks that court would distinguish between them. In either case the court would see that there was an order to stay (express or implied). On a strict contractual analysis both are breach as employer is losing the benefit of the bargain. Court would likely treat (b) as more culpable (not necessarily in ill child situation b/c of social utility consideration; (b) is clearly wilful, deliberate flouting of employer auth. Basically this is an attempe to preserve the employer authority in a general sense - obed is Important and more Important is ‗blind‘ obedience. determining factors: manner in which disobedience is expressed; presence of witnesses especially other employees; presence or absence of public apology after disobedience. management philosophy - any rules can be set by employer and it is not for the employees to question the wisdom of orders. The employer is boss period. Per Southin in Stein: ‗I begin with the proposition that an employer has the right to determine how his business shall be conducted....it is an essential term of every employment contract that, subject to the limitations I have expressed [reasonable and proper criteria above], the employee must obey the orders given to him‘ Underlying this hierarchical view of employer/employee relationship is productivity, profitability and efficiency. Impressive how well this hiearchy has hung on despite the managemt philosophies which have ousted this view in reality. (c) Incompetence as Cause (i) mere incompetence is not enough for summary dismissal (ii) must be serious/gross incapacity (iii) cumulative incidents of incompetence ok but cannot be trivial (iv) warning and opportunity to correct is likely needed. Clearly are cases where employee is grossly incompetent and court won‘t say there had to be a warning Stewart v. Intercity Packers Ltd. (1988) BCSC Facts: S was hired in 1985 by 1987 his job was in jeopardy. Given warning 2 mo later and 1 mo later he is summarily dismissed. Analysis: In hiring every employee is taken to some extent for better or worse. Threshold is incompetence but it must be serious or gross incompetence b/c in law it must amount to a repudiation of the K by the employee. The onus is on the employer to establish gross incompetence. They failed to do so here. The plaintiff proved to be an inadequate salesman for the def, the plaintiff admitted this. But the def didn‘t prove that the lack of success was caused by incompetence. Employee here did his best, he was not incompetence he was just unsuitable for the defendant’s purposes. No cause, therefore should have been notice and the court awarded damages in the amount of 3 months notice. Comment: This does provide the employee with some legal rights. In this case Kil sees it as a good employer who gave the warning etc but the court still required RN - why? What is at stake here is notice or not. Intercity should have given notice - responsible for the mistake you hired an incompetent employee. What could/should Intercity have done? probationary period - question whether it would have been long enough to see incompetence and how would it help for someone who was promoted? could have said that the achievement of sales goal is a part of the K and if you can‘t reach it we bilaterally agree that this will be grnds for summary dismissal. (d) Conflict of Interest as Cause Laverty v. Cooper Plating Inc. (1987) OnDc Facts: T1 L & J are cohabitees; C is personal friend of both of them T2 L hired by C to work at CP Ltd. She is a sales rep and works her way up. She is ultimately responsible for bidding on projects. She is a key employee. T3 J sets up bus - in competition with CP Ltd. (not entirely true on the facts as J is smaller type of plating but is some overlap) Analysis: Potential COI is enough - need not prove actual. Actual prejudice to the employer need not be proved. Potential harm is enough. Court discusses the Boisvert case - this case involved a bank clerk who lived with a bank robber. She knew he was a bank robber as he was imprisoned for it shortly after they were cohabitating. 2 robberies occurred at her branch and the police broke into house and found $, guns and arrested 5 suspects. Court held that the employer was justified in dismissing although there was no evidence that she knew in advance of the robberies against her own bank. Held that B‘s use of the joint residents as a centre of operations indicated that he was making little attempt to keep her uninvolved. Her cohabitation placed her in a situation of incompatibility with her duties to her employer. She was a key employee and had direct knowledge of her bank‘s security arrangements and indirect knowledge of those at other banks. In such a close relationship as she had with B she may have inadvertently let something slip. no evidence of discloure by L to J of confidential order and the court found that she had never disclosed anything BUT She placed herself in COI, she prevented herself from performing her duties faithfully. Her knowledge of the def bus operations and her active participation in her sales manager responsibility, would make it incompatible for her continued relationship with J and with the knowledge of J‘s competing activity. Dismissal was justified. Thus marriage, or cohabitation with a particular person can, in some fact situations, create a cause for dismissal - depends on a close analysis of the whole fact situation esp nature and requirements of particular employment. Comment: What should she have done? Dumped J; maybe at T 3 plus one minute she should have told C what was going on. At time of shared premises there was no competition, it arose after. It was b/c of the friendship that C let J use the extra space. In 1985 there had been a betrayal of the friendship - overlap in potential mkt share. C was asked how he would have responded if he had been informed - he said that he would have fired her but wouldn‘t felt so bad about it. L could have filed a complaint under the s. 8 which states that there can be no discrimination by employer based on ‘marital status’. ‗Marital status‘ includes Col, includes actual status and spousal identity (who the spouse is). Defence to discrimination is bona fide occupational requirement (BFOR) or bona fide occupational qualification (BROQ). She could still have done HRA even if she was given RN. (e) Illness and Injury as Cause Yeager v. R.J. Hastings Agencies Ltd. (1984) BCSC Facts: Plaintiff alleges wrongful dismissal after 30 years of employment. 27 years of exemplary service but in 1979 his work suffered - appearance of mental illness. The illness increased in severity and by 1982 b/c of illness he was occupationally disabled. Plaintiff never recognized the existence of the illness and the def never said anything about it. 1982 there was a diagnosis that it was organic (subsequently shown to be wrong - it wasn‘t permanent) Fired with no notice. By time of the trial there is full recovery - he was back to ‗normal‘. Analysis: Conduct which justifies dismissal must be wilful and it is for this reason that the law has long recognized that absence from work due to illness (injury) is not cause for summary dismissal. Historically illness seen as act of God. Court says that in this case the illness did not result in absence from work but the court says that they see no difference in no working and working to an inadequate level when the illness is the cause of them both - in neither case is the effect upon on the performance of the employment contract the result of any wilful act of the employee. Here the employee was incapable of appreciating that his work was suffering and accordingly any ‗misconduct‘ that resulted could not be seen as wilful. Therefore ‘cause’ attributable to illness or injury is not cause for dismissal. BUT Frustration of the contract has to be considered. Can it be said that the plaintiff‘s illness was such as to put an end to, in a business sense, to the business engagement which he had with the def? Was the plaintiff‘s illness properly characterized as ‗temporary‘ or ‗permanent‘. This characterization alone is not determinative. Criteria [Marshall v. Harland & Wolff Ltd. LEADING CASE RE: FRUSTRATION]: duration of employment K - we assume that is indefinite w/o express wording. If it was a day-to-day situation then less severe absence would justify frustration. length of illness/injury - look at length at time of summary dismissal. This is an objective assessment. length of service - longer disability would be tolerated if greater seniority sick leave provisions in the contract - simplest is 1/2 day or 1 day per month of work but there is no normal or standard. Say the provision calls for 1 day per month - there couldn‘t be any frustration until 12 days go by. If parties contemplate absence due to illness or injury you can hardly argue frustration until that period is gone. However, just because sick leave has expired doesn‘t mean that employer can immediately argue frustration. employee fungibility - ‗ease of replacement’. If one of many - ie easily replaceable that persons absence is not crucial to employer so employer can conduct bus w/o them for a long period. Contrast this with a key person - shorter period that employer can get along w/o them. application to this case: Most important criteria here was the length of service and the fact that he was recovered by the time of trial (2years). Court says that illness for two years, followed as it would have been by his return to work with normal job performance was not an incapacity of such a nature that it frustrated the contract. Also says that this conclusion is not effected by the erroneous diagnosis that illness was permanent and in any event the employer did not know of diagnosis at time of firing. Y was awarded 18 months salary plus holiday pay and bonuses as RN. The sums he received under a disability insurance policy received during RN period were not deducted. (only deducted if there is an express K to the contrary) Comment: Kil says that the court statement about the two year absence is not good. Doctrinally, a reasonable person would see it as permanent. 2yrs absence is frustration. This case is not factually precedencial. If at trial the plaintiff was not recovered there would have been frustration. But it will be very difficult to get rid of someone with 20+ or 25yrs+ w/o notice. When do you assess damages? if the factor is ―recovery‖, when do you assess the ―time of diagnosis‖? at the time of dismissal? Trial? In 1903, the time of the trial was the prevailing view. But, in contract law, the time of the breach is when you assess damages…argue both, but time of trial is the majority view. Note on sick leave plans vs. Long Term Disability many large employers have both just contractual and can be different among employers STIIP: Short Term Illness & Injury Plan if you are unable to attend work due to illness or injury you are entitled to pay. 1 day/month 10 days/1 year wage indemnification plans ―employer-funded‖ for small employers/ self funded wage indemnification plans ―insurance‖ for larger employers 100c on the dollar LTD: Long Term Disability Plan Compensation during absence. Employer could be self-insured but the vast majority are purchased from private insurers - tendency for them to look very similar. Eg. 2ys at 80% of pre-illness/injury income. Pay is dependent on what employee pays (most is 5 years with 100c on the dollar; no obligation to return) normally you would exhaust sick leave and if still sick you are put on LTD plan - length depends on what it says. LTD plan contemplates one of two events: recovery - return to work; or don‘t recover - finished when the plan expires - you are starting to see retraining while getting $. There can be no frustration until LTD has expired BUT once it has expired the K is done - the employment K is terminated Sylvester v. British Columbia  SCC Disability benefits that were provided under an insurance policy funded entirely by the employer and received during the reasonable notice period had to be deducted from the wrongful dismissal damages. The court held that the deductibility of such benefits from damage awards in wrongful dismissal cases would depend on the terms of the contractual arrangements under which the benefits were paid and the intention s of the parties. (f) Fairness Prior to Dismissal? 1 circumstance for fairness is in cases of incompetence - at least in BC where there is authority for requirement of notice of incompetence and an opportunity to correct. fairness = procedural fairness = natural justice (reasons and opportunity to be heard) General rule is that there is no need for fairness. Most obvious indication of this is the fact that an employer has the right to rely on knowledge acquired after summary dismissal to establish cause and the grounds can differ from those alleged at the time. [Lake Ontario Portland Cement v. Groner (1961) SCC] Exception if PUBLIC OFFICE HOLDER. Included in this category is office holders at pleasure (didn‘t used to require fairness but in the Knight decision the court held that the rationale for doing so was that the admin body should be aware of all factors surrounding the employment and its termination - in so doing this does not require cause but only require the office holder to be given reasons and an opportunity to be heard. Fairness was always required for office holders dismissable at cause. General rationale for fairness towards the POH is that offices have a ‘statutory flavour’. Courts want to regulate the exercise of delegated power. The public has an interest in the proper use of delegated power by admin bodies. When a public body hires an employee normally you would see it as a private act but judges want to review b/c they are concerned about public bodies being fair. Sense that if you are unfair in your treatment of employees you must be unfair when making other decisions re: citizens. Eg. school board - creation of statute; want fairness when they hire/fire principals. Principals are POH because there office is in the statute and the statute provides duties and powers. Teachers are NOT POH. Eg. Police are POH. Police Act Police Board Peace Office are POH POH are the only ones who can claim fairness. Public office and stat powers/duties position created by legislation - almost automatic POH if there are stat duties/power given to individual - not quite as good sufficiently strong statutory flavour to the position less significant in BC b/c of the increased unionization of POH significance - fire principal - call in, inform in process of deciding to fire; inform why and invite them to give reasons why they shouldn‘t fire. Kil says this is really a sham as it is unlikely to sway them. Really you use this as a lever, threat of delay, adverse publicity; to get reasonable notice. 4. Reasonable Notice a)Intro only need RN where there is no cause whether it is RN or pay in lieu is the employers option - overwhelming majority opt for pay in lieu RN is implied term so it is subject to K no specific performance - no orders for continued employment (too much like slavery) mutual obligation - employee also have obligation to provide RN and on face could lead to action for breach of K by the employer - this would be rare means reasonable, not actual Purpose - give employee money to tide over while looking for alternative employment BUT employer only has to give RN not the actual time it took the employee to find employment. Starting point: Employment Standards Act sets floor Contract (oral or written) sets range Case authority: 18-24 months +Wallace‘s punitive damages (more notice required if nasty) b) Bardal Criteria – set out in Ansari (Ansari is leading case in BC) (i) length of service - seniority likely the most Important hardest one to justify on contractual principles; like a reward for long service 1 argument that has been advanced in support of this one is the narrowing of skills; the longer with an employer the greater the likelihood that my skills will have become narrowed to the way this employer does things. basically this is a longstanding rule that the courts won‘t question (ii) age 50 is still seen as the threshold potential for retraining potential for discrimination (but keep in mind Ibrahim (1985) AltaSC since discrimination was on the basis of race, no intersection of age and race. health considerations (however, this is the most productive time!) harder to get replacement employment as future employers do not want to make such an investment in human capital (iii) availability of equivalent employment equivelant= same status, same job at same remuneration—Kilcoyne thinks that this will be tempered such that employee will be under greater obligation to take another job even if less pay marketability of employee in question - experience/skills in demand? Ansari says it shouldn‘t be a factor but Kil thinks a court would look at it. higher degree of specialization longer notice b/c fewer jobs # of jobs available for this person (1) economic conditions - Hunter v. Northwood Pulp - levels of unemployment/economic conditions are clearly relevant but ought not to be given undue weight (2) judicial curtailment—there is some evidence to suggest that courts are looking to reduce the overall length of reasonable notice 1960‘s ever increasing notice now: ―these are hard economic times, Canada must respond to International pressures and employers must be ―leaner & meaner‖ and fire people so, what is needed is a ―legal subsidy‖ to allow employers to make decisions for the greater goods judicial response: (1) maximum limit (2) rely on notion of factual intent ―what would te parties have agreed to at the time they entered into the employment contract? Pelech (3) geographic region presence of other employers - eg. where employer is the dominant/only employer in the area you would have to give longer notice as less likely to find another job whether the employee was enticed to move to smaller community to get job - implied term to pay more $ for RN Algoma Steele 1988 OntHC remote area and few alternatives so, longer notice, but the Plaintiff was enticed to move to this area (this, the geographic consideration was fuelled by the inducement factor) (4) Length of Service (1) calculation: ignore ‗hiatus‘, although, if a LTD plan exists, you remain and employer and the clock keeps ticking (2) rationale for looking at length of service: in contractual terms, this has no relevance, bu the longer (5) character of employment - status/$ (a) senior managers; professionals deserve longer notice than other people. Bordal never provided any justification for this other cases have attempted to justify higher up so fewer jobs CEO would have negotiated long notice and generally do (b) Cronk v. Cdn. Gen‟l Ins. Co. (1994) (Ont.Ct.G.D.) (Ont.CA) Trial ―character of employment considerations are really just a reflection of systemic discrimination; on its face it is gender neutral (with respect to human rights) but in its application it is discrimination. CA overturned on procedural grounds…some law clear did research when the judge should have asked the lawyers to do so. Problem with Cronk : now we have a presumptive maximum of 12 months for non- managerial people, before, there was no maximum Van Tent v. Cloverdale Raceway 1997 BCSC: woman with 20 years of clerical service; the court cited Cronk and gave here 9 months (iv) miscellaneous issues (1) enticement - hired away (usually to a remote location); geog location (2) allegations of cause - fire employee with no notice and attempts to argue cause but not successful; generally will increase period of notice as a result (3) manner of dismissal (?) Ansari says this isn‘t relevant. Eg. plaintiff escorted away by security guards. Ansari would say that this is irrelevant but that doesn‘t play out in real life. In some cases the court will include this b/c of argument of mental distress - says that the conduct wasn‘t nice but not enough to found mental distress but the court may tack a couple of months on to RN. (4) minimum notice period – Employment Standards Act s. 42 - Southin in Pelech suggested that this was cap for unskilled; this has been widely criticized. maximum - 18 - 24 months. Comments : Kil feels that if employee goes thru the effort of sustaining a wrongful dismissal action the court will invariably give a couple of extra months. This rarely makes a wrongful dismissal action worth while for anyone below middle management as these actions are very expensive. Give a strong incentive for settlement to both sides. Ansari v. British Columbia Hydro and Power Authority (1986) (BCSC) (aff‘d 1986 at CA) Facts: Engineers at Hydro were deemed surplus and terminated w/o cause or RN. Given severance but it was based on an inadequate formula. Summary actions for wrongful dismissal under 18A. Analysis: General In assessment of wrongful dismissal damages, the recovery of income is not limited to salary but includes other benefits incidental to the employment being terminated. damages are not to penalize employer for manner of dismissal nor nor is the employee to be unjustly enriched. Period of RN Bardal Criteria. (1) Character of employment: courts aren‘t concerned with the minutia of the employment nor with the specific competence or incompetence of the employee (ie contribution to financial success of the business) - although some have commented it appears from the reasoning that the RN period wasn‘t extended because of this subjective ground. Court is not entitled to award a bonus for the employee best efforts (that is what they are to give under the k and what they are paid for) by increasing the notice period and conversely the employer can’t punish incompetence by reducing the notice period. not necessary to investigate the differences in specialization among these engineers. They are highly skilled graduate engineers that BC Hydro employed in responsible positions and this is enough to entitle them to longer notice than would be given in many other cases. Says that he won‘t make distinctions between these professional employees on the basis of supervision of other employees. It may be useful in some disciplines but not when you are dealing with prof skilled individuals who are employed b/c of these skills. (2) Length of Service only one that doesn‘t bear directly on employee prospect for future employment says that for some reason the law requires longer notice for long term employees and that he won‘t disturb this. one reason for this may be that the employee has a moral claim which has matured into a legal entitlement…also, the ―tailoring of skills‖ may be an argument (3) Age age bears importantly on the prospect of future employment because employment opportunities for older engineers are extremely limited. (4) Availablity of Equivalent Employment economic factor length of RN is not equivalent to the time required to actually find new employment lack of available employment opportunities due to depressed economy can be taken into account but shouldn‘t be given undue emphasis move from another prov or within a prov may be worthy of weight but it shouldn‘t be given undue weight as few employers would agree to such conditions at the beginning of the engagement. And this type of factor would lose force after a number of years. Hunter case discharges after 2 years and 9 months and the court took the move into account. McEachern says that after 3 or 4 years it should be given very little weight. This is pertinent to this case. says that economic considerations such as reduced business activities or opportunities shouldn‘t be a factor in fixing the period of reasonable notice. marketablity of the particular employee - experience, training and qualifications are only Important when considering the importance of the employment function and in the context of alternative employment. Kil says that this should be considered. rough upper limit for the notice period which has lately been substantially increased. Suttie case - 58 yr old employee, exercised management functions, 39 yrs service was given 24 months. Law puts cap, won‘t compensate a discharged employee to retirement age, even if there is no likelihood of alternative equivalent employment. Rough upper limit is between 18 and 24 months and other cases should be scaled down from there unless there are extenuating circumstances. Comes down to what is objectively reasonable in each case. Conclusion: RN awarded in this was from 14 to 18 months for engineers with 10 to 17 years of service. No deductions for failure to mitigate. Comment: these factors benefit those employees who hold highly skilled (professionals) or senior positions. The propriety of this has been questioned. Pelech v. Hyundai Auto Canada Inc. (1991) BCCA Facts: Jan 86 - obtained employment as shipper receiver. Paid by hour; oral contract. Jan 89 - injured in auto accident, received disability under employer plan. Nov. 89 he returned to work. Nov 7, 89 notice of termination - bus was slow and that he had missed too much work in the past. Issue: Did TJ err as the employer had given 4 weeks notice Analysis: TJ - plaintiff at lower end of scale according to employer; he was presumed to be loyal and diligent by his employer. Not uncommon for employee to get 1 month per year. Notes that this would be towards the higher end but that this was appropriate in this case. Gives 4 months CA - doesn‘t know of any authority for the 1 month per year. cites Employment Standards Act s. 42 which sets minimum standards for notice: (1) 2 weeks where employee has worked for 6 consecutive months; (2) after 3 years you add a week for each year of employment up to a maximum of 8 weeks notice. plaintiff was engaged in an job which required no special education; generic occupation; unskilled work although the remuneration was above the minimum wage. if employer had been asked at beginning of plaintiff employment what notice was required for termination he would have said whatever the law requires. If employee wanted to leave he would have been surprised to be told that he needed to give more than a week or two. plaintiff was never promoted; not a case where we have an employee who has worked for a number of years and received promotions leading to a more responsible position. notice required by stat was all that was necessary in this case Cronk v. Canadian General Insurance Company (1994) On G.D and (1995) ONCA Facts: Ms. C worked at an insurance company. Lost her job due to poor economic times. She was 55; worked at company for 29 years; but she wasn‘t a senior manager. Employer offered her 9 months salary to be reduced by 50% if she found new employment. Ms. C wanted 20 months salary less the amount already paid. Analysis by TJ: MacPherson Factors in favour of generous notice period: 55 is a particularly vulnerable age; may be too old to embark on lengthy or strenuous retraining and yet too young to retire. She is a woman so gets 60 - 70% of the pay of a man - she needs another job. availability of similar employment - she has grade 12; training is clerical specific to an insurance company; she has no qualifications for another job; she lives in Hamilton and doesn‘t drive. Doesn‘t suggest that re-entry will be quick and painless she worked for this employer for 29 yrs - virtually her whole working life. Case law in Cda attached great weight to the long and loyal service factor. Def arg against long notice Calculation in length of service: she didn‘t work there for 29 yrs because there is a six year gap in her service and that when she was rehired in 1977 she was accorded no special treatment b/c of prior employment. Def argues that employment should run from 2nd period of employment - ie 1977 which means she only worked here for 16 years. Courts response - Ms. C isn‘t claiming for that 6 year period even though she did casual work for the def during that time. Most decided cases have held that an interruption in employment doesn’t wipe out the first period for the purpose of calculating RN. Reason for not counting it are based on the employee being given seniority rights on rehire and whether the employer actively sought to rehire. No ev of seniority rights but the def did approach the plaintiff to come back to work. She had a good reason for interrupting her employment - she wanted to stay home and raise her kids - she should be accorded the same treatment as those who leave job to take another job and then return to the first job. Also the interruption wasn‘t complete as she did part time work for the def. Concludes that period of employment should be 29 years. Relationship between type of employment and RN: def argued that senior management or specialized employees with higher educational training should be awarded longer notice periods than non-managerial employees with little or no higher education or specialized training. Reason: higher specialized/higher rank the smaller # of similar positions available so more time to find another job; greater stigma attached to senior manager who loses job. Courts response: Stigma arg - doesn‘t see how the stigma that a dismissed employee may personally feel, or that may be created in the minds of others, is dependent on the employee level of employment. A job is a job and the stigma attaches to the lose of the job not to the level of job from which the employee was dismissed. Managerial/clerical distinction - TJ reveiws the cases where notice periods between 18 and 24 months were awarded - these employee were in senior position. Says that the def has offered no ev to support arg that these individuals would have harder time finding employment. Ms. C was fired from her clerical position in the insurance industry b/c of economic reasons. In fact those employees who got 20 and 21 month notice periods in fact got new jobs in approx 9 months. Ms. C has been unemployed for almost 8 months already, her prospects are bleak. Reality is that those with education and training - the senior manager/ professional person are in a better position not worse Conclusion: No reason for giving her a shorter period. Reality is that she is older, has worked for this employer longer; is less likely of find a new job than most of the six men who have received the 20 and 21 month periods. Given his comment on the pay gap; family responsibilities; compound discrimination - intersection of gender and age it would seem that he feels that she is worse off. Gives 20 months notice. Analysis by CA: Agrees with the calculation of length of service. Says that they don‘t need to comment on the validity of the def argument as to why senior managers and professionals should get longer notice. Overturns the TJ on a procedural matter. He used his own research to find sociological studies and did not make them available to the parties and this info was beyond the scope of judicial notice. Overturns on substantive matter and reaffirms Bardal that CEO’s get more. To calculate the RN you need to weigh all the factors of Bardal and it appears that the TJ Collapsed them all into re-employability.(Kil says that this isn‘t really a good arg - they just didn‘t want to overturn Bardal b/c it is so entrenched) While the character of her employment will restrict her to the level of a clerical, non-managerial employee, her age and length of service properly qualify her for the max notice in her category. Gives her 12 months notice Dissent in CA discusses the reasons why senior employees need more notice but he doesn‘t really say why these arguments are wrong. He just comes up with different arguments and says that he would order a trial to consider the issue fully - it was just a summary judgment. He agrees that the TJ should have given the parties an opportunity to present argument on the info he found on his own. 5. The Effect of Express Notice Clauses (i) RN may be displaced by contract Nardocchio - form K provided for 3 months employment. She progresses up the ladder (no new k signed). Court finds it unenforceable and awards 12 months notice. (ii) Contractual term may become unfair/uneforceable over time (Nardocchio) Explanations: Different contract over time parties weren‘t ad item - non es factum unconscionability - term which is fair at time K entered into may become unfair and unreasonable and therefore unenforceable overtime BUT (iii) Will require supporting facts (Wallace) Facts in Nardocchio and not in Wallace: W didn‘t go anywhere, in fact he went down the ladder; no increase in responsibility W was not under a form K; there was a detailed discussion of terms in N employer relies on term of K but also argues theft (withdrawn b/c there was no supporting facts) (iv) If K notice is less than ESA then normal RN analysis (Bardal) will be applied can‘t K out of ESA so terms of a K that tries to will be unenforceable Machtinger - SCC rejected the argument that you should look at what the employer and employee intended at the time of hiring, in order to determine the amount of RN which is required on termination of an employee. In Machtinger the employer argued that based on the intention the court should use only the minimum under the ESA. The court rejected this b/c it would under cut the employer incentive to comply with the ESA. Nardocchio v. CIBC (1979) Facts: Hired in 1966. Started as teller and was promoted in 1975 to Assistant Accountant. Dismissed in 1978 with 3 month salary in lieu of notice. This was in accordance with the K signed in 1966. Analysis: Court has no doubt that those terms were reasonable when she first started but they aren‘t reasonable for someone who has served employer faithfully for 12 years. What was fair in the early part of employment might certainly not be fair when she has developed new skills and acquired greater experience. no unsatisfactory reports filed against her. Seems that there was a personality conflict with a new employee and instead of transfering either one the employer decided to terminate Ms. N. Rough treatment Ms. N never knew or understood the terms of the agreement that she signed. No evidence that the terms were discussed. Just as likely that it was as it wasn‘t but court leans toward it not being. Def would have been wise to go over the terms on her promotion. Court awards RN of one year. Age - 44; promoted; satisfactory service; made efforts to find alternative employment but hasn‘t secured any - was even prepared to accept any type of employment; also notes the difficulties she had at work and the personality clash was not entirely her fault. Comment: Despite this and other cases usually the principles of freedom of contract will prevail and employers who are careful about how employment contracts are negotiated and drafted can usually avoid being bound by RN. Wallace v. Toronto-Dominion Bank (1983) OnCa Facts: Plaintiff was 43. Became a CA in 1964. Joined TD in 1970 as a systems research analyst. 3 month probationary period after which he signed a K which entitled him to 4 weeks notice or salary in lieu of notice for that period. Plaintiff testified that he hadn‘t read policy manual and that the matter of termination wasn‘t discussed. Constructively dismissed after 8 years. He had never been promoted. TJ held the k to be unfair and gave RN of 1 year. Analysis of CA: validity of the K was not in issue and the record was devoid of evidence relating to it. Plaintiff doesn‘t recall signing it but you can‘t infer from that he didn‘t consider the terms and the future effect of them. short, simple, straightforward document, well within the comprehension of a person of his education and experience who had recently (when he signed K) quit his job at another bank and so would be alive to notice requirements. no ev that K lacked consenus; no ev to this effect was adduced no indication so far as the plaintiff was concerned that the notice provisions were unanticipated or unknown to him before hand or would have accepted his decision to accept or reject employment. no claim during the trial that this K could be avoided on the ground of unfairness or unconscionability according to standard bus practice terms weren‘t hidden in maze of fine print; no attempt to take advantage of the plaintiff or to exert influence over him so as to procure a K that would not otherwise been made; no oppressive conduct and no coercion to vitiate consent. not the type of case where the employee has moved up the chain to such a degree that it could not be attention that the notice provision would continue to apply. Indeed the manual said that they would remain applicable to a person of the plaintiff‘s status. 6. Remedies (a) generally (5) sucessful plaintiff will be awarded damages calculated o the basis of lost wages and benefits for the period of notice which should have been awarded (6) rarely difficult to justify including an amount for the reasonable cost of a job search (7) harder to justify an award for the cost of retraining. However clerical retraining for computer is usually accepted. (b) mitigation (8) General rule is that the employee must act reasonably in all the circumstances by looking for other, comparable/similar employment (9) onus on employer to show that employee failed to take reasonable steps. This is rarely established. Cayen v. Woodward Stores - employer was able to show lack of mitigation. Recall that this case established that in CD we expect the employee to take the lesser job offered by employer unless - (i) frayed relations; (ii) seriously reduced salary; or (iii) meninal position. However Kil can‘t find another case which followed this part of Cayen. (10) If alternate work is found then the amount earned is deducted from the damage award. [Baker v. Burns Food] (11) important considerations arise in CD cases. See above and pg. 9 (c) no reinstatement (12) specific performance of the employment K in the form of reinstatement is not available at Col (d) Damages for mental distress and punitive damages (13) recall that all damages for a breach of contract must be compensatory (i) mental distress is a form of aggravated damage these remain compensatory but take into account intangible injuries - eg. ridicule, mental distress to sustain action you almost always have to show physical manifestations of mental distress - eg. puke beyond that it is difficult to prove - the breach of the k is failure to give RN, it is difficult to foresee where aggravated damages were caused by lack of notice and not from the loss of a job itself. Such a situation would be rare. Vorvis v. ICBC (1989) SCC - the court said that mental distress damages might be available in wrongful dismissal cases where the conduct complained of was independently actionable and the injurt arose out of the dismissal itself. In this case the conduct complained of preceded the wrongful dismissal and there for conuld not be said to have aggravated the damage incurred as a result of the dismissal. I think they were rude to him in meetings and stuff. (ii) punitive damages are different they are a punishment directed against the contract breaker and are an exception to the compensatory rule doctrinal test - conduct must be of a harsh, vindictive, malicious, and reprehensible nature. [Vorvis] Vorvis also added that the conduct must be extreme in its nature and such that by any reasonable standard it is deserving full condemnation and punishment. from Vorvis you get the impression that these types of awards would be rare and reserved for the most outrageous conduct yet they are suprisingly common (iii) recent illustration: Williams v. Motorola (1996) On Facts: 9 yr employee; marketing rep selling sophisticated computer systems. DND is one of their major customers. T1: K from DND for 10 mill - W is to spend 1/2 her time putting together the tender (she spends 18 months on it). If accepted she would get a commission of 250,000. T2: day before the tender is do she is summarily dismissed; would be given 18 wks notice but only if she immediately signs right away and waives all future rights. She refuses and is escorted out of the workplace by security. Analysis: no aggravated damages in question. Claim is for punitive damages (14) employer claims that dismissal was due to downsizing (recall that this is not cause) (15) at trial it becomes clear that at time she was fired there was no one else fired 6 month before or 6 months after her. (16) ev shows that her sales were as good or better then the other sales people (17) court concludes that termination was likely done so that Motorola could reduce the tender price by getting rid of her commission. (18) court concludes that it was arbitrary, contemptuous and highhanded - awards $20,000 (punitive damages) in addition to RN. 7. Statutory Notice Provisions (a) Notice for individual terminations (i) s. 63(1) Period of notice [see pg 2-91] This section provides for a maximum of 8 weeks notice. (ii) written notice is required - 63(3)(a) (iii) failure to give minimum notice means that severance pay must be given (pay in lieu) (iv) there is no duty to mitigate - the entitlement is absolute. Judicial reasoning has latched on to the phrase ―compensation for length of service‖ as justificaton for the no duty to mitigate. In reality this phrase was likely used by the legislature to ensure that employee would have priority over unsecured creditors in a bankruptcy proceeding. (v) exceptions: who doesn‘t get notice (19) ESA Regs - tons of them, for each section of the ESA there are 10 or 20 different occupational categories. Make sure you read the regulations if you have a question in this area. BC Reg 396/95 provides that the ESA doesn‘t apply to architects; ca‘s; lawyer (and articling students); chiropractors; dentists; engineers; insurance agents; medical doctors; naturopaths; optometrists; podiatrists; real estate agents; veterinarians, inmates under the Corrections Act and sitters (20) s. 63(3)(c) - terminated for just cause. (21) s.65 employed only for a definite term -65(1)(b) reasonable alternate employment offered and the employee refused - 65(1)(f) frustration of k - 65(1)(d) (vi) s.66 - if a condition of employment is substantially altered, the director my determine that the employment of an employee has been terminated (vii) Comments on Process (22) could make a wrongful dismissal action (23) if economies don‘t justify wrongful d action there is an admin process for enforcing the ESA rights fill out form; investigation; provision for admin tribunal; certificate can be issued (order to employer to pay ‗x‘ wks wages to A) and if no compliance it can be registered by a court relatively simple and expedited process (b) Notice for group terminations (i) rationale: greater notice required where there is a large group (24) NAFTA readjustment (25) economic shockwaves from mass termination - demands on state resources (26) lots of people will be looking for work (ii)Canada Labour Code: where 50 or more are terminated within 4 weeks the employer must not only provide notice to the employee as specified in the Code; also must give 16 weeks (prior to termination) notice in writing to the Min of Labour; Min of Employment and Immig; the Cda Employment and Immigration Commission and to any trade union representing the employees. (ii)British Columbia (27) S. 64 any employer who intends to terminate 50 or more employees at a single location within any two month period must give written notice to the Minister, the employees and union. (28) s. 64(3) Notice periods: # of Employees Effected Required Notice 50 -100 8 weeks 101 - 300 12 weeks 301 or more 16 weeks (29) 64(2) written notice must specify the # of employees to be affected, the effective date or dates of termination and the reasons for the termination (30) 64(4) if an employee is not given the notice required, the employer must five the employee termination pay instead of the required notice or a combination of notice and termination pay (31) 64(5) notice and termination requirements of s. 64 are in addition to the employers liability under s. 63 (32) note that group termination provisions apply regardless of whether the employment is terminatied by the employer or by operation of law (33) Exceptions: s. 65 (1) and (2) [same as for individual] and 65(4) which is specific to group terminations - s. 64 doesn‘t apply to an employee who was: offered and refused alternative work available through seniority system [(a)]; laid off or terminated as a result of normal seasonal reduction, suspension or closure [(b)]; or laid off and doesn‘t return to work within a reasonable time after being requested by the employer. (34) Minister may require the establishment of an adjustment committee [s.71] Made up of employees; employer; and government. Purpose is to develop a plan that will eliminate the need to terminate or minimize the impact and assist employees in finding other employment (iii) no duty to mitigate (iv) in real life you will see risk aversion from employers, they will err on the side of caution and give notice early (v) in BC the odds are that these would be unionized groups so not really an issue - little action under ESA. (c) Statutory Notice and Collective Agreements (i) ESA has special provisions for when the employee is covered by a CA (ii) s. 69 - if the provisions of a CA relating to an individual termination, including layoff and recall provisions, when considered together, meet or exceed an employee‘s entitlement under s. 63 those provisions govern. (35) Where they are less than s. 63, s. 63 is deemed to form part of the CA and replace the relevant provisions of the agreement. In this case the greivance provisions under the CA will be used to resolve any disputes arising about the effect of incorporating s. 63 (36) Exceptions exist for employers who are in receivership or who are insolvent - 69(6) (37) Employees entitlement under group termination are in addition to any that exist on an individual termination. (iii) s. 70 deals with how layoff provisions under the CA interrelate with the minimum standards set for individual notice of termination. (d) Unjust Dismissal Provisions (i) BC does not have one of these (ii) Canada Labour Code is applicable to the employment sector regulated by parliament. (iii) at Col the employer can dismiss w/o cause at anytime as long as he gives RN (iv) unionized environment - no termination unless just cause; in absence of cause the employer has no right to terminate. [however lack of work is considered as grounds for termination] (38) why do unions get this statutory benefit? We should give Col non-unionized workers the same benefit (v) how it works: Assume you work in a sector governed by the CLC and are fired. You have worked for 12 consecutive months, you file complaint; inspector attempts to mediate (doesn‘t usually work); inspector prepares report on the equities and forwards it to the Min of Labour. The Min can choose to do nothing or can refer to an adjudicator. If goes to the adjudicator there will be a hearing and assuming there was no just cause you could get damages or reinstatement (vi) on the face of it this is a huge change, but reinstatement is rarely ordered. In approx 38% reinstatement was ordered the rest were damages. (39) one of explanations was that in a unionized environment you have greivance procedure and reinstatement works out reasonably well.(if you measure it by a lack of new disciplinary actions) Having a union involved changed the dynamic. (40) unionized employers know the game and the rules; Col employers don‘t get it (vii) people were interested in this about 10 years ago but it is not talked about anymore. CHAPTER 4: INTRODUCTION TO COLLECTIVE BARGAINING A. HISTORICAL OVERVIEW THEMES (41) 1800 - 1945; 1945 - Present (see the employergence of modern CB) 1. craft vs. industrial workers (42) roots are in the craft or guild system in the UK. Guild was made up of skilled labour, ignored unskilled. Efforts of monopolization (43) industrialization, mechanization, assembly lines culminate in a different type of worker, the industrial worker. Essentially they were unskilled. Roughly up to 1920 the TU had no interest in organizing the unskilled industrial worker (44) dramatic increase in strike action (particularly during WWI); note: the vast majority of strikes were not about terms of employment, instead they were called ―recognition strikes‖. There was a lot of disobedience of court orders (45) 1930‘s there was a sense that things had reached a ―crisis level‖ 1940 merge between the two: trade v.s. industrial workers (46) according to Kilcoyne: a lot of union disputes occur in these cases as the problem is that trade workers tend to be paid a lot more than industrial workers and it (47) due to these troubles, the US passed a Wagner Act which was adopted by Canada in 1945 (48) (1) GET THIS FROM JUDE (2) recognition strikes (3) certification: issue a card (4) establishment of a Labour Relations Board 2. international vs. national unions (49) American (basically what we mean by ―international‖) formation of federation of labour - AFL (craft unions) was created in 1905 CIO was mandated to organize industrial workers (steel and auto workers primarily) today it is the AFL-CIO (50) Canadian in beginning virtually all the unions were imports from the UK - this was true up til 1880‘s shift in terms of national unionism and reduction of emphasis on UK - turn to US instead, int‘l union uptil the 1960‘s we were dominated by int‘s (US) unions starting in 1967 you see the employergence of public sector bargaining; home grown unions; burst of nationalism in Cda - growing feeling that Cdn workers were not well served by US unions preoccupation with craft unionism and this was accompanied by an antipathy towards industrial workers equivalent to AFL was the TLC equivalent to CIO - CCL - CCL was highly politicized 1930 there was a merger of the craft congress and the CCL which produces the CLC (Cdn Labour Congress) which still exists the craft vs. industrial worker distinction still exists as craft workers could have their own bargaining unit in a factory. 3. Business (‗economism‘) vs. Social Unionism (51) reflects differing philosophies. Older groups (AFL and the TLC) tended to be business unionism while the ‗new‘ ones (CIO and CCL) tended to be more interested in social unionism (52) business unionism is concerned only with higher wages/benefits -$ (53) social unionism - wants legislative change - medicare; contributions to political parties. (54) US is business unionism; B.C. is more social unionism 4. Legal/Judicial antipathy toward trade unionism (a) Col (55) duty of fidelity to employer was developed in response to the threat of unionization (b) Tort Law (56) lots of torts were developed in response to union activity (57) tort of intentionally inducing breach of contract - liable personally and by funds of the union (58) tort of civil conspiracy (in restraint of trade) (c) Injunctions (59) they were heavily relied on (60) they could be obtained relatively quickly (61) if breach of injunction opens up possibility of civil contempt ($ damages) and criminal contempt was waiting in the wings (not used often b/c of martyr possibilities) (d) Criminalization (62) watching and besetting - response to picketting (63) criminal conspiracy in restraint of trade (64) sabotage; intimidation (e) Comment (65) lasts until the 1920‘s or 30‘s (66) some sense that the antipathy may endure today (67) in all other jurisdictions the jurisdiction over labour is split between the courts and the LRB. To begin CB is governed by the LRB but jurisdiction over strikes, lockouts etc is governed by the courts. In BC there is no court involvment (in theory) b/c of privative clauses. 5. Modern Compromise (a) What it envolves (i) legalization of tu (ii) legal right to from tu (iii) prohibition on employer interference on formation and running of tu (iv) legal obligation on employer to negotiate with tu (v) role and legality of the strike/lockout recognized (vi) reliance on an admin tribunal to the partial/total exclusion of the courts (b) When/Why/How (i) developments in the US and an increasing # of high profile strikes; in the US much is made of the fear of government in the event that there were no tu‘s. Feeling that the political structure was being threatened by working class movements. In the US another explanation was the cost. (ii) 1935 ―Wagner Act‖ was passed in the US and it essentially recognized the elements of the compromise (iii) In Canada PC-1003 just borrowed from the Wagner Act. It took over a decade to make it to Canada though. Major difference was that we showed a greater interest in admin tribunals and a restriction in the involvement of the courts. In the US it is seen as a private process and there was rarely significant government involvement. (true in 1935 and to some extent even today). Hold over from the 1907 Industrial Disputes Investigation Act was that the enthusiasm for the stike/lockout was muted. Had mandatory concilliation, arbitration, mediation before strike or lock out. B. BC LABOUR RELATIONS note: in B.C., labour disputes tend to be more polarized, you either work for unions, or you work for management, you never do both. In other provinces, you could do either. 1. Historical Characteristics (a) high level of unionization (68) pretty well the highest in Cda and this dates back to 1910. (69) For a long time it was around 50% and the current is 37% and it has been quite consistent (unionization is growing in the private and the public sector at an equal rate). (70) Resource extraction based industries may make unionization easier (labour costs are relatively small compared with equipment costs) (b) confrontational/militant (71) both management and employees, but tends to be more on the union side (72) 1972 per capita we set the world record for days lost - 2 1/2 million days of production days lost for 300,000 unionized workers; 8 days per worker! (now, Canada is at that bottom, but in the early 80‘s we were in competition with Italy re: days lost) (c) „radical trade union-ism‟ (73) B.C. has a higher number of social union-ism (business union-ism (primary function is to increase levels of compensation for members: more money) v.s. social union-ism (considers broader social issues: more money and power) (74) CAMA led the fight against ―evil American unionism‖ in the 1970‘s (d) Political Culture (75) fascists v.s. communists 2. Contemporary Eras of Legal Regulation (a) 1973-84 MODERN ERA (76) Labour Code of BC introduced; internationally significant, NDP had just been elected and this was a reaction to the previous year‘s strike record it was a brave new experiment as there was nothing like it in North America at the time. limited use of lawyers, and also used ―practitioners‖ (labour relations managers for ex.)as arbitrators extensive jurisdiction over strikes and picketing as well as administrative stuff(before, administrative stuff went before the Labour Relations Board, if it was strikes and picketing, it was to go to court) first contract arbitration many of these are common place features in Canada this was opposed by the trade unions and there was a general strike against it, despite being pro- union (77) architect was Paul Weiler, now at Harvard (78) it was a pro-labour piece of legislation (they didn‘t see it that way, it precipitated a strike) Employers Council (now the BC Business Council) liked it - clearly dominated by big business which considered labour piece as significantly important. (79) Socred government was elected and between 1975 (minimal changes) and 1984 (80) we had well over a decade working with this legislation (b) 1984-1992 (81) significant changes were introduced when the Bennett government was introduced for a second term (82) ‗Operation Solidarity‘ – general strike by private and public sector workers who opposed the government; campaign against the changes; escallating series of illegal strikes which lasted 6 days and amounted to 1 million worker days lost. Government hung tough and went ahead with the changes (83) Kilcoyne doesn‘t see these as that big of changes in real life (84) Industrial Relations Board replaced the Labour Relations Board and the act was also replaced (85) 1987 changes (Bills 19 + 20 Industrial Relations Act ) were really significant changes. Very contentious not just within the tu movement. Entire LRB resigned when these bills were passed. Employer almost felt like that they didn‘t need this escalation. Government felt time was right; increasing global competition; time to reign in unions. Government went looking for new LRB members - uptil then the government would consult with labour and business when choosing the Chair and Vice-Chair. This wasn‘t done; caused a boycott of the LRB by labour which lasted 3 (or 8?) yrs. So you have 8yrs of jurisprudence with the Board trying to work when one of the parties didn‘t show up. Name was changed to the Industrial Relations Council. (c) 1992 NDP back in - Present (86) In 1992 the current version of the LR Code was introduced following a 3 member Task Force (Tom Roper -management; John Bagen - union; and Vince Ready - mediator). Made recommendations to Min of Labour 98% of them were unanimous and were incorporated in the new Code. (87) almost a total roll back to 1973 (88) changes went through with virtually no opposition or press coverage (89) clearly there was substantially back room discussion with labour and business (90) belated opposition from the Chamber of Commerce - BCBC was dominated by big business and this was who most of negotiation were with. Small business was angry felt that they had been sold out. C. CB (PLURALIST MODEL) 1. Market critique of Current Model (i) disolcation of the normal market mechanisms and therefore it is inefficient. (91) constraints on responding to changind mkt conditions - current system is slow to respond to rapid changes (92) wages are 8-10% too high (93) misallocation of labour - seniority gets better benefits and there are costs in terms of labour mobility as a result (94) strikes/lockouts (95) inflation (96) job security/job protection provisions - does it mean we are retaining lower production workers? (ii) unions are undemocratic (97) labour bosses are autocratic and despotic (98) trample over individual rights - tyranny of the majority - causes higher wages or more jobs tradeoff and contribution to the NDP 2. ―Left of Centre‖ critique (i) co-optation of working class by unions (99) unions concerned with $ vs. power sharing (ii) CB is illusory (100) makes it look like there is true equality of barg power (iii) Identity of interest (101) looks to be a greater identity of interest between management and tu leaders than between tu and employees 3. Pluralist Ideology - our model (i) 2 assumptions (102) disparity in barg power between employee and employers (103) conflict is endemic (ii) CB is about bilateral decision making and that is better than having a third party set terms (104) mkt is good but it only works if you have equality of barg power in the mkt. CB puts on an more equal position so it enhances the operation of the mkt (105) bilateral is good b/c these parties are in the best position of recognize efficacious solutions (106) bilateral is good because it enhance the chances of adherence to the solution - gives incentive to comply with the ultimate outcome. (iii) strikes (107) have to have a stimulus to negotiation (108) works almost all the time w/o ever being used - 98% of rounds of CB are settled w/o a strike (109) strikes and CB institutionalize conflict - gives it predictability as they can only (legally) occur at the expiration of the CA. Provides outlet for anti-social behaviour. (iv) contractarian (110) voluntarism (111) preference for bilateral dipute settlement as opposed to 3rd party (112) private perspective (113) atomistic relationships - employee / employer (v) process not product (114) result is not the important thing; we want a fair process (vi) defence is relative (115) claims of relative superiority 4. Contemporary Themes (interrelated) (a) Globalization of Production (116) freetrade agreements (117) european community (118) increased capital mobility (119) technological changes (i) direct efforts (120) increased competition - increasing pressure on individual firms/enterprises; increase productivity or decrease costs. (121) Leads to reduction in labour costs - subsititution of part-time for full-time workers; reduced wages (122) distinction between core workforce (high skilled, high pay, job security) and peripheral (ii) indirect effects (123) lower expectations on the part of employees and arguably on the part of tu (b) Computer/Information Technology (i) employment opportunities (124) job gains vs. job losses (125) gains will be in high tech, high skilled, high paid jobs - likely that this is an over romantic view; not all job losses will be replaced but some will be relieved (126) questionable whether the displaced workers are going to be able to handle/take these jobs - odds are they won‘t (ii) impact on particular jobs - ‗skills effect‘ (127) deskill or upskill jobs? (128) clearly some enrichment but for most part tendency is the other way (iii) quality of work life (129) using technology for enhanced employee monitoring is big in the US (130) here you see more isolation and increase in homework (little significant ev) (131) health impacts (c) Structural Shift (132) shift to service sector jobs - business, personal service, retail, financial (i) characteristics of the jobs (133) lower $ (134) part time (135) higher turnover (136) no benefits (137) tends to be smaller units of employees (138) low unionization (139) higher susceptibility to computer technology (ii) implications from the tu perspective (140) harder to organize (141) historically unorganized workers - tu weren‘t interested in them (142) lower rate of success historically (d) Women in the Workforce (i) % of participation (143) disproportionate in part time jobs (144) low levels of unionization (145) unionization at 34% total but if you look at just the private sector it will drop to single digits (ii) compensation (146) enduring wage gap - women earn 2/3 of what men do - remarkably resistant to change (iii) issues (147) challenges to seniority based systems on the basis of discrimination (e) Dual Labour Market - trade vs. industrial (148) ev to suggest that it is developing at an increasing rate - smaller # of trade jobs but they are rapidly increasing in compensation, independence and job security (149) increasing number of industrial or peripheral workers (150) CB will survive but increasingly smaller membership but will rep the ‗elite‘ of workers (151) peripheral workers - tu chances of success are slim to none (152) some policy makers arg that tu/CB are for the trades but everyone else should be under the ESA (153) tu want to organize the historically unorganized and call for specialized legislation (154) two - tiered bargaining - even if tu can organize the peripheral it will look radically different eg. Safeway - the retail clerks union represented the workers for years. They had two-tiered wage scale - those hired before 1991 still make $20/hr but those hired after 1991 make $14/hr. Problem is that they are all doing the same job. Safeway said that the union should have organized Thrifty‘s. D. OVERVIEW OF THE LABOUR RELATIONS CODE 1. Procedure (a) Organizing Period/Drive (155) period during which the employees invoke their rights to band together and form a Collective organization (156) typically assistance is sought from tu‘s; normal approach is to solicit membership in the organization (157) only ‗employees‘ are entitle to claim Collective barg rights need to identify those individuals who fall with this definition under the Code need to identify the ‗excluded‘ employees (158) during OD employers may try to persuade employees not to unionize - some persuasion are ULP‘s - if the LRB concludes a ULP has been committed they have extensive remedial powers (b) Certification Process (159) employees may want in-house or home grown organization but typically they will look to established tu (160) once 45% of employees have joined the union may apply to Board to be certified as the exclusive bargaining agent for all employees (161) first question for the BOARD is whether the proposed group is an appropriate bargaining unit (ABU). general test is whether there is sufficient community of interest such that CB will work (162) next the board will then address the exclusion of certain employees. (163) necessary for applicant union to demonstrate that it enjoys majority support of those employeess within the proposed unit - through membership cards or the board may order a ‗representation‘ or ‗certification‘ vote. If the vote fails there are time restrictions on a subsequent application (c) Collective Bargaining (164) once certified the tu will give notice to the employer that it wishes to engage in CB (165) various procedural requirements in the Code (166) substantive duty on both parties to ‗bargain in good faith‘ (167) duty on union of ‗fair representation‘ of its membership (d) Industrial Conflict (168) failing a negotiated settlement, the employer may lockout the emmes. Alternatively, a strike vote may be taken and subject to compliance with some procedural steps the union may intiate a strike (169) board enjoys extensive powers to regulate the when, where, and how of picketing as well as other economic sanctions (e) Contract Administration (170) once a CA is concluded, there are a variety of issues that will arise during the admin of the contract including discipline and general management of the operation (171) union subject to a duty of ‗fair representation‘ of its membership. October 4, 2000 (172) note almost half of the record number of days lost in 1972 were illegal strikes (173) so, in 1972, part of the thinking was not to merely opt for an administrative tribunal (due to a belief that they were better than court); rather, the goal was to make a body that had significant legitimacy, and would have enforcement powers. (174) members of the board were industrial practioners (staff rep; personnel; labour relations dept of major company: given 3 years absence to go and work on the board) (175) their expertise would (1) provide efficacy; (2) adequate solutions; and (3) take the word back Chair (176) there was a conscious rejection and distrust of lawyers (177) in Ontario, the board is much more doctrinally legalistic than in B.C. Assoc. Chair Assoc. Chair 2. Adjudication Labour Relations Board (1987-92 IRC) Mediation (a) Rationales Vice-Chairs (10) (i) general (178) Members (9 + 9) faster, enhanced expertise, cheaper, ADR options (179) note that the board can be fast but it is increasingly getting slower - criticism by parties (ii) BC - legitimacy (180) decades of judicial antipathy to CB and tu which was typified by the ex parte injunction (181) normally this would be irrelevant but in BC there were a number of high profile non- compliance with injunctions. The government has a limited pool of coercive capital - if it is widespread how do you deal with the costs? employers concerned about production - they want stability and if orders aren‘t adhered to you don‘t have stability wide jurisdiction to the LRB was strongly endorsed by the BCBC - adjudicative structure whose decisions both parties will adhere to. (b) Structure/Composition (182) board establishes a panel - could be just the vice-chair but this would only be in the simplest case; normally it is tripartite. Vice-chair + 2 wingers (1 union and 1 management) (183) members serve for a 2 year term; chosen from union and employer - real life practioners - decisions they render would be respected and seen as more acceptable to the loser. Incidents of split decisions are rare. rather not have lawyers as members but they will take them if the have to spread ‗gospel‘ when they return to their workplace opportunity for the board to identify potential vice-chairs (184) vice-chairs - very few lawyers (this is different than other juris); currently 4 are lawyers (185) chair - always been a lawyer; senior lawyers who appear trustworthy appointed by the LGinC no on appointed w/o at minimum consultation with major business and labour organizations. long standing practice of consultation; organizations have a de-facto veto over the chair; if the B.C. Federation of Labour or the Chamber of Commerce opposed the chair, the government would likely 1999 [previous chairs: Wiler (academic); Monroe (senior manager); ---(union lawyer)] Two years ago, the vice chair opposed the actions of the chair (trade union) arguing that the decisions were too much in favour of trade unions and not cognizant of the global realities facing employers. The vice chair went ―public‖ writing a letter saying that the chair was biased. Vice-chair resigned, a year later, the chair resigned. This is a unique situation for its public nature. Since 1972, there has been very significant respect for the neutrality of the board, and the decisions were never questioned. (c) Jurisdiction (186) all jurisdiction over all aspects of labour relations rests with the board - this is different than other provinces (187) jurisdiction is couched in very broad terms - ‗any question‘ s. 139 - board had exclusive jurisdiction to decide a question arising under the Code. It then goes on to say that on application or on its own motion it may decide for all purposes of the Code, any question. Been suggested that this allows board to determine its own jurisdiction s. 136 - board has exclusive jurisdiction to consider any application or complaint or to make any order authorized under the Code (188) are many privative clauses in the Code general one is s. 138 - any decision by the board with respect to a matter within its jurisdiction is ―final and conclusive and is not open to question or review in a court on any grounds‖. Buttressed by s. 137(1) which states that no court shall exercise any jurisdiction with respect to matters identified as falling within the board‘s jurisdiction and in particular, no court shall make an order enjoining or prohibiting any act or thing in relation to those matters. (189) the Code throughs the court a bone s. 137(2) allows a court to grant relief (injunction normally) where as a result of ‗a wrongful act or omission‘ (usually an illegal strike or picketing line), there is ‗immediate danger or serious injury to an individual‘ or ‗actual obstruction or physical damage to property. However, s. 137(3) prevents a court from issuing an ex parte order. s. 137(4) a court may award damages for injury or loss suffered as a result of conduct contravening Part 5 (deals with strikes, picketings, secondary boycotts, etc) but only if the board had first determined that there was such a contravention. (190) these efforts to oust jurisdiction have not totally succeeded. Courts still maintains it has an inherent jurisdiction to review if: the decision of the Board is one of jurisdiction, then the courts may intervene if there has been an error (ie excess of jurisdiction) assuming the Board has jurisdiction, courts may intervene if they believe that the decision was ‗patently unreasonable; (191) note that there has been considerable deference shown to the BC LRB by BC judges PLURALIST PERSPECTIVE (p. 4-12) Two fundamental assumptions that underlie the Industrial Relations System: (1) fundamental disparity in bargaining power between employers and employees; so, as a pluralist, you would argue that such disparity exists today, and as such the pluralist model is necessary, and; (2) conflict is endemic, and by implication, always will be. (192) This is not about lacking a community of interests, it is about ―who gets the largest piece of the economic/ power pie‖ Note: (193) to what extent ought we try to move towards a more cooperative model (promoting work place productivity) rather than this conflict-oriented model (pluralist)? 3 9 * the economic growth between 1950-1990 is unparalleled and ―is over‖ three ways to resolve disputes (and criticisms from the pluralists): (1) CL (disparity in power is so huge that court perpetuates this disparity) (2) 3rd party arbitrator‘s unilateral determination (if you are not bonded to the outcome, and were not part of the solution, adherence will be minimized) (3) Collective bargaining: negotiation is more efficient (in market terminology, it is more efficient that CL; bilateral decision makers are in the best position to determine the most appropriate solutions): Legal Regulation of Industrial Relations and Strikes o Pluralists do not like strikes, but they realize that they are a necessary evil. Strikes are the engine that drive negotiation (just like: the vast majority of civil matters are settled out of court 14 days pre-trial) o strikes or walkouts aren‘t what work, it is the threat of a strike or walkout is the power o in the last 3 years, the number of days lost from strike has ―fallen through the cellar‖ o strikes institutionalize conflict; cathartic explanation: o Collective bargaining, in market terms, leads to efficient results unionism will increase wage rates by 10% (note: this was done pre-1985; pre-free trade agreements…) increase in capital because of a more stable workforce the gender wage gap is significantly reduced for unionized workers! B. GENERAL PERSPECTIVE 1. Mandate (p. 4-10) Labour Relations Code, s. 2 s.2(1) says that the purpose of the Code is to encourage the practice and procedure of Collective barg; encourage Collective participation; minimize the effects of labour disputes; promote conditions favourable to the orderly, constructive and expeditious settlement of disputes; protect the public interest; and encourage mediation s.2(2) boards powers and duties must be done in accordance with the above purpose (ii) Remedial Authority s.14 gives the board specific authority in respect of ULP general remedial power is in s. 133 s.133(f) authorizes the board to make any order, consistent with s. 2, that it considers ‗appropriate‘ this can include cease + desist orders; change to tu constitution; damages; limited only by creativity board may initiate a hearing or issue an order, on its own motion - rare s.133(c) ‗clean hands‘ - board can refuse to grant relief for breaches b/c of conduct by the applicant if it thinks it would be equitable to do so damages - except in the case of strikes or picketingg, the Board may order both special and general damages for any contravention of the Code or CA reconsideration - internal appeal mechanism, is unusual and discretionary possible for the losing party or intervenor to get board to reconsider lower level. Normally the chair will sit with 2 or 4 vice-chairs depending on how significant the reconsideration is. Big reconsideration panel would signal a shift in jurisdiction. 6 year Collective agreement at Fletcher Challenge 4 Quebec forest company: 8 year CA 0 these lengths are remarkable…used to be the longest was 3 years. employers like long CA‘s as they want predictability/stability; employees like the job security; trade unions worry about this because of increases in cost of living (CA tend to entail a ―Cost of Living Allowance‖ (ColA) Clause; these ColA clauses are seeing a resurgence as a ―real wage purchasing‖) Computer technology impact: 1. re: employment opportunities (optimistic: ―computer technology is great, we will become the Silicone Valley of the North…employment opportunities are good…better work, better pay.‖; pessimistic: ―most jobs created by computer technology is very low pay…every ATM replaces 2-3 jobs‖ CHAPTER 5: PARTICIPATION IN COLLECTIVE BARGAINING (5-1) A. EMPLOYEE 1. Characterization 1. DC are lumped in with employee for the purposes of CB all employees are entitled to claim CB rights use to be exclusions from the categorization of employee - domestic service, agriculture, hunting and trapping, as well as professionals (architects, doctors, lawyers, etc) were removed in 1975 s.1(1) of Code - employee means a person employed by an employer and includes a dependant contractor 2. Excluded Employees entitlment is subject to exclusion - eg. management, confidential can be really important. For example assume that 6 out of 10 employees have signed up; there is potential that 1 of 6 may be characterized as an excluded employee - this would case the certification to fail 3. General Test 4 Col and Stat purpose - see page 5 of outline Tests used: control; economic reality; four-fold; intergrated work test; and stat purpose 4. Illustration Ming Court Hotel and Canadian Hotel and Allied Workers Union IRC 1988 Facts: Note that this is an unusual situation for consideration of employee status. CAIMAW is certified to represent all employees at Ming Court and the CA says that no employees can be fired w/o just cause. Prom was fired - if employee of M then he is automatically covered by CA so could only be fired if they had just cause and if no just cause he will have access to greivance procedure. Choi was the maintenance engineer and he was an exclude supervisor. Analysis - The employer tried to arg that P was an IC. Board says that all the characteristics pointed out by the employer aren‘t incompatible with employee status diff hourly rate - under CA employee get paid different rate depending on what they are doing 4 exclusivity of work - P could work for anyone - Board says that this is true but that other 1 work was all done as a result of directions from Choi projects - Board say it actually looks like a succession of projects like any employee would do. characteristics not compatible with IC M supplied tools and materials absence of estimates comparison of how P was treated and how M treated other IC‘s - P was obviously treated differently characteristics compatible with employees integrated raises at same time as other employees disciplined (no conception of this with IC - if unhappy you just tell them to go away - fund breach of K; unless K for) Comment: M‘s chance of success here was slim so why did they bother? Maybe they thought it was worth it given the the potential underlying costs. Consideration of 5th test - stat purpose - said he had little or no barg power so the act must have been intended to apply to him. Seems to say that you would only look to stat purpose if ―many of the features of the employment relationship are lacking a judgement must be made as to whether P is exposed to the kind of pressures that the overall scheme of the act was intended to alleviate.‖ 5. What is meant by the stat purpose test? -Is this the type of person to whom the LRC is directed? Usually you look for inequality of barg power and position of economic dependecy -will CB provide this individual a remedy for their situation? Is CB approp? Will it work? -this kind of reasoning is used with students, inmates - looks/acts like an employee but stop short of that b/c of countervailing consideration. Eg. articling student - are employees; eg. student teachers; eg. sheltered workshop 6. Illustration of Stat purpose Goodwill Enterprises problem pg. 4-8 -goal of the workshop is to provide job training education, work skills, life skills for physical/metally challenged -3 categories of employees 25-30 - regular/non-displaced s/needs (physical/mental) 150 -250 just applied off the street s/needs (GAIN referrals) 20 -OD by BCGEU - applies for certification -employer says that BCGEU wanted to represent all but these aren‘t all employees -on the face of it these are all unquestionably employees -employer args not really employer b/c of non-profit functions that go beyond employment - social benefit deviation from traditional hiring (other side - Ministry is acting like an employment agency) discipline strike - would to make any difference here? potential arg - moderate to severe mental disability - signing of membership card - capacity - did they understand what the card meant? Could carry it further and ask how will CB work down the road? as barg proposals are usually developed by employees 4 -counter 2 purpose of the code - apparent suitability for CB; they are employees and are in need of protection - differences in barg power; economic dependence on GAIN work is therapuetic and other activities of a union would be equally therapeutic. -Result: board excluded the last category (the GAIN people). GAIN was excluded on the basis that they are excluded from ESA so they must be excluded from the LRC Board spent very little time discussing the of middle group - they are employees; seems almost like they were employees until shown not to be -postscript 2 CB were negotiated Goodwill is now gone GEU organizing drive was not met with enthusiasm by the BC Labour Federation - they had appropriateness concerns concern by other non-profit groups - wages will go up so the # of jobs will go down what obligations should have BCGEU assumed given the disabilities of potential new members - there was concern that it would be business as usual. B. DEPENDENT CONTRACTORS (5-6) 1. Definition included as part of dfn of employee under Labour Relations Code s.1(1) ―dependent contrator‖ means a person, whether or not employed by a contract of employment, furnishing his or her own tools, vehicles, equipment, machinery, material or any other thing, who performs work or services for another person for compensation or reward on such terms and conditions that he or she is in relation to that person in a position of economic dependence on, and under an obligation to perform duties for, that person more closely resembling the relationship of an employee than that of an independent contractor. 2. Tests economic dependence resemblence to employee than IC 3. Rationale in other jurisdictions they included DC by giving a broad interpretation to employee BC was the first jurisdiction to have a DC provision, they are included because: 1. only fair to include them b/c they are so close to employees serves as preservation of existing CB rights - by K‘ing out you don‘t have to worry about unionization; or if already unionized not subject to CA. Keeps the union smaller; provides employer with additional resources if strike; contrating out is cheaper labour. DC finesses this - prevents this arises most frequently with owner/driver of trucks and cabs Fownes Construction Co. Ltd and Teamsters Local (1974) BC LRB ECONOMIC DEPENDENCY Facts: General excavation business which used drivers to move gravel. Unionized workforce. Gets busy so he needs more employees. 1/2 of work is done by regular employees and 1/2 by owner/operators. Decision: They (the owner operators) are DC Analysis: Economic dependence vulnerability is not enough must be dependence 4 attempt at arithmetic figures (don‘t rely on this; it is merely a ―starting point‖) - from the Ridge 3 Gravel case - 80% for dependency. MB and NFLD use this argument. There are lots of cases where there has been less than 80% and dependency has been found dependency must be assessed in the context of the particular workforce here we are dealing with the construction industry - the normal employee in construction will have a # of different employers throughout the year - no one may account for a big part of their income Board said since employee in this context can rarely look to employer for 80% or even 60% of income economic dependency here was obvious; despite the fact that they move from employer to employer, and at the end of the year a particular employer may not be responsible for a significant portion of their income, these factors are not enough to say that this is not an employee-employer relationship Resemblance to “Employee” job tasks were identical to employees supervision was identical if Fownes intent was to avoid Collective bargaining, then the way that the jobs were structured was problematic: 1. little room for entrepreneurial judgement or opportunity for profit 2. owner/driver paid per load; employee were paid per hour - no favoratism as the pay for owner/driver was determined by looking to what employee would have been paid and then added in depreciation on trucks heavily integrated into Fownes long history of union representation of owner/operators by the Teamsters Board concludes that they were more similar to employees than IC fact that some of the owner/operators were themselves employers of another driver was not sufficient to alter their dependent status in this case. However, the Board notes that the result might have been different it the extent of the owner/operators trucking operations required the employment of a significant number of employees as such an owner/operator would be more analogous to an independent contractor than to an employee 4. Certification (5-9) prior to 1992 DC would only be recognized as employee if there was a pre-existing barg unit and assuming they were DC they had to be included in that barg unit; in addition they would only be an ‗employee‘ after the DC is included in certification - which means they aren‘t protected from ulp during certification campaigns. why the integration? don‘t want the employer facing 2 groups. industrial peace This could lead to ―whipsawing‖ where what the first group gets serves as the floor for the second group and everyone keeps striking to ―one up‖ the other…. Public policy concern as more chance of disruption and strike action now covered by s. 28 there is no need to piggy back; can engage in CB even if there isn‘t an existing barg group now, in the Fownes scenerio, the independent contractors could be unionized despite the fact that the employees were not. if there is existing unit there is no need for mandatory integration - however in the overwhelming # of cases the BC board will require integration 5. DC as employers 4 Is there a problem with employers forming unions? 4 monopolies; combines investigation act BC approach - no hard rule; it was ok in Fownes, no conflict of interest as all most every driver was a Teamster; at some pt the court notes that a line would be drawn but where is unclear. C. EXCLUSIONS (5-10) 1. Intro every jurisdiction has them - generally two of them: s. 1(1) of Code excludes the following from the definition of employee: person who (a) performs the function of manager or superintendent; or (b) employed in confidential capacity in matters relating to labour relations or personnel s. 29 influences the interpretation of this it states: If a tu applies for cert as the barg agent for a unit consisting of (a) employees who supervise other employees, and (b) any of the other employees, the board may certify the tu for the unit, for a unit consisting only of employees who supervise or for a unit consisting of some or all of the other employees. this makes it clear that mere supervision of employees does not satisfy the mgme exclusion clause 2. Management Exclusions (a). Rationale [Corp of District of Burnaby and CUPE (1974)] -loyalty of managers is Important for business -preserve integrity of tu - avoid conflicts of interest (b). Doctrinal Situation (5-14) (i) management of overall undertaking = executives and their confidential advisors; is this person responsible for the key aspects of the overall undertaking or are they an advisor to such a person? (senior exec, vice principles; treasurers and advisors to them; there are so few cases that deal with this distinction as in the vast majority of situations, this is a ―no brainer‖ [Vernon Jubilee Hospital]) -the confidential advisors has to do with the management team concept (dealt with later) (ii) management of operations – mangement of labour. There are more fights in this category; note that supervisors may be included in employees unit (BC) or sep barg unit (AB, ON) [Vernon Jubilee Hospital] need supervision; and, a decision making authority re: a key employment topic (iii) development of the law: BC Ferry (1978) 9 criteria; VGH (1993) 2 of the 9 are most important (power to discipline and input in Collective bargaining); Cowthorne (1999) 1/3/9; Highland (1998) (iv) 1978: industrial model of management: authority is centralized hierarchical command-control; reliance on coercion is always going to be necessary intense supervision of labour work has two parts: conception and skill (management) and execution (employee) (Taylor) 4 when work is broken up into component parts, productivity more than doubles and 5 labour costs plummet (an employee is only required to do one skill rather than all the skills necessary to make the entire chair; only management knows how to make the entire chair) thus, labour must be intensely supervised to ensure that employees don‘t learn how to do anything but their component skill (v) ―new age style of management‖ Staturn plant: characterized by a different style of management; devolution of power approach (not top-down directed, give employees the power to make key decisions….historically, these people would have been excluded by CB) degree of supervision is not as intense BC Ferry Criteria for „supervision‘ (5-14) (1) supervision not sufficient alone (supervision of subordinate supervisors is significant) (2) power to impose discipline/discharge [Vanc General Hospital says give this greater weight] -hierarchy of penalties oral - industrial context not enough (maybe different in professional context) written one day suspension 3 day suspension 2 week suspension (qualify as supervision +....) fired (supervision +.....) (3) hiring promotion -distinguish with assessment during probation period - low level supervisors typically do this so this alone is not enough -power to promote form low to next low is not as good as if person could promote from mid level to next level (4) Labour relations input [Vanc General Hospital says to give this greater weight] -input into CB - formulating employer demands - something more than limited input -greivance or arbitration process immediate supervisor (mere fact that you receive greivance is not enough union - assistant mngr of labour relations (involved at this step is more significant pres take it up with mngr of labour relations (5) policy setting -too what extent and how formally is person involved in making employment decisions? (6) independence of operation -the exercise of considerable independence and discretion in performing duties and meeting management objectives (7) supervising subordinate supervisors -supervising a subordinate supervisor(s) can indicate the exercise of a management function (8) ordering overtime -a lesser test but has signif financial ramifications (9) authorizing leave -the authority to grant leave of absence, including the scheduling of vacation leave is usually vested in the office of mngr or superintendent (c). Management Exclusion (i) management of overall undertaking/enterprise - exec, and confidential/policy advisors; not difficult 4 6 (ii) management of operations - mngrs/supt - supervision +..... (1) BC Ferry Corp criteria - consider these in terms of the type of position you are looking at. (2) authority - real vs. apparent or formal Vernon Jubilee Hospital and Health Sciences Association (1978) Facts: Reconsideration of decision whereby Laidlaw (Chief Lab Tech) was determined to be an employee and was included in the barg unit Issue: Would Laidlaw be excluded? NO Analysis: -hospital had strong case for exclusion b/c as Chief Lab Tech he had full authority as to who to hire, fire, promote, overtime, assignment of work, high degree of independence. -difficulty was when you looked at real life he was a paper tiger: Dr. Wilcock believed that all tech activities required his direct supervision - he had to ―stop them from rising above their true station in life‖ anything other than a verbal reprimand had to be cleared by W no hiring unless W approved L had lots of apparent authority but nothing in real life; he was ‗mere conduit‘ Comment: converse holds true as well - ie) if in formal terms L had no authority but in real life L exercised lots of authority he would have been excluded. ―effective authority‖; ―effective recommendation‖ (d) devolution of power „movement‟ decentralization of decision making power Code rules are said to reflect industrial model of decision making which is hierarchical in recent years you are seeing new management theory - growing interest in decentralized decision making virtually no info as to how extensive this is to extent that this is embraced what are the implications in terms of management exclusion? ‗Saturn Plant‘ (e) Recent illustration of BC Ferry Criteria Vancouver General Hospital and BC Nurses‘ Union and HLRA (1993) Facts: Head nurses at the VGH should they be included or excluded? Decision: the original panel included 6 and excluded 2. The board decided to reconsider the case as it involves the movement of CB into professional/semi-professional workplaces where you generally have delegated decision making. Reconsideration panel excluded them all. Analysis: Original Panel: -on the basis of BC Ferry Criteria the original panels decision was sound -independence of operation: substance of decisions were heavily determined by management committees; staff and operation decisions fell under the rubric of ‗apparent authority‘; hospitals are highly bureaucratic - lots of paper, great detail [reconsideration: look at institutional setting at this stage; question to ask is whether the exercise of the managerial powers is condition or dependent upon another person, or are these power exercised independently?] -size of unit - for at least 6 of them it was extremely small (this is suspect under old law) [reconsid: this should not be given much weight, not a crucial factor in the BCFC test] 4 -supervision of supervisors - for some this factor didn‘t show management b/c incharge nurses 7 (who fell between Head Nurse and RN) were temp employee and if they were true supervisors you would hardly expect them to be temporary; further, they argued that the time spent supervising was not very much [reconsid: this should not have been given the weight that it was] -discipline - on face the HN have formal authority but virtually never exercised it. The few cases of discipline were decided by the Employee Relations Dept and not by the HN. The strongest discipline was a written reprimand (not real discipline; termination is) -LR input - rejected b/c they have always had right to input but no ev that requests had been acted upon. large number of greivances but none gone to arbitration (can not strike during the term of the CA (s. 79 peace obligation); rather, must submit to the grievance process; but, what does this mean? perhaps the number of grievances and the fact that they were resolved rather than going to arbitration was evidence of the fact that the head nurse did resolve grievances). Access to personnel files is not enough. Had input re: essential service designation but no decision making authority. In real life no authority just consultation. Reconsideration: -marks a shift in jurisprudence -in the future two of the BCFC criteria will be most significant: power to discipline; and input in Collective Bargaining. -Discipline has to be contextually assessed in the industrial setting an oral or written reprimand is relatively trivial. not the case in professional setting. Evidence indicates that the imposition of a written reprimand has resulted in the RN quitting. More sensitize to criticism power to impose minimal discipline is significant in this setting; 270 grievances in 5 years is significant given the level of penalty in professional or semi-professional setting assume lower levels of discipline are more significant. -CB Input participation even at step 1 of grievance procedure is much more important than in industrial setting input or consultation can be significant - input re: essential service designation is very Important (partial strike those services that are essential to patient safety are designated then you determine how many employees would be required to provide these services. (VGH 1976 )) -exclusion is to protect against potential conflicts -other factors from BCFC are used but more as tie breakers - will not be given much weight if the other factors are not present. -management team concept will not be used as a ground for exclusion of first-level supervisor who may perform administrative or supervisory duties. -potential COI is that rationale for the exclusion not as a factor for exclusion -board adds some paragraphs to allay union fears. The trade union was concerned about dropping the threshold for exclusion. The board and the statute are trying to encourage decentralization of the work place so from the board‘s view real decision making authority will move down the chain. Union worried that employers will manipulate this. The board says that they will monitor this and if they sense that employer are lowering authority (‗sprinkling‘)to enhance exclusions we will frown on it. We may over time change our take on read decision making authority and you may see a different exclusion test in 10 to 20 years b/c authority is being exercised by the lowest level of employee. 4 8 (f) What happens when you rise above the exclusion line? -the employee becomes a Col employee and is subject to summary dismissal -this makes it hard to get employees to take a promotion which will put them about the line - often you can contract for the right to return to the bargaining unit but this would have to be negotiated with the union so you would return with full seniority etc. 3. Confidential Exclusion (LR, Personnel) (a) General Application - normally narrowly construe exclusion if dealing with personnel dept; converse if dealing with labour relations dept (b) Criteria for confidential position - Central Park Lodges of Canada (i) confidential information: access to information that union would not otherwise have regular access to (e.g. salaries, leave records, etc. (ii) confidential info must be such that disclosure would be prejudicial to employer interests - this is a slight hurdle, even a chance would suffice. (iii) access to the information has to be a regular part of the employee‘s duty - as opposed to random. -precludes the employer from expanding exclusion by manipulation -how much of a burden would it be for employer to remove access from this employee - if simple to transfer likely would include the employee (c) Categories: [Burnaby Hospital] (i) employee records administration: generally clerical, embraces some confidential info which is treated in a routine fashion. Mere access to such data even though it is confidential will not allow exclusion (ii) employee benefit admin: significant responsibilities, but routine in nature and may be more accounting than personnel; not generate the kinds of judgements to require exclusion (iii) safety and training: will not usually have the type of confidential involvement required but should this person have other related duties like manpower planning his status will merit further examination (iv) wage and salary admin: normally would only be excluded if involved in a significant fashion with recommendations as to merit increases, or with salaries of senior staff; routine involvement in the admin of CA wages will not justify exclusion. (v) recruitment and selection: recruitment of staff from outside organization does not necessarily have the confidential aspect. But a personnel administrator who is concerned with internal staff competitions, promotion and appointments may well be in possession of information such as to justify exclusion. (vi) staff counselling: career counselling or similar functions not enough. Staff counsellors who are of the ‗father confessor‘ sort who are entrusted with confidential information of a highly personal kind will be excluded. (vii) organization and planning: may well be in possession of confidential information of the type, which we are concerned with. (d) Illustration Greater Victoria Hospital Society and Hospital Employees Union (1988) Facts: reconsideration of decision which excluded ‗fire safety officers‘ from the definition of employees as they were persons who were ‗regularly and materially involved in personnel matters‘. Background: security employee treated differently - in many jurisdictions they are excluded totally. Not the case in BC where since 1972 they are employees and in most case pretty low level employees. Issue is do you stick them in with other employees or do you create a separate bargaining unit - historically this was the only question. 4 -Doctrinal - if all they do is ‗watch and warn‘ then normally included in bargaining unit with 9 other employee; if beyond that - say admonishment, covert surveillance; search lockers, personal searches - they would be in separate bargaining unit. -Up till GVHS no one had thought to argue the confidential aspect. Analysis: Original Panel: -Functions they exercised: authority to arrest employees; suspend employees; investigate theft and other theft related misconduct; security with respect to narcotics; monitor and carry out surveillance; gather info on a confidential basis; may act as witnesses and give evidence against employees; during labour disputes they maintain security of employers premises. -They held that they should be excluded under the personnel branch as there was a conflict of interest. However they never considered the separate bargaining unit question. Reconsideration: -personnel exclusion contemplates you are part of management team. Security officers are not part of that team. Have no authority to make judgement or effective decision making. COI found by original panel can be accommodated by putting them in a separate unit. Comment: How do you reconcile with Burnaby Hospitals? The employee there was involved in counselling, monitored absenteeism, made judgments re sick leave abuse and she was excluded. Kil says that if she had just had access to confidential info the decision would have been different. Se make judgements so she was excluded. -However, if you look at the fire security officers (surveillance, confidential info, power of arrest; initiate significant discipline - by making allegations) there seems to be substantial decision making. -Why the difference then? (i) maybe if there had been more staff nurses - in Burnaby there was only one and you can‘t really have a separate unit of 1; (ii) 15 yrs of jurisprudence which allows security officers to enjoy CB in separate bargaining units and there has never been a hint of a difficulty; (iii) if allowed original decision to stand you probably had 100 unionized security officers and the effect would have been to decertify them. -Note that this wouldn‘t have been the same result in other jurisdictions. Burnaby General Hospital and Registered Nurses Association of BC (1978) Facts: Whether M who was a staff nurse should be excluded from definition of employee. Focus of case is on the ‗personnel aspect of the confidential exclusion. Her job is directed to the health and welfare of the hospital staff, and concerned for the most part either preventative medicine rather than acute illness. Objective of her job is to minimize staff absenteeism and reduce lost time and consequent cost to the Hospital. Part of her duties is to monitor the frequency and character of reported absences due to sickness and injury. Analysis: -she could not be excluded on the labour relations branch of the confidential exclusion. -rationale for exclusion is to ensure healthy and meaningful arms length relationship between employer and the trade union. As such the bargaining unit must not contain persons whose inclusion would be in the adverse interest of the parties. -concerned only with functions that are a substantial and regular part of a person‘s job. -legislature meant to equate the term ‗personnel‘ with employee -As a general rule those so employed will be person regularly and materially involved in personnel matter such that they are entrusted with confidential info about employee and must act upon it discretely. The information will include facts of a character with if divulged or misinterpreted could impact upon the relationship b/e the employee and employer, or for that matter between the employee 5 and his fellow employees. Finally the person receiving the information will be responsible for making 0 judgments about it, as opposed to recording it or processing it in a routine way. -M is privy to confidential information in such areas as alcohol and drug abuse, marital difficulties and other intimate concerns, and according to the job description much discharge her responsibilities w/o compromise, notwithstanding the character of the info. -M operates with considerable independence, and her discretion is such that certain of the infromation she receives may apparently be revealed to no one. -Concludes she is employed in a confidential capacity in matters relating to...personnel. Highland Valley Copper Decision B289/98 (5-22) -1,000 employees in the present bargaining unit -page 5-25 , 4 general foreman, 5 senior, 60 regulars Role of Foreman: -Hiring: significant role in hiring [reconsideration: hiring role is not significant: (Kilcoyne: the mere right to pick from 4-5 is so narrow that the foreman‘s decision was not really that significant because the management were really indifferent about who of the 5 were hired -Grievances: play significant role in ensuring that disputes do not get to the grievance level) -step 1: foreman is involved -step 2: even though the foreman was involved, formally, the superintendent made the final decision (2/3 of all grievances are settled at this level) [reconsideration: foreman‘s role is limited because it is really about operational disputes, not statutory interpretation; Kilcoyne argues that superintendents will defer to the foreman‘s decision] -participation in CB? [mere] input [reconsideration:--------] -discipline: -responsible for investigating all disciplinary matters; -only investigated job-related misconduct, not non-operational, or theft (this was dealt with by the industrial relations department). -imposed discipline according to a table of ―progressive discipline‖ (ie, first offence: written warning; second similar offence: 2 day suspension; third similar offence: 2 week suspension; fourth similar offence: termination) d. Conflict of Interest Standard (5-30) Note: (1) s. 29: you can still be an employee and be excluded from CB because of a conflict of interest (2) the test was ―is there a potential conflict of interest?‖; [the reconsideration panel changed this test to: ―is there a sufficient conflict of interest?‖---this change prompted two members to dissent from the decision (the two were both management lawyers and subsequently, this decision has been opposed by management) (3) what was really at stake? whether the 60 foreman were going to be part of the bargaining unit or not the multiplicity of bargaining units (want to promote industrial peace and prevent whipsawing); another issue that I need to get from Jude if all the regular employees (1,000) go on strike, then the excluded employees can work in the event of a strike (there is a ban on replacement workers, and even if there wasn‘t where would you get 1,000 miners at the ―drop of a hat‖?) although not talked about, this consideration is always present: access to CB; ―you can‘t play the game, and you are now a Col employee note: s. 29: the mere fact that there is a trade union does not mean that you are an ―employee‖; Kilcoyne argues that you should : 1) step 1: VGH and Cowichan factors for determining status of worker as ―employee‖ or not. 5 2) step 2: s. 29 considerations: seriousness of the potential conflict of interest (if it is really serious, 1 exclusion; if not, then call them an employee and create a separate bargaining unit)…this is where problems have arisen with respect to this case and double bargaining units are created. Kilcoyne argues \ An Additional Ground for Exclusion: The Management Team Concept (5-31) Highland Valley Copper Decision B289/98 Cowichan also considered the ―management team concept‖; described as a narrow exclusionary ground which arises separate and distinct from the issue of managerial status; the basis of the exclusion is that of potential conflict of interest. but not from BC Ferry, it is based on other special characteristics that place a person in a position of potential conflict with employees in the bargaining unit and, as the flip side of this coin, establish a specific community of interest with management CONFIDENTIAL EXCLUSION (5-31) Confidential Information’s two exclusions: Labour Relations and Personnel (1) Rationale: Labour Relations: Conflict of Interests Personnel: Conflict of Interests & privacy concerns: a board would rather not have a situation where two persons in the same bargaining unit (2) Criteria: (a) Narrowly construed (b) Confidential Position (i) must be confidential labour relations information (not stuff that the union already has access to) (ii) prejudicial (iii) access to info must be regular and substantial part of the job (not sufficient if it is fleeting or fortuitous) (c) Personnel access plus decision making (d) Employer Obligations Alma Mater Society and Office and Technical Employee‟s Union, Local No. 15 (Decision No. B222/98) 5-31 Rai is responsible for performing confidential secretarial work shares an office with an executive secretary (who is a bargaining unit classification) and they cover each other‘s absences work 9 day 70 hour fortnight (the only flex employees in the office) Rai takes minutes of the student council meetings Rai does not function as a manager and has little involvement in confidential matters relating to labour relations and personnel 5% of time working for general manager of AMS, Peets, 70-75% attending to Student Council matters and 10% working for other managers formats Peets documents 6 grievances processed in 1997 and 1998 applied for membership in the union on June 3, 1997 since applying, no labour relations work has been assigned to Rai by Peets Analysis: (1) s. 1(1) Labour Relations Code employee exclusions: manager and superintendents; or confidential advisors 5 (2) The Corporation of the District of Burnaby 2 type from page 5-37—5-39 held: Rai‘s community of interest rests with management because she cannot be readily and reliably insulated from a potential conflict of interest. D. TRADE UNION (5-40) 1. Institutional Requirements (a) definition in s. 1(1) (b) 4 technical requirements [Jensen Mushroom Farms] (i) there must be a viable organization that can assume CB obligations; (ii) the organization must have a provincial presence in order to ensure that there is an entity against which board orders can be enforced; (iii) the organization must have, as on of its purposes, the regulation of employer-employee relations. This requirement is generally satisfied by an express stmt to this effect in the union‘s constitution; and (iv) the organization must have a properly drafted constitution which has been submitted to, and adopted by, its members. 2. Disqualification (a) s. 31(b) refers to discrimination contrary to the Human Rights Act - is focused at discrimination in the constitution and is really an historical relic (b) definition of trade union in s.1 and 31(a) excluded employer influenced/dominated organizations trade union. Arises when the board is confronted with a home-grown, in-house association; fear is that it will be a ‗tame‘ association and will enter into ‗sweetheart deal‘ in order to forestall an OD by an independent union. This type of conduct by an employer would be a ULP under s. 6(1). Don‘t get into this with established trade union‘s Rempel Brothers Concrete Ltd. and Fair West Concrete and Construction Supply Employee Association (1976) Facts: T1: pre-73 Teamsters go to the work site and gets 14 drivers to sign up - no formal certification process but goes to employer who signs letter of understanding and agrees to be bound by the industry standard. [aside: note that you can have voluntary recognition - but you will not have all the CB rights] T2: some time later there is an OD T3: employer finds out about labour drive and Doug Enns (a union organizer) is fired and ULP filed T3: ULP goes before LRB and LRB orders Enns reinstated. A notice appears on the bulletin board that we don‘t like the teamster and don‘t want to K with them. 34 employees sign it. T5: 23 employee rent hall and hold a meeting after work T6: Association formed, constitution created and directors elected. Constitution is posted on an employer bulletin board. T7: Association OD. Employer agrees to ―dues check off‖ (piece of paper whereby employee agrees to have employer take off money to pay union dues) while in midst of drive by Association. T8: application for certification. Teamsters appear as an intervenor and argue that the Association is employer-influenced 5 Analysis: The immediate decision not to certify was based on technical grounds - constitution was not 3 submitted to the membership for approval -Was the Association employer influenced? The Board doesn‘t answer. -the use of company property for the posting of notices was suspicious -dues check was also suspicious – this goes to the notion of employer preference: would employer have made same accommodation for the Teamsters? -when employer indicates preference for one association or union it is suspicious -dismissal of Enns shows anti-Teamsters attitude. Could have been raised. Firing was an object lesson for others who were considering the Teamsters and thereby influencing decision to join the association -bulletin board - public to the employer - if don‘t sign form, particularly given Enns, you may be a teamsters supporter, and you will be fired (even though Enns was reinstated, there was significant harassment and he quit) -potential for evidence of direct employer involvement - hire lawyer to set up association; no ones know where $ came from; no evidence that employer paid but lack of knowledge as to where it came from is suspicious Comment: If this were before a board today they would see it as employer influenced -very next day they put the constitution to the employees; re-filed for certification; the Teamsters came forward again - BOARD said that there was some clear indication of employer bias but not ULP. -if was employer influenced what would Teamsters have wanted? access to employees, right to appear to make pitch; access to notice board; any cost incurred during OD -Why did board say no ULP? whatever might have been it is too late; workforce (the majority of the employees) want the association and do not want the teamsters - why defer the inevitable? -# signing cards is not that important but the fact that 23 paid money and went to work after meeting shows a high level of commitment from 2/3 of workforce. Virtually no Teamsters support. E. EMPLOYER (5-46) 1. General -most situations under this heading deal with the situation where the ostensible employer has work done by persons who are formally employed through a third party, typically an employment agency -‗avoidance‘ - ‗true employment agency: (a) some are agents on behalf of real employer; but (b) in most cases the temp workers remain employee of agency - employer is a contractor; - ‗leasing‘: Nationair - virtually no evidence of it in Cda -leading authority for identifying the ‗real‘ employer for CB purposes is York Condominium Corp which was endorsed by the BC board in Kelowna Cabs Canadian Air Line Attentendants Association and Nationair (1988) Facts: Nationair is a newcomer to the airline scene. Offers cut rate discount fairs. Moves to Cda and ia aware that unionisation in the Cdn airline industry is extremely high. Decides to lease its workforce. Enters into K with two agencies who will hire the workers. Organizing drive by union get majority of employee support but who do you call employee for certification purposes? Analysis: -not really a tough decision. Straightforward case - determines that Nationair is the true employer -who has the power of ‗effective determination‖ -board will assess the factual situation but will not give decisive weight to agreement where they are not confirmed by the facts 5 -remuneration - it is immaterial who issues the pay check per say - Nationair bore the cost 4 -Who controls access to employment? On face the agency hired and interviewed but Nationair provided very detailed list of qualifications and kept the right to veto for themselves -establishment of working conditions - who supervises (most ‗true‘ agencies say you deal with us not the employee directly). This was not the case here as there were a # of examples were Nationair disciplined directly. -actual performance of work - required to wear Nationair uniforms and identify selves as Nationair employers -other criteria - nature of employment - it was permanent secondment; full time work; perception of the employees; degree of integration into the company -it is essential that the above criteria be weighed without losing sights of the purpose of the legislation, namely to promote access to CB. 2. Common Employer: Section 38 -this section provides that where two corporations are subject to common control or direction, the board may treat them as one employer. In the vast majority of cases, this allows the board to ignore the concept of ‗separate personality‘ in corporations CHAPTER 6: PROTECTING THE RIGHT TO ORGANIZE A. INTRODUCTION 1. Historical (mid 1800 - 1930) most common employer response was to ignore the union and nothing more (except for the select firing of key union agitators) spies were used to some extent strike breaking if things got bad response from the union was a ‗recognition strike‘ everyone would down tools and the strike started. Either the strike would whither or there would be voluntary recognition by the employer pervasive and extremely expensive 2. Wagner Act modern compromise 3. Assumptions most employers were not enthusiastic about trade union opposition from employers would be effective 4. Responses developed certification - administrative process for union recognition. This is unique to NA. Continental Europe tended to rely on strike/lockout for recognition. prescribed certain employer conduct and prohibited certain conduct 5. Code s.4(1) Every employee is free to be a member of a trade union and to participate in its lawful activities. s.6(1) catch all ULP - interference with formation of trade union is prohibited s.6(3) specific ULP Note that we will talk about ULP almost exclusively in terms of certification/od but s. 6 ULP complaint can occur at anytime 5 5 B. EMPLOYER UNFAIR LABOUR PRACTICES 1. Employer Interference Generally (a) Code s.6(1) non-interference section which is broadly framed and, on its face, prohibits conduct which might also be caught by some of the other more specific subsections of s.6 -it is quite common in ULP cases against employers to allege violations of several sections of the Code, including s.6(1) which could be regarded as kind of a catch all (b) Rationale -employees are entitled to freedom of choice about whether they wish to have a union respresent them as their barg agent, and about which union they want. True freedom of choice requires the employer to remain aloof and not attempt to sway employees -assumptions - employees are susceptible to employer influence because of the employer position of power over them; and employers are likely to attempt to dissuade employees from exercising their stat right to organize - additional benefits will have to be paid if they are unionized and they will lose management flexibility -s.6(1) supports other sections of the code. The definition of trade union in s.1(1), and the bar on certification in s. 31(a), attempt to ensure that unions that are in the ‗pocket‘ of the employer cannot be certified, s.6(1) makes it a ULP for the employer to seek to create such a toadie. Either through employer dominated unions or by favour one legitimate union over the other as in Excel Electric Ltd. where the employer gave the favoured union a employee list and encouraged its employees to support that union. 2. Discrimination/Discipline/Discharge s.6(3)(a) - s.6(4)(a) -sometimes just referred to as discipline and discharge but it is broader b/c of discrimination against ‗person‘ - hiring, promotion (a) Intro: (i) General s.6(3)(a) - generally no discharge, discipline, or discrimination because they want to be a member of a tu, are a member of a tu, or seeks to induce others to join; or because they participate in the promotion, formation or admin of a tu. This section is the ‗key bulwark‘ against employer reprisals -note s.6(4)(a) provides that nothing in the Code should be interpreted to limit or otherwise affect the right of an employer to discharge....discipline an employee for proper cause, or make a change in the operation of the employers business reasonably necessary for the proper conduct of that bus. (ii) Rationale - why ULP? -interest of individual employee who was fired -individual who was fired is often at the heart of the OD and firing would have been meant as an object lesson and would have a significant ‗chilling‘ effect -s.6(4)(a) means it is understood to still be a workplace and the discipline may be essential for productive purposes (iii) Procedures -discipline is ordered - a written complaint is filed with the Board and served on the employer; Board sends out Investigative Officer (IO) to investigate and mediate failing mediation the IO reports to the BOARD; if the report says that discipline is ok the Board has discretion to dismiss the complaint; can go to hearing 5 s.5(2) - if it is a non-union workplace and person disciplined, suspended, transferred, layed off - 6 there is a requirement of a hearing within 3 days and decision within 3 days. This would likely occur in the OD and would be done as an object lesson to the other employees. S.6(3)(b) makes this a ULP if it done for any reason other than just cause (iv) Remedies -reinstatement with back wages is the normal one -in really egregious cases you may get automatic certification or contract but these are discretionary and very rare (b) Doctrinal Position: (i) discipline for any reason in the Col work situation (ii) any taint of anti - union animus is fatal. Any taint will viciate any degree of legitimate cause that was present. Rarely direct ev of ‗AUA‘ most often located by inference (ii) onus is on the employer to establish that there was no breach of 6(3)(a) or (3)(b) [s. 14(7)] (iii) criteria: 1. knowledge of OD by employer 2. any other anti-union conduct beyond what is currently impugned? 3. incongruous reaction? 4. credibility of witnesses - this tends to be the most significant Barrie Typographical Union and the Barrie Examiner ON (1976) Facts: Robb was the publisher. Scott was a reporter/photographer. S‘s camera was stolen, no insurance, bad words were exchanged between R and S. Grounds for insubordination and clearly good cause for discipline at Col. Despite good cause the board finds anti-union animus so the complaint is upheld Analysis in terms of criteria: -the employer clearly had knowledge of the OD -anti-union conduct? R was interviewing employees and mentioning the harm to their career that would be caused if unionized S was singled out - told that if they unionized his pay raise would not be forthcoming; told to use his influence to disuade others there was a radically change in the policy about banked overtime the day before the vote after the vote they started to use formal discipline -incongruous reaction? he was an above average reporter; it was unusual he didn‘t get a second chance profane language was not unusual in this workplace outburst took place in a closed office and no other employees were present -credibility the board didn‘t believe R nor S completely but they remarked on the lack of candour showed by Robb -Board concludes that there was a tie but under s. similar to 14(7) the onus is on the employer and they haven‘t met it so they lose. Complaint is upheld. SEIU and Focus Building Service IRC (1987) Facts: 5 T1: FBS gets K with VCC. F is only to provide full-time workers 7 T2: Org drive/certif campaign [separate issue before the board concluded that the employer interviewing employees during this period was an ULP under 6(3)(d)] T3: VCC complains b/c of part time workers and threatens to cancel the contract T4: the two part timers are fired (day before cert applied for) and a full time worker is hired. The loss of there two was fatal to the cert application Analysis: -on the face of it the union has a strong case the employer had knowledge of the OD employer acknowledged that it had an anti-union sentiment - that it was committed to a non-union shop Board had already found one ULP employer admits it assumed the part timers were union supporters a senior employee thought that the firing was b/c of union -Why the result - NO ULP the last two criteria were determinative not incongruous - they had good grounds/good cause for what they did; VCC would cancel K if they kept the part timers. There incompetence in responding to it worked to their advantage - they were genuinely frightened at prospect of losing the K excellent counsel work in terms of preparing employer witnesses - didn‘t lie or attempt to shade the truth re: anti-union but that wasn‘t why we fired them - worked to enhance their credibility -Board concludes that the employer discharged their onus of showing no anti-union animus Comment: Kil is tempted to add fifth factor to the above list of criteria even though it is not a doctrinal requirement, namely cause for discipline. The easiest way to show that there was no anti - union animus is to show that there was a real good reason for what they did; the greater the justification the more anti-union sentiment it can have and not run afoul of s.6(3)(a). Terminology distinction emerges from Focus - sentiment vs. taint. Sentiment ok if you have cause for the discipline but taint is never acceptable. (c) set up for considering s.6(4)(a) recall that this section provides that nothing in the Code prevents the employer from discharging, supending, transfering, laying off or otherwise disciplining an employee for proper cause. what is meant by ‗proper cause‘ comparison of legal position under Col and under CB(CA) is necessary Col CB (CA) Terminology cause or just cause just and reasonable cause Grounds loyalty, fidelity, etc same as Col - diff is in the degree to miscon; higher under CB to justify Employer 1. dismiss sum*; 2. lat can be any penalty w/i some limits; Response transfer progressive discipline - first offence near bottom and further offences you move up ladder; serious infractions don‘t need progression 3rd Party Review wrongful d - damages; RN arbitration: WmScott criteria -just and reas cause for some discipline? -what is approp penalty? arb can sub penalty -criteria for appropriateness: seniority; past work record; discipline record; explanation; anything else which appears rel to arb 5 *unless K for alternate form; you are starting to see implied 8 agreement for somthing less 1st part of 6(4)(a) does not expand powers of Col employer (suspension, transfer, layoff etc) - just reread to just ‗discharge for proper cause‘ on face means right of employer to impose discipline on Col grounds is not effected where no CA - problem is that lower standard of misconduct is required to justify under Col. Does context of OD drive require greated misconduct b/c you are moving toward CB? (d) Meaning of Proper Cause in s.6(3)(b) (i) this section prevents an employer from discharging, suspending, transfer, laying off, or otherwise disciplining an employee except for proper cause when a tu is in the process of conducting a certification campaign. Can be hard to tell when the OD begins (WhiteSpot case - Board may even conclude that it started when J called CAW) s. 6(3)(b) temporarily suspends the employer Col right to dismiss by giving RN (ii) Task Force recommended this section be included to ensure that employers don‘t interfere in the OD and the task force felt that this section requries the employer to establish that the action was taken as a result of improper conduct by the employee (iii) Illustration White Spot Ltd. and CAW BC 1993 Facts: T1 employee Johnston (J) contacts the CAW T2 OD starts T3 J drinks wine - co-worker observes and reports it to the manager - no response T4 J drinks wine this time she takes a plastic cup and straw. Co-worker gets cup and straw from the garbage and goes to the manager T5 Manager learns that J is key person in the OD T6 Next day he fires her Analysis Original Panel despite suspicious circumstances they find no breach of s. 6(3)(a) there was knowledge of OD; no evidence of anti-union campaign; no organized campaign between the co-worker and the manager co-worker hated J incongruous reaction - how has employer treated theft before? - is discharge the normal response; union had some argument re: lack of previous enforcement of the no drinking policy but no alot why did mgr not respond at T3? Union says that the only change is key change in OD. Employer gives two justifications: (i)gave her a break on the first violation. This is a tough argument to make given that there normally response for theft was capital punishment; (ii) aware of animosity between J and co-worker so they devalued the first report, physical evidence second time, also the use of the plastic cup, lid and straw seems to indicate that she knew it was wrong and tried to hide it. Union was unable to find another theft case where ther wasn‘t dismissal Manager must have been outstanding witness s. 6(3)(b) analysis context to which this section applies is a cert campaign. Assumption is made that campaign would be successful. OD involves a move from Col (ab right to dismiss) to CB (cause for discip; penalty appropriate [Wm.Scott] 5 We are in between the two extremes so we can look to see if there is cause and if the penalty was 9 ok but not to be full blown CB analysis Theft is clearly a ground for discipline Was the penalty appropriate? 8 yrs seniority; excellent employee; spotless discipline record; mitigation factors - stress in being the key person in OD; de minimus - value of the wine that was consumed; some ev that emes in the past were given retroactive permission to drink wine Concludes that the penalty was disproportionate and substitutes its own penalty. Orders reinstatement from the date of the panels decision which is effectively an 8 month suspension. Panel did this from the same pt of view that as an arbitration board Reconsideration Panel Analysis reached the same conclusion that there must be some mid point but says that despite what it said the original panel applied a full blown arbitral standard said that this falls somewhere between the Col and the arbitral standard apply 2 part test: was there some cause for discipline and was the penalty appropriate look to see if there was a rational connection between the misconduct and the penalty applied however we will not subsitute our view on what penalty should have been unless: (i) the employer failed to consider a persuasive mitigating factor; or (ii) the penalty was out of all proportion to the conduct application to Johnson theft can support termination - so that is a rational connection penalty - not sure how much ev was put before the board that Whitespot looked at mitigating factors - but they must have we think it was excessive from an arbitral point of view but at this point we will leave it alone because you have not reached the full CB stage yet Comment: decision was remitted to the original panel to apply the proper test - they affirmed their original finding that there was no anti-union animus and accordingly that there was ―proper cause‖ for Johnston‘s discharge. (e) General Comments -Important to note that lesser forms of employer conduct (lesser than discharge) can be caught by 6(3)(a) and (b) -employer actions against a group of employees can also be caught -remember that aside from 6(3)(b) the prohibitions or ULP in section 6 apply throughout the employee- employer relationship. 3. Employer Communications During the Organizing Period (a) Statutory Provisions (i) s.6(3)(d) - prohibits employer or person on behalf of employer from initimadating or threatening employee to convince them to stop being or not become a member, officer or rep of a tu. (ii) s.9 - broadly worded section about coercion and intimidation which can be applied to unions as well as employers. -most actions will be found to be a contravention of both (iii) s. 8 - nothing deprives a person (includes union) of the freedom to communicate to an employee a statement of fact or opinion reasonably held with respect to the employer‘s business (b) Rationale 6 -ULP provisions do place a significant restriction on what employers can say during OD 0 -reason for doing so relates to the perceived vulnerability of employees -NLRB v. Fedderbush Co. Inc - Justic Learned-Hand stated statements by an employer have a force of independent persuasion. 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 is not safe to thwart. Focus Building Service Ltd IRC 1987 Facts: complaint under s.6(3)(d) Analysis: -Keep in mind these 4 questions: (i) who is speaking - power/authority; was person in position to give reward/penalty in this case it was Howie the resident manager. He had authority regarding worksites, tasks; by the time to OD was going on he was the previous residential manner; he had good rapport with employee. Board reads something negative into that choice - not clear to Kil what is wrong with it - Board says that it evidences a clear intent by the employer to influence employees reliance on interpreter - the interpreter would have been in the barg unit if th eOD was successful. Disclaimers of personal endorsement should have been made (ii) what did they say? no lies or half truths were told no threats Board says there may have been promises or rewards because depending on which locations you work at you get a better wage statement ―don‘t let anyone influence you‖ could only be interpreted as refering to the union *(iii) when did they say it? location: work site or not, employer territory? it was the work site here timing: during work hours - yes had a captive audience configuration: 1 to 1 or greater numbers. 1 to 1 provides more chance for influence. Here it was both *(iv) whom did they say it to? level of vulnerability/susceptibility is what this is directed at unique employees - labour relations knowledge - in a heavily unionized area the employer could say more as employees are less susceptible to employer influence characteristics of audience - immigrants; new Canadians unique circumstances - in Focus employee were recently threatened with dismissal [totally unrealted to OD]. Stmt in this context would have heightened sense of vulnerability/susceptibility -by the time of the hearing there had already been the representation vote but the Board had the ballot sealed until the outcome of this case was known -board finds that Focus did commit a ULP Remedies -what remedial orders would you request? Some assessment is necessary because of the swing with the loss of the 2 part timers. (1) new vote; (2) auto cert - arg that ‗but for‘ the employer ULP we would have signed up majority of employees - in reality this would only be ordered where there was really outrageous conduct by the employer; (3) cease and desist communications; (4) distribution of the board‘s decision; (5) equal access to employees on captive audience basis. -The board ordered that the union was to have the right to address the employees at work site during work hours for 20 minutes. This was not an outrageous ULP -OD failed in the end 6 Comment: This case involved a section of the Code which no longer exists which potentially gave the 1 employer more opportunity to express its views. After the repeal of the section some have argued that there has been a return to the strict neutrality standard. Perhaps the following quote from Weiler in Forano is once again the standard: ―the safe course for an employer is to remain an interested bystander, to resist the temptation to become an active partisan in a campaign against a union. The decision should be left up to the employees, both who are for and those who against the argument of the union‖ American Airlines v. Brotherhood of Railway, Airline and Steamship Clerks (1981) CLRB Facts: complaint under s. 6(3)(d). The communications in question were letters written directly to the employees and an interview/rap session with a group of employees Analysis: -who: actual authority to shut down reservation centre; high in hierarchy, considered to be the decision making authority -what: rap session - repetition of some things in the letter; letter - Kil doesn‘t see it as too extreme. There are references to other airlines who were unionized that shut down and moved to the states. Could be seen as a threat. Easier to find the threat possibility when the employees reaction is taken into account. (in fighting, nasty comments to the organizers, employees in a near hysteria about job security) -when: capitive audience, groups of 10; letters were mailed to their homes -to whom: employees -Board found that it was a ULP Doctrinal Outcome: -Now there are two types of allowed communication: (i) communication necessary for the management of the operation - order (ii) responses to ‗propaganda‘ - can respond to unequivocal and identifiable statements if they are libelous/adversarial. [becareful because of (iii) you basically respond at your own peril] -‗unequivocal‘: absence of weasel words; not enough it the tu suggested that we might be considering closing down. Intimation is not enough -‗identifiable‘: made by union rep or authorized by the union in situations where they can identify that -‗libel‘: fairly clear -‗adversarial‘: statment directed specifically at the employer. Eg. vote for us b/c employer is going to contract out your jobs. AND (iii) anything else is not permitted. The employer must maintain strict neutrality. Saying that you don‘t want union is not neutral. Best advice is not to say anything. Remedy: -they are not to be punative; it is to be remedial; the distribution of the board‘s decision is more common in other jurisdictions than it is in BC. -The employer openly and publicly stated to all its employees in the reservation centre its opposition to their becoming unionized -there the board ordered a letter to be written on company letterhead and signed by the Vice- President. It was to be sent to everyone employee at home. Text of letter was prescibed by the board - it was to state that the employer had notice of the OD two days before the letter was sent; note the letter that was sent expressing the company‘s view; and state that the CLRB found it to be a ULP and a violation of the code and that the decision was enclosed. Employer was not to add or detract from the contents of the letter and was not to add anything to the envelope. 6 4. Employer Manipulation of Working Conditions/Statutory Freezes 2 (a) General Rule: Under the Col the employer can‘t unilaterally alter important terms b/c of CD. However as a practical the employer does have the right to make changes - can do this by K; or can give employee notification of the change and say if you accept it fine, if you don‘t, consider this as ‗x‘ months reasonable notice. (b) Qualifications under the unionized regime: want to enable the employer to make changes but want to ensure that they are motivated by business concerns and not anti-union animus. -Code sections: s.6(3)(d) - limits the employers right to alter terms and conditions for particular purposes (i.e. to compel or to induce an employee to refrain from becoming or continuing to be a member or officer or representative of a tu). This is an objective and subjective section. Can happen at anytime. Balancing of intimidation or influence. Rationale: provision is based on the understanding that the employer is in a position to use either ‗the carrot or the stick‘ (fist in a velvet glove) approach to encourage employees not to join a union. Could grant benefits or deny benefits to forestall unionization. s. 32 - statutory freeze which covers the time between cert application and decision. No alteration of T & C until the certification application is decided. If employer needs to change it can apply to the LRB for permission. Rationale: during OD want to avoid employer manipulation. Intended to preserve the status quo s. 45 - post-certification statutory freeze. If certification is granted there is an automatic continuation of the freeze on terms and conditions of employment for up to 4 months. Employer can apply to board for permission to change. Note that if certification is not successful s. 45 doesn‘t arise but 6(3)(d) may still be relvant (at some pt though the board will decline jurisdiction) Rationale: parties are negotiating - CB - gives the parties breathing space and a fixed framework from which they can negotiate a CA. (c) LRB consent (d) Goal is to preserve the status quo (e) Business as usual idea employerges from the SFU decision Simon Fraser University and Teaching Support Staff Union BCLRB 1979 Facts: T1: OD of student lecturers T2: SFU sends letter to sessionals which says that the Faculty salaries are being negotiated and the benefits from that will be passed on to you T3: LRB determines that the appropriate barg unit (ABU) includes the sessionals. The board has authority to carve up how the employees into groups. T4: Letter from SFU which withdraws the wage increase indicated in the letter. Union could have filed a ULP complaint under s.32 but doesn‘t T5: Certification is granted T6: 6 months later they are bargaining over the 1st CB. Assume that the sessionals were getting $10 and the faculty got a 10% increase. Union decides to negotiate from $11 and the employer started at $10. T7: Union files alleging breach of s. 32. 6 Analysis: Board articulates the business as usual test. If business as usual was to give improvement that 3 is part of the status quo so the withdrawal of it was a change in the terms and conditions of employment so was a breach of the stat freeze. Employer was obligated to continue that term or condition. Comment: the employer tried to argue that they rescinded in compliance with s. 32. The Board didn‘t buy this argument as the employer could have applied to the Board for permission for the increase and they didn‘t. Indeed they indicated quite clearly that they had no intention of asking for permission. Message from the employer in rescinding the original offer was clear - b/c of your possible inclusion in a union, you will not be given the gereral University increase. Tamblyn Drug Stores 1977 Facts: OD - June 27; T tells employees that they will receive the following wage increases: July 1/75 - 15%; July 1/76 - 10% and 6 months later Jan 1/77 they will get 10.5%. Reason for doing this was that their major competitor is unionized and had just concluded a CB. Tamblyn increases were identical to those achieved by the union at the competitors site. Union files s. 6(3)(d) complaint Analysis: -know of OD? - yes -anti-union animus - no -incongruous reaction? past practice re wage increases - had given increases before and evidence that they had looked to pharmacy mkt but they had never matched exactly before. Wanted to remain competitive as an employer - show that is what other people are doing; show problems with recruitment and retainment at lower wages or you will have problems. They couldn‘t show this type of evidence in this case. poliy of annual revising of wages but they had always done it at year end this was not normal time for it. three year deal was different -Board had difficulty with the recruitment of employee argument as these were not specialized skills, there was no shortage of potential workers -Found breach of s.6(3)(d) Remedy: union would want/asked for a roll back of the wage increase. Board said that it is not practical to make such an order. They did order that the subsequent changes be rescinded. (f) Problem Facts: T1: VCC hires its own cleaning staff T2: OD of cleaners only T3: during the OD, VCC decides to contract out the cleaning T4: Lay off of cleaning employees Potential Heads for Union to Claim under: -If the union files a ULP they could claim under s. 6(1); s.6(3)(d) and s.6(3)(a) - shall not discrimination, discipline etc. and s.6(3)(b). s.6(3)(b) provides that no employee shall be disciplined w/o proper cause. What is the problem with 6(3)(b) for the union? Section provides that employer shall not discipline w.o proper cause and in addition it says that employee shall not be laid off w/o proper cause. Layoff is not discipline so what does ‗proper cause‘ mean wrt layoffs? Probably use s.6(4)(b) which says that the Code shall not be interpreted to limit or affect the right of the employer to make a change in the operation of the bus reasonably necessary for the proper conduct of that bus. Show you have good/legitimate business reason for the layoff. s.6(3)(d) - employer clearly altered T & C. Employer defense is again 6(4)(b). -So regardless of which section the union uses you would be into an analysis of s.6(4)(b) 6 Analysis 4 -Why did VCC k out? To save money -knowledge of OD? Yes -Pattern of conduct? No -Incongruous reaction? Why K out now (in Od) and not a year ago? VCC would likely say that if they became unionized wages would go up so based on that assumption we laid off. -Kil says that this is not union busting, it is saving $. There is a difference between legitimate anti-u and illegit anti-u. This is legit as they are only doing it to save $. Section 6(4)(b) says that nothing in the Code stops employer from making efficient business decisions. Changes to the facts: (1) What if VCC decided to K out before T1, any problem? No as long as they gave reasonable notice (2) What if the OD was successful; certification granted and a CA is concluded and then VCC k‘s out the work? -Layoffs in CB are done according to the contract: if the K is silent there is no problem at all as the employer has the management right to lay off. Statistically less than 4% of CA include ban on K-out however most do say that you can‘t k out existing work which would result in the layoff of regular employees. -What if VCC had one of the no K out if to do so would result in lay off of regular employee clauses? Long term strategy of relying on turnover to decrease reliance on regular employees while increasing reliance on the K‘d out to firm. (3) On the original facts there was no restriction at all so lay off employee and K out to Focus. In the past this would have been a ULP. Not so now because the union had the option to put in the ban or restriction and it didn‘t. In effect the union is put on notice of management rights so knew where they stood; or should have known about arbitral jurisprudence and put it in the CA. They didn‘t so it is not a ULP because union had a chance to deal with it before hand. -Pure cost saving is not enough but coupled with grave danger to company it may be a significant enough of a good business reason -certainly legitimate if the union had concluded first CA but note that there is a duty to barg in good faith - notify employee of impending changes. In the context of letting the first CA go ahead and knowing that you were going to lay off and using the lack of ban or restriction on K out to your advantage you could be in violation of this duty C. UNION UNFAIR LABOUR PRACTICES 1. Limits on Union Conduct and Union Speech in Organizing (a) Code s. 9 broad coercion and intimidation prohibition applies to both unions and employers limits what the union can do to win the hearts and minds of the employees. standard of application to unions is less than what employer would be held to; assumption of community of interest options if section breached: Board can issue cease and desist. If clear misrep/threat: (i) if made to only one employee and 499 signed cards the impact of the misrep would be slight so the board would likely ignore, subject to the cease and desist; (ii) if serious physical threat they are not likely to let it go - give employees costs; damages award or something else. If it is a concern the Board could order a vote on representation. 6 5 (b) Types of Conduct: (i) Threats: physical economic - may contravene s.9 general (ii) Misrepresentation - may contravene s. 9 courtieria: intentional/innocent source of misrep - union or union rep severity of misrep - fundamentally Important pt audience charad - more misrep allowed if dealing with historically unionized workers/occupation organizing drive - more strict here than in raid case impact of misrep BUT (iii) repetitive and forceful argument is ok outside of a threat the Board tends to say that you should use decert if unionized thru a misrep etc.; or don‘t support the CA - don‘t vot to strike if negotiations are not going well b/c if the union gets 60% or less it is really game over especially if it is a first CA Christian Labour Association of Cda (CLAC) 1996 Facts: Two Delta hotels in Vancouver are represented by Local 40 of the H & R Union. CLAC mounts a raid which uses a secret ballot by the Board to decide who wins. CLAC is not a mainstream union; they are not a member of BC Fed of Labour or Cdn Labour Congress - seen as a ‗rat union‘ which is a union who will negotiate CA below industry standards.. Rat union idea started in the construction industry. The President of the BC Fed of Lab sends a letter to employees which said bad things about CLAC and says that the federation will withdraw its patronage from these two hotels. CLAC files s. 9 complaint against the federation, the president and Local 40 alleging threat of economic reprisal. CLAC says that unions are precluded from using intimidation and economic reprisal is included in this. Analysis: -seems to be a strong case for CLAC -BOARD found no breach of s. 9 - it was close to the line but avoids it because: (i) it is the truth that is being communicated - long standing policy of the federation to only use union hotels for meetings etc.; this was just communication of inevitable economic reality; the policy was not pinpointed at these employees; and (ii) how do you withdraw such a stmt? Comment: -may be arguable that the Board responds differently to different unions - more hands off with bigger/established unions then with smaller/newer unions -react differently to CLAC than other mainstream unions -if this is true it will likely diminish over time (c) Limits on Union Conduct McCallum Motors Ltd BCLRB 1979 6 6 Facts: T1: OD at McCallum. T2: discussion among employees at employer premises where two union supporters said that initiation fee now is $2 but later it would be $40. Straw vote showed majority in favour of union. T4: 13 employees have signed up and the union applies for cert. T5: group of employees get legal advice and registered formal objection and requesting vote b/c the union had misrep and intimidated them (violation of s.9). Despite the charges and w/o a hearing the Board ordered the certification. This is a reconsideration. Analysis: says that s. 9 applies to ‗persons‘ and by definition unions are persons coercion and intimidation are strong words and have sense of compulsion and force, or threat of force inducing fear unlike the employer the union is not subject to the prohibited conduct under s. 6 which seems to require a neutral stance union is entitled to persuade the employees and given the thrust of the Code the union is encouraged to pursue organizing activity so long as its tactics don‘t amount to inimidation or coercion. A union must have a reasonable right to recruit members and sell itself organizer is selling a concept and is entitled to be enthusiastic, he may press his case even to the point of being a nuisance so long as this is not accompanied by compulsion or any suggestion of force or any threat of any kind, for if those elements are present he is now in the realm of s. 9. union should tell employees that they have the right to join or not to join and then they can attempt to persuade them of benefits, through rational, repetitve and forceful argument provided he does nothing that could effectively eliminate the employees freedom of choice no breach here, the union supporters may have been overzealous but they used no force or compulsion or threats to achieve their objective. action was not part of master plan of the union bus agent, he was so ignorant as to be unaware that supporters were pushing the low iniation fee in a somewhat heavy handed manner notion that certain employees were railroaded into a decision they later regretted can just as easily be explained by peer group pressure (d) Limits on Union Speech -can occur during OD - see McCallum -majority of these cases arise in the context of a representation fight or ‗raid‘ Gibraltar Mines Ltd. and CAIMAW and United Steelworkers 1975 BCLRB Facts: The Steelworkers - CAIMAW fight dominated our jurisprudence for a number of years. Steelworker is an international union and the executive controlled all the property including the strike fund. Surge in Cdn nationalism which manifested itself in the tu movement. Prior to this fact situation CAIMAW had just completed a successful raid at Endako - it was in a bitter strike. This is a misrepresentation case. CAIMAW los the representation vote 225 to 219 and wants to convince to Board that they lost b/c of things the Steelworkers said. Stmts at issue: Leaflet from the Steelworkers which said that if Endako workers had stayed with Steel they wouldn‘t be out on a limb and starving. The starving part was a lie. Analysis: Board says that we aren‘t going to get into this. In representation fights we won‘t police the propaganda. Floodgates type of justification - we don‘t have time to hear it all; we will defer to politics and this is essentially a political campaign. Threats would be a different situation board is influenced by the audience characteristics. Unionization of mine workers goes back along way; these employees are more aware and are better able to discount the propaganda. 6 we are dealing with two well established unions who are equal in admin skill and organizational 7 ability. 2. Organizing at Work - Physical Limits on Organizing (p. 6-77) (a) Code s.7(1) w/o the employers consent a tu or person action behalf of a tu shall not attempt, at the employers place of employment during work hours to persuade an employee of the employer to join or not join a tu s7(2) is an exception which empowers the Board to require the employer to allow the union to have entry to its premises in cirumstances where the employee reside on property owned or controlled by the employer (b) Rationale -is an attempt to minimize the potential adverse effects of OD on employer operation -protects the employers private property interest, enabling employer to create and maintain workplace rules which limit union activities in the interest of maintaining safe and efficient production. (c) Doctrinal -place of employment - extends to the parking lot -working hours - refers to actual working hours, not lunch or coffee even if paid. Just because such activity (organizing during coffee) is not caught by the Code and therefore is not a ULP does that mean that employee have a ‗right‘ to conduct such activity which the employer can‘t take away by using its Col property rights? See Cominco -union or person on behalf of union (person must be formally authorized; i.e., receives some support from the union) This does not extend to employees. It is not a ULP for employees to do this anytime, anywhere. Can the employer limit? Does s. 7(1) give the employees the right to do this? (d) Non-Solicitation Rule -can employer impose this type of rule which bans the employee from organizing during work hours or on work property? -Yes if you can establish a bona fide business reason. -cases tend to be all over the place. Generally a rule which says that there shall be no organizing during work hours will be automatically upheld. Beyond that it is harder to establish. Banning it during coffee or lunch is rarely upheld but in one case it was following a series of fistfights between workers Cominco and CAIMAW and United Steelworkers 1981 BCLRB p. 6-78 Facts: CAIMAW (radical bunch of ―commies‖ (Kilkoyne)) was conducting a raid on Steelworkers. Cominco took position that there could be no organization on Cominco property. CAIMAW applied for a declaration that org on company prop other than during working hours was lawful. In the CA there was provision which prohibited any union organizing activity in the workplace, Cominco brought this to the attention to employees and said that there would be disciplinary action if the activity continued. CAIMAW amended application by adding in violations of s.6 and 9 by Cominco. The original panel dismissed the application. This is the reconsideration. Analysis: question was whether clause in the CA could prohibit organizing on employer property outside normal working hours. starting point is s. 4(1) which says that every employee is free to be and member of a tu and to participate in lawful activities. case only concerns the right of the employees not the right of the union to come in (that could only be allowed by employer agreement or under 7(2)) Also does not involve the right of employee to organize on company time (not possible b/c of 7(1) 6 8 Cominco conceded that employees persuading other employees to become members of a tu is lawful activity under s. 4(1) but argues that that doesn‘t give them the ‗right‘ to engage in such activities on the employers property. not unlawful to organize during lunch hour or other work breaks [Jim Pattison Industries] That is only the starting point, although it is not unlawful, may the employer absolutely prohibit such activity on its premises or enforce a provision of a CA in the facts here? section 4 gives the employees the stat right to participate in lawful union activities. It is a very general right. Section 7(1) is an express derogation of that right during working hours. Section 7(2) is not a further derogation b/c it is designed to permit access to persons who are not employees. Employee are on the premises of their employer with the employer‘s permission. Board decided that employee rights under s.4(1) extend to organizing activities during non-work hours at the employers operation. Provision in CA was unenforceable to the extent that it prohibits employee‘s from engaging in organizing activities during non-working hours on the employers premises. Section 4(1) is clear legislative policy and it cannot be contracted out of. the right to engage in organizing activity on the employer‟s premises outside working hours is not absolute, the employer can have compelling business reasons for prohibiting but there were none here. found to be a contravention of s.(6)(1) but no formal order was made as there was no reason to assume that Cominco would not tell its supervisors that organizing by employee outside working hours on employer premises is not prohibited. what constitutes working hours: must be answered in reference to the particular employee. If employee are away from their workstations, having lunch or coffee, we don‘t consider that to be working hours, notwithstanding that other employees are still working. Employee who returns from lunch late b/c of organizing activity is not protected from discipline under 4(1). employers have argued that organizing during working hours may lead to dangerous working conditions; if people are distracted by talking about organizing, they may not be paying enough attention to their job; as well, there could be fist fights during organization discussions. parking lot organization concerns: (1) littering; (2) could get run over by other cars; and (3) could damage employee‘s cars by putting leaflets under windshield wipers (board accepted these) (e) Illustration of s.7(2) Blackcomb Facts: 800 employees, 1/2 of which live in employer accomodation - 4 big apartment buildings. There is OD by the Steelworkers. Union organizers go into the foyer and are met by security guards who tell them to get out. Union applies for access under s.7(2) Analysis: test is that of equal access as if the property were not employer property, as if the employee lived off the work site. First panel granted the order. For 1 month the employer was to grant the union canvassers access to all apartments on Tuesday to Saturday 5pm to 9pm. Problem is that if you weren‘t on Blackcomb property you would only have access to foyer and to get passed the door you would have to ring the buzzer and go to only those apartments that respond. You would have to return to the foyer after each apartment and start again. Blackcomb challenged that to order them to allow access to hallway is beyond what would have happened on private property. Union would be concerned about how the employee would perceive the decision to buzz the person in. Security guards could watch and see who is buzzing them in. 6 9 D. REMEDIES FOR UNFAIR LABOUR PRACTICES P. 6-83 1. Code (a) s. 133 is the general remedial power given to the Board and it is used to buttress its remedial jurisdiction whenever necessary (b) s. 14 is specifically designed to provide remedies for ULP (c) s. 135 provides that orders of the board may be filed in the Supreme Court and are thereafter enforceable as though they were orders of that court. Failure to comply could lead to contempt (d) s. 158 makes it an offence punishable on summary conviction to refuse or neglect to observe or carry out an order made under the Code - individuals fine up to $1000; unions or corp fine up to $10,000 (e) Rationale for broad remedial power - to be effective remedies should be equitable; they should take account of the economics and psychology permeating the situation at issue; and they should attempt to take into account the reasons for the statutory violation. Remedies must be tailored to every case and that is not possible with ‗boiler plate‘ remedies. Allows the board to be creative. (f) General propostions about labour law remedies: (i) remedies are not to be punitive (ii) monetary relief is compensatory (iii) a Collective agreement cannot be imposed (iv) there must be a causal link between the breach, the consequences of the breach and the remedy. [Re National Bank - SCC] 2. Types of Remedies (a) cease and desist orders [14(4)(a)] -Standard in most ULP and may be the only remedy ordered; generally it is not sufficient by itself to provide a full remedy so it is commonly awarded in conjuction with another remedy (b) remedial certification [14(4)(f)] -the board may certify the union if they are of the opinion that the union would have received the requisite support had it not be for the ULP -Cardinal Transportation factors: -but for the ULP, the union would have been certified (they only needed 1 more person to sign to have majority support) (1) the level of membership support prior to and subsequent to the employer‘s unfair labour practice (2) the seriousness of the employer interference and the reasonable effect (assessed objectively) of that interference on employees (3) the point or stage in the organizational drive of the employer‘s interference (4) if less than a majority of employees are members of the trade union, whether there is adequate or sufficient support to conduct Collective bargaining (i.e. negotiation, representation, etc.) (5) the ―totality of the conduct‖ of the employer; and (6) the specific nature of the employer and the employees -there have been only 3 remedial certifications in the last 8 years, and Kilcoyne is suspect how successful these orders have been -thus, unless the board is 7 (b) reinstatement (wages and benefits) [14(4)(c)] 0 -Used where the board has determined that the discharge, suspension, transfer, layoff or other disciplinary action violates s.6(3)(a) or (b). -Requires the employer to reinstate the employer to his or her former position and pay any wages lost due to the wrongful action. -Not possible at Col and the section recognizes that for the right to organize to be real, reinstatement must be available for those who are fired b/c of union activities. -In BC there is realization that this remedy must be speedily available and s. 5(2) provides it where there is no CA in place - hearing in 3 days and decision in 2 days. (c) damages [133(1)(d)] allows the board, except in matters related to strikes and picketing, to make an order determining and fixing the monetary value of an injury or loss suffered by a person because of a contravention of the Code (d) rectification [14(4)(b) and 133(1)(a)] (194) access - Focus (195) distribution of the board decision - Am Airlines (e) ”make whole order” -normally, damages are awarded to the trade union -based on the board‘s broad remedial powers and in particular section 133(1)(a) which provides that when a contravention of the Code occurs the board may, in its discretion, ―order a person to do anything for the purpose of complying with the Code or to refrain from doing any act, thing or omission in contravention of this Code‖. And the catch-all s.133(1)(f) which allows the board can ―make another order to proceed in another manner under this Code, consistent with s. 2, that the board considers appropriate‖. -this is a rare, sweeping order which is made in response to egregious conduct by the employer -normally this would include an award of special damages (reimburse tu for the additional costs - organizing costs; admin costs; legal fees) Kidd Bros. and Miscellaneous Workers, Local 351 1976 BC p. 6-88 Facts: Board found employer guilty of a bunch of ULPs but concluded that a s. 70 [s.55?] fist contract had no hope of succeeding as the employer had fired the employees and had been found in contempt of court for refusing to reinstate them. Issue: What is the appropriate remedy in these circumstances: Analysis: the circumstances were so extreme that imposing a Collective Agreement would be useless board notes that the Code gives them very broad powers board decided to issue a make-whole remedy and compensated the union for their organizing expenses why? the original choice of the employees in favour of CB through tu representation has been totally aborted by the persistent illegal conduct of the employer. In these circumstances, a cease and desist order which merely required the employer to comply with the Code in the future would be of no more remedial value than the previous orders made by the board. employer has already ‗harvested the fruits of its violations‘. Cease and desist would merely freeze the status quo and would give encouragement to an employer who would engage in ULP for the purpose of avoiding the practice and the procedure of CB between employers and employees. 7 conduct of the employer must have actually resulted in losses to the union and these losses must 1 admit of some kind of objective assessment. unions loss of support in this case was not its own fault, it was directly attributable to the employer. In trying to maintain support in the face of this opposition the union was required to incur expenses that it would not otherwise have been required to incur. The board can do nothing to recapture the support of the employees, the union should be compensated for the portion of the lawyer‘s fees, litigation expenses and organizational expenses which are directly attributable to the employer‘s misconduct remedy ordered here was novel but it was under the authority of a Code which clearly envisages that the board will adopt a creative approach to the development of new labour law remedies observed that the make whole remedy here, like in the Robinson Little case (where it said that it had the power to force the re-opening of the store), was made in a context where a more draconian form of relief. In this case the Board‘s make whole order was conceived as an alternative to the imposition of the first CA under s. 70 [55?]. Westinghouse 1980 On not in materials; covered in class Kilcoyne argues that this is a misleading case as what Westinghouse did was not outrageous enough to warrant the kind of broad remedial authority that the board utilized. Facts: Example of a ‗run away shop‘. Employees at the big plant in Hamilton were, for 40 yrs or longer, represented by the electrical workers. Employer decides to close H and build six new sites (little factories). The employers documented everything; there were clear legitimate business reasons for the decision including proximity to the customers, reduce transportation costs. There were also Labour Relations reasons for doing this. They were concerned over the vulnerability of the H plant to a strike. If there was a strike the whole plant would shut down. They assumed that even if the new 6 became unionized that if one shut down the others would still be operating, ensuring them continued revenue; (note: on an organizing drive, the board has to answer two questions: (1) is there majority support?; and, (2) is this an appropriate bargaining unit?). In actual fact they were convinced that the 6 would never be unionized as they had made the decision that they had to be located in areas where the manufacturing industry was less than 50% unionized. Analysis: -based on the above facts, which were documented!, the board concludes that there was anti-union animus and that it was a ULP -what remedy? didn‘t order the Board to keep Hamilton plant open (―run away shop cases‖: although boards never order a re-opening plant order, they always maintain that they have this authority; only in one case, Robinson Little, has this ever been mentioned and in that case it was obiter dicta) union asked for remedial certification - it was refused; board held that there was no evidence of a desire to unionize at the other 6 locations (Kil is not sure that BC would refuse it) b/c at each plant there would be new employees and they would have the right to decide if they want to be unionized and by what bargaining agent. (Kil doesn‘t think this reasoning would hold up now - if new employee came the H plant they would have become part of the union) -what the board did order H employees were give the right of first refusal for jobs at anyone of the new locations. employer had to pay for employees relocation employer had to provide the trade union a list of all the employee names and access to bulletin board at the other 6 plants access order for the union to come and address the employees on the employer premise during work hours 7 employer was to pay the cost of the Organizing Drive at all new plants 2 Retail Clerk‘s International Union and National Bank of Canada 1982 CLRB p. 6-90 Facts: OD at seven branches of the bank in Que. Certification application was a success. Unlike BC, the Que stat did not have an automatic second statutory freeze, it had to be applied for. Someone forgot to send the notice in quickly and this gave the employer a window of opportunity (they weren‘t thinking about ULP). During this period the employer shut down the Maguire branch, fired 2 employees at Maguire and transfered the other 3 to the Shepard Branch (union not cert there) where they were comingled with 12 other employees. At the other 6 branches were the union was certified they did CB and by the time this case was before the Board the CA were concluded. Analysis -board says that this was clearly motivated by anti-union animus and was a ULP -remedial orders certification variation - changed the certification at M branch to read S branch. Note that if there had previously been an unsuccessful cert at S this transfer of certification wouldn‘t have happened. union is now in the position of being able to negotiate a CA but needs to have the support of the 12 employees at S. To facilitate this the board orders: the bank to provide the names and addresses of the employees bulletin board for the union right for union to conduct meeting once a week for 2 months - during work hours and on bank premises after 2 months expire they can meet once every 2 weeks until there is a strike, a CA is negotiated, or the union is rejected. letter was to be sent to all bank employees - not made clear that Board had drafted the letter, it looked as if it was the writers opinion, and made the senior bank official sign it set up a trustfund in the amount of 144,000 which was the estimated cost saving of closing M - this fund was to be used for the purpose of furthering the objectives of the Code. as to the two who were fired the board said that there was no request made for relief so none was granted. If this was based on a civ pro argument it would not be the same result in BC, the BC bc would have reinstated or done the RN analysis. Maybe the union didn‘t know where they were or maybe they had a new job and didn‘t care. Comment: -What else might you have wanted if you were the union? money for additional cost b/c of new site for organizing drive impose a CA - not actually imposed but starts them on a process which will culminate in a CA. It is rare for them to do this. Strongest arg in this case is that the other 6 have CA and could argue that ‗but for‘ ULP they would have had CA here. Fairly strong factual case for it but they chose not to do so. Wonder why when you have a good idea what the parties would have agreed to b/c of the 6 other agreements. Counter to that is the uncertainty about the 12 and their feelings towards the union. Possible in theory for the CA to be imposed and then submitted to the emess for ratification but there is no cases where it has been done. Imposed CA is only for one year. Imposition would be retroactive to the date of certification - assume that 6 or 8 months have passed since the certification - so you 7 would only have 6 or 4 month in which the imposed CA would operate. At this point 3 you could only impose first CA and not subsequent (f) Imposition of CA see above (g) Remedial Certification Sandbar case: extremely rare but may be ordered if : (i) the union doesn‘t have majority support and there has been employer ULP; (ii) and would have majority support but for the employer action; and (iii) if we impose it there is some prospect that CB will be successful. This one is not a doctrinal factor but likely would be considered. Don‘t want to waste everyone‘s time. -not granted in Sandbar [under old sections wording] because the IRC was satisfied that the actions of the employer had not vitiated the vote of the employees such that they should be deprived of the opportunity to freely choose their bargaining agent. -seems that this would only be ordered where the employer had committed many ULP‘s and had not complied with board orders. -Failure rate of auto cert is very high. Success is defined as employee successfully concluding CA with the employer. Success is only found in 10% of the cases - these figures are out of date (73-89) -This is why to board is reluctant to order. -Kil thinks that the current board may award auto cert more often. Note that representation votes are no longer required in all cases and this may make a difference in the interpretation of autocert 3. Limits on Remedial Creativity Re National Bank of Canada and Retail Clerk‘s International Union 1984 SCC p. 6-98 -see p. 6-90 for the decision of the Canadian Labour Relations Board Facts: -in B.C., we have two statutory freezes: (1) s. 33: time between application and decision; and (2) s. 45 on certification (30 day freeze, and a continuing freeze for 3 months (when the trade union gave to the employer notice to commence bargaining) -in this case, the union organized at 7 banks -during the 30 day freeze, the union gave notice to commence CB at all the banks, but 1, the ―McGuire St. branch‖ (it was 2 days late) -employer shuts down the McGuire St. branch, fires 2/5 and moves the other 3 to another branch, ―Shepherd‖ (which was a non-unionized branch) -6 CA were eventually negotiated Issue: is this an unfair labour practice Held: the only reason for shutting down the branch was to defeat the union; there were absolutely no business reasons for shutting down the branch (classic run-away-shop situation); cost of organizing, bulletin board, etc. granted. Appeal: -Remedial issues were appealed to the SCC. -Specifically the Bank appealed the letter (p. 6-97) and the trust fund. With respect to the trust fund the Bank argued that it was unfair, prompted by a desire to punish and in fact constituted a fine. With respect to the letter the Bank argued that it was humiliating, unreasonable, vexatious and intended to be punitive. Decision: court held that the board had exceeded its powers Analysis: didn‘t like the letter or the trust fund this case is normally cited for the causal link idea - you look at the breach, the consequences of the breach and fashion a remedy attributable to the causal link and the ULP; no causal link between the 7 ULP and the letter/trust fund. The letter is misleading, untrue, and totalitarian (forces the writer to 4 certain political views). confirmed that remedies couldn‘t be punitive. causal link - fact that the maj of employee not unionized is not a result of the closure of M and the trust fund was directed as if it was. Board said the closure was a valid object lesson. Board would have been influenced by ULP‘s at other banks but the court says that they must be taken as discrete situations trust fund was found to be punitive - absence of compensatory element. Method of calculation looks like a fine - not letting them profit from an illegal act. Comment: b/c of curial deference they remit it back to the admin board for it to decide in accordance with the doctrinal principles the court has established. new board considers it. They made an award for organizing costs - union was to submit costs; and the letter was redrafted per the Am Airlines format. given the result why did the Bank bother to go to the SCC? It was a small union and it cost lots of $ to go to the SCC. Can be seen as an abuse or use of the court process but either way the goal was to bleed the union. Whitespot and CAIMAW IRC 1989 Facts: reconsideration of decision which held that Whitespot had committed a ULP by publishing misleading and inaccurate information about CAIMAW in local papers during the course of CB dispute. IRC ordered rectification by publishing newspaper ads and sending letters to the union and employees admitting that it misrepresented facts and correcting all misrepresentations. Whitespot sought reconsideration on 6 points. 4 had to do with facts and they were dismissed on reconsideration. Fifth was that it was punitive and contrary to Charter. Sixth was that it was beyond jurisdiction of the board to make. Analysis: IRC said that it is fundamental principle that relief be compensatory not punitive - put complainant in the position they would have been in if no breach. Mere fact that a remedy is novel does not make it unreasonable. [Tandy Electronics] the decision to publish the findings of the labour board is not without precedent - usually involves a posting at premises or letter to employees the publication in the newspapers was ok here b/c that was how Whitespot had communicated its position. The publication order reflects an attempt to rectify the consequences of the ULP in a manner commensurate with the nature and effect of the violation itself. Charter issues should not be raised for the first time on appeal. However they felt that they had to say that the order did not violate the Charter. National Bank could be distinguished on the basis that the letter in that case was under the personal signature of the president of the employer, was drafted by the board and more importantly it expressed a strong endorsement of the CB system and the Code. By contrast, the panel in this case did not specifically proscribe the contents of the ads or order Whitespot to endorse a particular opinion. We see the orginal panels order as requiring Whitespot to retract its orginal misrep by stating that the IRC has found it to be a breach of the Code....this does not abrogate the freedom of expression. doesn‘t think that the IRC exceeded its jurisdiction. The panel was not providing a remedy for the injury to CAIMAW in the eyes of the public but, rather, was seeking to provide a remedy which would put the union in the same position it would have been in if the ULP was not committed. 7 5 there is broad remedial power in the Code and a remedy will normally be upheld on review so long as the relation between the violation of the Act, its consequences and the remedy itself are clear. [National Bank] 4. The ‗Clean Hands‘ Doctrine -remedial powers under s. 14 and 133 are discretionary and the board can decide not to issue a remedy even though there was a breach of the Code -in particular s.133(c) states that the Board may ‗refuse to make an order, despite a contravention of the Code, CA or the regulations, if the board believes it is just and equitable to do so in view of the improper conduct‘ of the complainant. CHAPTER 7: OBTAINING, RETAINING, AND TERMINATING BARG RIGHTS PART I-- OBTAINING, BARGAINING RIGHTS A. THE CERTIFICATION PROCESS 1. Introduction effect of trade union being certified: (i) union becomes the exclusive bargaining agent of the members (can legally bind the members) [s.27(1)(a)]. This brings with it the duty to fairly represent all the employees in the unit, regardless of whether they are union members or supporters. [individual employees lose the right to bargaining on own behalf - some situations where they might on a limited basis] (ii) the board decides if (in order of consideration) - is this an appropriate bargaining unit - and if not what would be - does the bargaining agent enjoy support of the majority of employees in that bargaining unit? -certification entitles the union to recognition from them employer. Employer must deal with the union regarding T & C of employment of the employees in the unit and bargain in good faith towards the resolution of a CA -certification brings with it a certain degree of statutory protection against loss of bargaining rights. Limited security of tenure arises under provisions which provide for retention of barg rights upon or other disposition of the bus and restrict the circumstances where a certified bargaining agent can be displaced by another union or discarded by employees in barg unit who no longer want to represented by any union. -mechanism which fosters industrial peace and Collective bargaining. -decisions about cert are fundamentally about union power. When the board decides the ABU as part of the cert process they are making Important decisions about how much power the union will be able to call upon. Cert shapes the CB which follows and plays a significant role in determing the outcome. 2. Note on Voluntary Recognition -nothing prevents an employer from voluntarily recognizing a union and bypassing the certification route -assuming that the voluntary recognition union is not employer dominated, once it has concluded a CA within the meaning of the legislation the provisions of the Code which apply to CA become applicable -problems can arise: union wants to take advantage of provisions of the Code, they can‘t so they certify -run risk of challenge that they are employer dominated -agreements may be seen a sweetheart deals 7 -agreement may not be recognized as a CA - eg where the union concludes an agreement w/o employee 6 support the Board may find that the union is not representative of the employees and the agreement will not enjoy the status of a CA [Delta Hospitals; Burns International Security Services] -don‘t get the benefit of the 4 month statutory freeze [s.45(1)(b)], or the 6 month protection from raids [s.18(2)], or the requirement that the employer bargaining in good faith (would apply for subsequent CA) [s. 47] -some sections of Code are based on certification so the voluntary recognized union would not have the benefit of those sections or of any of the sections which refer to ‗bargaining agent‘ -statutory benefits provided upon certification make the voluntary recognition method unpopular -may be used in sectors where unionization is seen as inevitable - e.g. where unionized employer is opening a new endeavour - however in vast majority of cases there would be subsequent formal certification 3. Statutory Hoops to Certification - Majority Support (a) Code highly structured - basic requirements when workers organized the first time are found in s. 18(1) and 23 -Principles: support from 45%+ of employees in unit - the union can apply for certification [18(1)] support from 45 to 55% of employees - there is a mandatory representation vote [24(2)], this will be supervised by the board and the employer will receive notice - as a result the board will try to hold it as quickly as possible t avoid ULP. If less than 55% of eligible employees vote the board will hold another vote [24(4)] support from 55%+ of employees - the board will certify [23(1)] unless..... the employer alleges and adduces evidence of s.9 conduct; or other evidence that makes them not trust the 55%; if in doubt they hold vote --union must satisfy board that it enjoys majority support from the employees in the unit -how to determine support? cards or vote? (b) Cards vs. Votes to determine level of support historically in BC it was membership cards in 1983 BC became the 3rd province to drop cards and go with a mandatory vote why do we use cards, instead of a mandatory vote? 1992 Task Force sets out the case for cards v.s. vote (1) norm in all Canadian jurisdictions (2) no evidence of problems with this, if so, there is a process for rectification Kilcoyne argues that the key reason is unfair labour practices; because when an employer finds out about an organizing drive, they will take action and remedial awards rarely displace the effect of unfair labour practices; in short, unfair labour practices work, they intimidate and frustrate organizing. (there is some evidence that this is exactly what happened in Ont.: Walmart Case, union had relatively few supporters, but the board found that this may have been due to ULP, so they ordered remedial certification… Kilcoyne also argues, that the task force does not address the employer‘s concerns that ―soft coercion‖, the peer pressure associated with signing a card in front of a fellow employee would be alleviated if there was a mandatory rep vote with secret ballots since the 1992 amendments we have gone back to the cards Task force was unanimous on the return to the cards and the major reason was to finesse ULP. Found that there was no compelling evidence that membership cards do not adequately reflect employees wishes. A hotly contested representation campaign all too often poisons the atmosphere and fosters mistrust between the parties. from 1984 to 1990 the number of sustainable ULP doubled 7 7 there is an expedited procedure for revoking membership cards - fairly simple but must be received by Board prior to the certification decision; if it arrives after it is ignored unless it raises s.9 considerations. AB government has shortened the time gap between application and vote - Kilcoyne thinks it is 72 hours - this minimizes the opportunities but certainly doesn‘t finesse the ULP problem. (c) Regulations for Membership Cards and Votes -BC Reg 7/93 prescribes minimum criteria for membership cards and for rep votes. -s. 3 provides that cards must be signed and dated at time of signature and must contain a particular stmt. Cards must be signed w/in 90 days of the unions application for certification or otherwise, active membership in the union must have been maintained by dues payments during that period -s.4 allows for revocation of cards by delivering written statement to the union or board before the date of application for certification. -Part 3 deals with vote and has provisions to ensure that all those who are eligible have op to vote and that the ballots are secret. (d) Build-up Principle p. 7-11 -provides an exception to the 55% requirement -involves situation with a new plant that will be up an running in a number of months. They hire an initial group (10) to lay the ground work. There is an OD and 7 sign - there would be an application for certification for all employees whenever the plant reaches full complement. -As a general rule the board doesn‘t like it: why should these 10 be denied unionization; but why should these 10 decide it all? -What the board looks at: comparison of the current % with the ultimate complement - rough rule is 50%, if less than 50% of full complement they will have to wait how long will between current and full complement? The longer it will be the more likely that they will find smaller % acceptable. If 3yrs no question that small # would get to be unionized any anti-union conduct by the employer? - not necessary that it be to the extent of ULP, they will delay if they are content that the employer won‘t interfere. E.g..) Noranda Mines - trusted as mature industrial relations player. Noranda Mines Limited (Goldstream) 1982 BCLRB p. 7-11 Facts: Nov application - 13 employees, with 100% support. By June (8 months later) there would be a full complement of 150. Decision: Board orders vote for June 1 as a substantial and representative group of employees was not yet present. -applied the ―build-up‖ principle -The 13 would have likely been a different type of employee then would be the majority in the full complement and they would have gotten to pick the union - concern over which union gets in and can best represent the workers. -8 mo is a considerable amount of time but Noranda was a mature industrial relations player. Teledon Publishing IRC 1989 p. 7-11 Facts: June application - 30 employees. Aug there would be total complement of 69 - so 3 months until full complement. Decision: Board refused to apply the buildup - certified the 30 immediately. 7 Comment: viva voce evidence showed it would be longer. May have taken harder line b/c or 8 inconsistency. Also not a ‗Noranda‘ type employer - Teledon was an unknown - didn‘t have assumed cache of non-anti-union conduct. Note: on its face, the opposite results are achieved in these cases….Kilcoyne argues that everybody knows Noranda as a hard ball employer who does not engage in ULP (they are not a Radioshack or Westinghouse) and that there is no question that they are going to be unionized. Contrast with Teledon: there was no track record to take judicial notice that they would not commit ULP. As well, union support was just marginal B. DETERMINATION OF THE APPROPRIATE BARGAINING UNIT (ABU) P. 7-12 1. Types of Units (a) s. 1: employer - unit that would include all employees of this employer; - plant - there is 2+ plants and the certification only applies to employees at one plant (b) s.21: craft - trade worker - carpenter, plumber, electrician - technical - quasi professional (one degree); health tech, lab tech; semi skilled - professional - lawyers -board should think about a separate unit (c) s.29: supervisors - may be lumped in or have a separate supervisors unit -security guards (d) s.28: dependent contractors 2. Code -s. 22(1) provides that when a tu applies for certification as barg agent for a unit the board shall determine if it is an ABU and may before certification, include in or exclude employees from the unit. -s.22(2) - board shall examine records and hold other inquiries including hearings it considers necessary to determing the merits of an application of certification, and shall tell applicant the nature of evidence it is to supply -s.22(3) - membership in good standing in the trade union must be determined on the basis of membership requirements prescribed in the regulations. 3. Historical Development of ABU p. 7-13 (a) Community of Interest -if there were 5 different types of employees at factory, historically they would have each been a separate unit - each had a different community of interest. -board would have accepted multiplicity 5 criteria - 1. similarity of interests (similarity of terms and conditions, duties, qualifications etc); 2. geographic proximity; 3. physical/administrative structure of the employer; 4. Employee-exchange: does the employer move its work force from one location to another? 5. historical representation/practice in the industry generally. -result - smaller and more units -in essence, the employer then gets to determine the size of the bargaining unit by the general structure of their business….arguably, this is power that they should not have. 7 9 (b) One Big Unit (OBU) - Industrial Peace Case for OBU (1) Uniformity of (2) allows for lateral mobility; common seniority provisions; (3) administrative efficiency/ease; (4) Industrial Peace: by far, the most significant reason for OBU (less strikes, disruption, reduce whip-sawing) Note re: B.C. teachers: historically, the appropriate bargaining unit for teachers, was province wide (BCTF). In the early 80‘s, the provincial government decided that it wanted to create an appropriate bargaining unit for each school district; the rationale was that the government wanted to devolve power to the local level, to allow them to decide class size, after school activities, etc. However, from a labour-relations perspective, this was horrendous. CA would be negotiated with the wealthier school districts (West and North Van) where teachers could afford to make more concessions, and this would create a presumptive standard that would ―bind‖ all other bargaining units…. (i) Birth ICBC and CUPE and OTEU and BCGEU and Teamsters 1974 BCLRB Facts: employees were not unionized when it was first established. Many union moved in based on historical representation. ICBC wanted one unit and all employee unit. (Note that unionization was a foregone conclusion - ICBC supported CB) Decision: -conceptually there are 2 part of the decision: OBU and community of interest. They never use the phrase community of interest but it would have been nice if they had as it would have made it clear that there were strong cases for more than one unit. Just say that what the unions have proposed does not even work along those lines -OBU advantages to the employee - lateral transfer would be easy to effect good for the public - limit disruption, OBU means that there is one round of CB and therefore potential for only one strike admin convenience and efficieny facilitates the acheivement of a common framework of employment conditions - runs risk of ignoring real differences in employees needs and wishes (Community of interest) but unless a good cause can be made for the existence of such differences, the creation of two units will only lead to artificial disparities Important to remember the context - ICBC is a quasi-monoploy; provides a ***public service by virtue of a stat monopoly - risk to public is too substantial to allow multiplicity -community of interest board must decide if the distinctive needs of special groupings of employees are strong enough to outweigh the practical arg in favour of one all-employee barg unit functional division - could argue that the claims function is different from the other functions of an insurance enterprise. Line drawn by the various unions does not satisfy this type of division geographical - seems to be neutral in this case - most major decisions made at head office. In priniciple this can often be a material factor in creating a community of interest. Employees at one location, under their own management, and living and 8 working under special conditions, may have distinctive interest in negotiating their own 0 CA. -the expressed views of the employees is not an appropriate way to determine the ABU - it is for the board to decide; would lead to a haphazard Collection of representatives and that is unacceptable -will not necessarily look to the best barg unit in the long term if the effective result of that would be to deny CB now. However the need to facilitate CB does not arise in this case b/c unionization was a foregone conclusion. Comment: OBU is not as popular in other jurisdictions (ii) Application of OBU: OBU meets the Private Sector MacMillian Bloedel Ltd. Harmac Division and OTEU 1984 BCLRB p. 7-23 Facts: 1200 workers at Harmac were rep by PPWC. When PPWC first applied for certification, the board excluded 40 to 60 employees who were characterized as office and technical workers. These people now want to be certified and OTEU applies for certification Argument for Separate Unit: employee wishes - these should be respected as a natural extension of the right to bargaining Collectively and unionize; should encompass the right to choose traditional community of interest criteria - they are pulp workers and we are completely different minority rights - our unique interests would not be represented in that bargaining unit - we would always be submerged - they didn‘t want us in the beginning bargaining history - clerical workers were always represented by the OTEU; if you don‘t give us separate unit you will be destroying the OTEU Decision: -board concludes that OBU was appropriate -some differing community of interest but this is pretty minimal/weak - they were not true clerical workers as they had technical duties as well; no geographic separation; there was intermingling of job tasks -if we find it is not ABU we are not forever we are not forever precluding them from becoming unionized - they can ge representation by PPWC -consideration of industrial peace outweighs your choice - industrial peace is particularly important in this case - if they get separate certification and then strike they will throw 1200 people out of work - give them disproportionate amount of bargaining power high degree of integration among the other operations of MacBlo. Given the structure of MacBlo‘s operation a shut down at H would result in the shut down of a chain of operations and it will happen fairly quickly. MacBlo had the Alpulp incident to point to -costs were to substantial to have a separate unit. Comment: -context here is important - forest industry is economically Important to BC -as you move away from sectors Important to BC economy you find that the signif of OBU declines -not that community of interest was Important and was still used - hospitals have come up with other ways to deal with it (c) OBU: Concerns and Responses (i) Quality of representation (Minority Rights) -Problem: MacBlo - tech workers will never have their say; they will always be outweighed 8 -Response: 1 is a duty of fair representation in the Code but not much enthusiasm in interp it may allow mulitiplicity of barg units but impose on them a Council of Trade Unions - CTU will negotiate one CA with employer, one round of CB, one stike. Whether this is effective response is highly suspec BC Ferry Corp - highly unusual BC Ferry Corp and BCGEU 1977 BCLRB p. 7-21 Facts: 1977 BCFC created by the provincial government. 2500 employees. # of unions made applications for representation. There really was no question that it would be OBU What OBU would mean: -occupational categories clerical - 25 trade - 200 shipboard - 1500 (normal), 400 licensed -work site differences ship land -geographic dispursion was great 75 in Vancouver Sunshine Coast Charlottes -differing T & C h/o - 7 -7 1/2 hr shift - M to F terminal -shift work - 7 -7 1/2 hr shift ship - 7 1/2 hrs, others were 12 hr, depended on the ship as some were live aboard -on historical community of interest you could have easily have had 10 to 15 units -strongest division urged before the Board was for a licensed unit - they didn‘t want to be lumped in; in the maritime industry it was common to have two units; minority bargaining rights argument Board Order -union had to rewrite its constitution and the board dictated the changes it wanted 11 locals - create 4 new (licensed) ones (1 at each terminal). 1 member of executive of the union had to be a licensed officer another position had to be created below whose job would consist of exclusively representing the licensed officers rep given some control over issues related to the licensed members had to be amended to include a ―halo clause‖: supervisory people were put into a unit that was comprised primarily of people that they were supervising; so, the clause ―we will never take internal discipline against a licensed officer because of a penalty they imposed against a brother/sister‖. If there wasn‘t such a clause, the bulk of the members would vote against the action taken by the supervisors and the supervisors would essentially be unable to exercise any power. given seat on unions bargaining committee Comment: -Board never would have ordered this if it was an established union -licensed officers only represented 15 % of the employees but from 77 to 88 in excess of 50% of executive positions were held by licensed and made up 1/3 of barg committee Master Clerk 8 1979 $2373 1484 2 1991 $5075 2916 144% increase; $ increase of 2700 85% increase; $ increase of 1200 -consistent % increases -was backlash or internal revolt and since then the licensed representation is not what it was and they don‘t fair as well. -last summer the licensed officers brought application for reconsideration of the OBU (ii) Organizing -Problem: Bk workers is the classic illustration; smaller units are easier to organize. OBU is a defacto bar to organizing -for bank workers the initial problem started by a decision of the Canada board on the Kitmat branch. Said that the branch was not an ABU. ABU for the Bank of Nova Scotia was essentially all branches in Canada. Because of this most unions decided not pursue organizing. -Responses: Response 1. SORWUC SORWUC and CIBC 1977 CLRB p. 7-37 Facts: SORWUC was a feminist organization that wanted to organized unorganized women; targeted areas which were traditionally off limits to unions (restaurant industry, and bank workers). Clearly were outsider in terms of the traditional trade union movement. Some argument about whether they lost b/c they took too hard a line on CB or b/c they weren‘t supported by traditional trade union. Asked the board to reconsider the Kitimat decision. Analysis: -bank argued that previous Kitimat case was a good decision (in this case, the attempt to organize 34,000 employees was impossible….) admin convenience; take employer as you find them - and we are a highly centralized employer; transfer is part of the banking industry uniformity of conditions across the country is good for the employees bank is so important to the Canadian economy that we are a quasi-public employer -board rejects that, they don‘t buy the parade of horrors. There could be a strike at one branch and that really does very little to you; absence of inter-branch functional integration so strikes in individual units would not shut down the entire operation -applies traditional community of interest criteria: same T & C, same supervisor, social interchange one unit is needed for access to CB to be available to bank workers -says that for the purpose of getting CB up and running in the banking industry we will accept that one branch is an ABU but at some point in the future we will require amalgamation -board is careful to note that the Code requires an appropriate bargaining unit and not the most appropriate bargaining unit. Comment: -during the organizing period other unions got involved and there was a well run campaign of opposition from the banks. Was some ULP but there was mostly heavy reliance on process tactics (litigation) to tie up the financial resources of the union; the delay in absence of delivering a CA made people fed up 8 -Banks learned to play CB hardball - have to barg in good faith but that doesn‘t mean you have to3 agree. What is the impact on CIBC if the employees strike? Not much but it would be a public relations nightmare for the union. -in addition, while the branch ABU facilitated org, it significantly undercut barg power -most banks gave upgrade in benefit/pay before an OD started Discussion: Factors that may account for failure to unionize bank workers: -intimidation; pre-emptive measures by the banks; exploitation of process -work force characteristics: transient, pt time -technological change -unions can‘t afford to organize small groups of workers - that is exactly what the historical craft unions did; more personal dynamics with small group; decert is easier in small units d. The B.C. Response to OBU Concerns The following decision represents one of the B.C. Board‘s major attempts to respond to these concerns by articulating what became known as the FOOTHOLD PRINCIPLE: Woodward Stores (Vancouver) Ltd. and Graphic Arts International Union and Bakery and Confectionary Workers International Union of America 1975 BCLRB p. 7-32 Facts: 8500 employees in BC; 10 stores. Totally non-unionized employer; generally employees in this sector have low union density. 2 applications for certification are made - GAU applies for a handful at one store and BCU applies for the bakers at other stores. Board joined the two applications for consideration purposes Analysis: on its face, this is not a case for OBU: industrial peace, whipsawing, etc. Board is faced with the potential for multiple units (at least 7 or 8) in one store, which would have the potential for lots of strikes. This was a compelling case for bigger units in order to provide access to CB, we will allow people to organize; board notes that it is not most Appropriate Bargaining Unit, but is an ABU. this is done expressly for organizing purposes board said it is unusual (to depart from OBU) and would only authorize small units to permit unionization to establish a foothold (within Woodwards and the retail sector) they wanted to make it clear that they weren‘t prepared to have 70 or 80 units - unions were put on notice that at some point we will require ‗rationalization‘ of unit structure (merging of units) relaxed rule upfront to allow CB to start but at some point we will turn away new union applicants and start lumping units together. will require some reasonably coherent and defensible boundaries around the unit over and above the existing, momentary preference of the employees Comment: -how will lumping work? Working towards one unit and the employees will have to pick a new barg agent - numerically largest agent will logically become the new one. Board notes that they do not consider that unions have property rights in the continued existence of certification or CA where they unit upon which they depend no longer appears appropriate -when they do vary certification to add new groups of employees the board acts under s. 142 of the Code. See the Olivetti principles which outlines the policy the board follows in determining the level of support for variation Response 3. Geographic Certification 8 not technically a response to the org problem 4 it is a specified multi-plant certification why? it facilitates organization it is a mid point in response to workers faced in the branch basis of certification. That approach gave them access to organization but left them with virtually no barg power. This approach still facilitates organization but there is a larger unit so there is larger clout. Fits comfortably with the foothold approach. in Woodwards they kind of used this approach for the bakers by making the bakers at 3 different stores into one unit. One potential difficulty was that the different stores were run by different corp subsidiaries in the Woodwards chain but there was ev that they were ‗associated or related...businesses carried on by more than one corporation...under common control and direction‘ and accordingly they could be treated as one employer for the purposes of the Act. [s.38] Query: (196) So, is a smaller ABU really facilitating organization? (197) What about Collective Bargaining? (d) Current Doctrine - Island Medical Labs 7-45 Applications # of Employees Opt for an all employer unit 70% < 20 (less than) in the vast 90% < 50 (less than) majority of these cases info that follows is for the highly unusual cases (i) Community of Interest (COFI) -need some ―rational and defensible boundary‖ -the court relaxes COFI, and may look more to functional integration and may draw, what might otherwise be an inappropriate line with respect to bargaining units 1. similarity of interests - Limited/Less Important? skills, qualifications; duties; working conditions - 2. physical/administrative structure of the employer - Crucial however the employer has chosen to do it that is the presumptive drawing line for the unit - take employer as you find it 3. functional integration - Crucial whether employee are functionally intergrated between dept/units doesn‘t mean functional relationship, i.e. that what people do in the office effects people in the plant means functional integration in the labour relations perspective - employee interchange; rotate to different tasks; they are likely to draw the line broader. not enough if the exchange is b/c of temporary/short term basis - ie vacation relief 4. geography - physical proximity - Crucial 5. employee wishes - not determinative 8 5 6. extent of OD - we don‘t get to consider ABU until union applies for cert so the efforts during OD are not relevant. Union‘s assumptions about what ABU should be is not relevant 7. classification/cross-classification - not done? not going to do an employee classification unit; not interested in the union drawing strange lines around units and classification unit may lead to this Kil said he would be surprised if they wouldn‘t accept a unit of all the plumbers or electricians of a particular employer don‘t want partial division of classification either. (ii) Factual Settings 1. Vacant Field -no union presence, no CB within this particular employer operations -what do you do/how to determine ABU access to CB is the most important principle apply community of interest criteria however, if this employer (or sector) is ‗traditionally difficulty to organize‘ our community of interest standards will be relaxed ‗traditionally difficult to organize‘ means low union density in industry/sector or among these particular employees which reflects structural or systemic aspects of the workforce. (Kil is not sure what will be made of last part). Low density is probably the most Important point. evidence required: judicial notice - we (board) know from past applications; viva voce ev; documentary ev. Really is a low evidentiary threshold 2. Occupied Field -some union presence -what do you do/how to determine ABU industrial stability (peace) is the over-riding principle doctrinal test: COFI: still apply community of interest standard but need to add the following to the basic criteria: info on history and practice of current Collective Bargaining system for this employer - have there been a lot of strikes or walkouts?; whipsawing; can employer show that this has posed unwarranted hardship (difficulties in lateral transfers; cost of CB) practice and history of CB in industry as a whole - is the norm OBU?; if multiplicity is the norm, how has that worked? strong presumption against multiplicity of bargaining units which increases with the number of units -Board‘s options in future board can grant certification - ie) add another unit in majority of cases the Board will require/seriously consider ‘rationalization of units‘ merge them into one, or OBU; or see if they could just vary one of the units. -where there are multiple bargaining units already in existence, the board will exercise its jurisdiction under s. 142 to vary, merge, or consolidate bargaining units after a determination of the following 3 factors: a determination that one or more bargaining units is no longer appropriate 8 a determination of what would constitute a new or appropriate bargaining unit 6 (employing all 6 community of interest factors) and evidence of potential or actual industrial instability. 6. Application of IML (a) Vacant Field— Handout re: Joe Johnson‘s 3 movie theatres: Avant, Bite and Crystal facts: Joe Johnson owns 3 movie theatres in Victoria: the Avant, the Bite and the Crystal. All of the theatres are open 7 days a week and offer 2 evening shows at 7 and 9 pm. There are 5 employees at each of these theatres: 1 ticket seller, 1 ticket attendant, 2 confectionary stand sellers and 1 projectionist. They are not unionized. The hours of work for the projectionists are 6:30pm—11:30 pm while the rest of the employees who are required to do ―set up‖ and ―clean up‖ tasks, work from 6pm— 12:30pm In 1998, Joe decided to add a 2:00pm matinee showing on Saturdays and Sundays at the Crystal. All but one of the employees who work at the Crystal were pleased to have the additional hours of work. However, the Crystal projectionist was less than enthused at the prospect of coming into work every weekend afternoon for only a few hours of work. In response, Joe decided to rotate his three projectionist employees. Accordingly, once every three weeks, each of the 3 projectionists works a matinee shift at the Crystal on Saturdays and Sundays. Notwithstanding that the movie theatre industry is widely recognized as one that traditionally has been difficult to organize, on October 15, 2000 the Theatre Employees Union (TEU) commenced an organizing drive of the employees at the three theatres. While three employees who work at the Avant including the projectionist have signed membership cards, at the other two theatres, only the two projectionists have signed up. 1. similarity of interests: identical skills working conditions and interests 2. IML considerations that require more weight: (i) Physical/Administration (ii) Functional Integration in order to meet matinee schedule requirements, the projectionists regularly shift from theatre to theatre other workers may have to go on a different rotation (iii) Proximity all are in Victoria, strong argument for OBU If you are acting for the union, there are a few options: (1) Projectionists unit (they have 100% support; therefore, they would have automatic certification) (2) argue that the Avant theatre should be an ABU (they have 3/5, so they satisfy the auto-certification requirement) most important consideration is access to Collective Bargaining Woodward foothold principle Acting for Johnson (employer)? similarity of interests: they have different jobs, qualifications physical/administrative functional integration: proximity….this is a hard one (b) Occupied Field 8 Costco Wholesale Canada Ltd. and Office and Professional Employee‟s International Union, Local No. 378 7 (“OPEIU”), and Retail Wholesale Union, Local 580 (“RWU”)  BCLRBD No. 167 7-56 facts new unit: OPEIU applied under s. 18 of the LRC for certification of a bargaining unit described as ―employees at and from 3585 Grandview Highway, Vancouver, BC except supervisors, administration, payroll and personnel clerks‖ (the Grandview location) first unit: RWU was certified, a year earlier, for a bargaining unit described as ―employees at 3550 Brighton Avenue, Burnaby, BC, except supervisors, assistant pharmacists, pharmacists, head office employees and payroll/personnel clerks (the Burnaby location) Costco did not challenge whether RWU (Burnaby) was an appropriate bargaining unit overriding consideration is the preservation of industrial peace issue (1) Is a second bargaining unit appropriate utilizing the 6 COFI factors set out in IML? (2) If yes, does OPEIU‘s stand alone certification application results in an appropriate bargaining unit? held: IML 6 factors (1) Similarity in Skills, Interests, Duties and Working Conditions: IDENTICAL! (2) The Physical and Administrative Structure of the Employer: HIGHLY CENTRALIZED (National) HIERARCHICAL STRUCTURE, NO DEVOLUTION OF POWER. (3) Functional integration: NO EVIDENCE OF EMPLOYEE EXCHANGE FROM LOCATION TO LOCATION; yet, the union argued: (1) THERE ARE TRANSFERS; (2) CENTRAL TRAINING; and (3) PROMOTION FROM WITHIN (4) Geography: WITHIN A COUPLE MINUTES OF ONE ANOTHER (5) The Practice and History of the Current Collective Bargaining Scheme NO EVIDENCE AVAILABLE (6) The Practice and History of Collective Bargaining in the Industry or Sector If there is evidence of heaps of long strikes, then this will be a serious consideration as a separate unit can not be justifiably certified given the effect on industrial peace So, look at CB in the retail food sector, Safeway for example: certified on an outlet-basis there are sub-units within a store legally, all the outlets and the union that represents each outlet participate in Province-wide bargaining LOTS OF UNITS IN THIS SECTOR, AND THERE IS NO DISRUPTION TO INDUSTRIAL PEACE BECAUSE THEY STILL BARGAIN TOGETHER held: office workers bear a heavy burden of proving that OBU is not appropriate and they didn‘t. Further, they didn‘t satisfy the concern that if there were two units, bottom line: ―on the edge‖—seems to say that it is difficult to get a second unit (e) Rationalization on variation of units Olivetti and IBEW 1975 BCLRB Facts: IBEW was certified for all 25 servicemen op out of Vancouver; applied to vary their certification so that it encompassed two additional servicemen on Vancouver Island. Decision: IBEW request was granted but only b/c a majority of the new servicemen - not a majority of the proposed unit - supported the trade union. Stands for proposition that a union may not redefine the scope of its representation - even when the proposed new unit is the most appropriate unit unless it enjoys the majority support among the new employees. Essentially is a rule against ‗sweeping in‘. 8 Comment: not that in an initial certification (ie not a variance) the wishes of the minority of employees is8 governed by the majority. This case sets up the reverse situation for a variation. Crest Motors (f) Sectoral Certification -was considered and rejected in 1992 -only jurisdiction that has this is Que -fastest growing sector of the Cdn economy is the service sector people in these jobs are historically disadvantaged right to engage in CB is illusory labour relations presupposes an industrial model and that doesn‘t transplant into other models -How it would have worked: Board would have identified the sectors using two criteria: (i) traditionally low union density (ii) average # of employees at location is under 50 within the sectors a tu that had majority support of all employee of 2 different employers could apply for cert as the barg agent of all employee of the 2 diff employers. There would be one round of CB; and one CA would apply to both locations if there was a subsequent OD at another employer in this sector the certification would be varied to include the new employer - the original CA would automatically apply to the new employer -this was supposed to facilitate organizing as it gives the union something to offer immediately. -employers were concerned - response was ―you are telling me that I will be bound by a CA that I had no input into!!!‖ -taskforce relied on ev from certain sectors which showed relative homogeneity in terms and conditions of employment - idea was that employer could count on other employer to have represented their interests (g) A Note About Broader Based Bargaining (EXCLUDE pp. 7-68—7-72) -provided for in Code s. 20 and 41-44 -Multiple employer certification: nothing prevents a union from seeking cert for a multiple employer unit under s.18 of the Code and the definition of ‗unit‘ in s. 1 is broad enough to encompass it. Bill 19 required employer consent before it could go ahead; this has been removed but is likely a board would still require it. -Joint Certifications of Unions: s.20 allows for 2 or more unions to together seek joint certification for one unit of employees. Could be of a single employer or multilpe employers -Councils of Trade Unions: under s.41 a council can be determined to be the appropriate barg agent for a unit of employees. It is like a union of unions. It can be done against the will of the unions concerned. May be done to curb the problems that can occur b/c of the fragmentation in mutliple unit situations -Accredited Employer Organitizations: under s.43 an employer‘s org may apply to the board to be accredited as the barg agent for a group of employers. Need consent of employers involved. Once accredited any union which represents a unit of employees of an employer within the accreditation must barg with the employers association. Helps employers to counter the power of unions which often hold the barg rights for large numbers of workers in certain sectors. This was done in the hospital context in BC and now virtually all hospital employers are represented by the Health Labour Relations Association. Part II: Preservation of Bargaining Rights (7-70) A. SUCCESSORSHIP 1. Code 8 9 s.35 - if bus or part is sold, leased, transferred, or otherwise disposed of, the purchase....is bound by all proceedings under this Code before the date of the disposition and the proceedings shall continue as if no change had occurred; and if a CA is in force, it continues to bind the purchaser...to the same extent as if it had been signed by the purchaser... basically this provides that when the employer sells the business the new owner takes subject to all outstanding issues under the Code - ULP, cert; CA; etc. part of difficulty is what ‗transfer of a bus‘ means from a labour relations perspective 2. Rationale Kelly Douglas & Co. Protection of the employees hardbargained for Collective rights. Without this type of provision the employees actions could all be for naught b/c of a simple change in corp ownership. It is up to the prospective purchaser to investigate the terms of the bargain which its predecessor has made with the tu and this should be taken into account in the purchase price. Board is to give full and liberal interpretation to the concept of successorship. Doctrinal Test 2 questions: (i) determine the nature of the former business and compare with the nature of alleged successor bus - is there ‗discernible continuity‟?; and (ii) if yes - look for some link or ‗disposition‘ 3. General Test ―Discernible Continuity” operational characteristics [Lyric Theater] is there similarity in function is there continuity or a hiatus - what if any gap was there between op of bus A and bus B is it done in the same location ‗exploitation‘ of former business by the current - goodwill, logo, trademark, carrying on business as - covenant to maintain good name, exchange of customer list; non-competition. Absence of these is not determinative but their presence is certainly important. Even if not a formal transfer of goodwill assumption of former‘s duties or obligations - accounts receivable; inventory; existing K, service to former customers direct contact or lack of contact between the predecessor and successor; arm‘s length -employment characteristics [Lyric Theatre] look to see if labour/types of work looks the same or substantially the same the same employees Cariboo Trail Hotel Corp. (West Mall Hotels Ltd. Exec. Plaza & Conference Centre) and Hotel, Restaurant & Culinary Employees & Bartenders Union Local 40 and Christian Labour Assoc. of Canada, Local No. 501 Decision No. B48/99 7-71 type notes from materials (b) Disposition -some link between the former and the current -given a fairly broad interpretation 9 -examples: 0 business in its entirety is sold from A to B - clearly a successorship and B would take subject to the equities. need not involve money or be a direct sale - could be a corporate reorganization where the unionized employees of one division (and its functions) are transferred to another unionized divsion. These are difficult situations b/c you have to decide how to integrate the CA‘s. Successorship could clearly arise but the problem is working out the implication. bankruptcy - debtor which owns the assets of business (could be a voluntary assignment into Bankruptcy or forced -petitioned into bankruptcy). In either case all of the property of the debtor will be vested in the trustee in bankruptcy who holds the assest in trust for the benefit of all creditors. Trustee will sell as much as is possible and will distribute the funds according to priorities. The third party purchaser gets clear title and doesn‘t take subject to the equities. Assumption was that s. 35 would have no application such that the third party would not be obligated by greivances, CA, ULP etc. However, that is not currently the position. S.35 can apply even in the case of acquisition through bankruptcy. -‗hiatus‘ - how significant is it - the length of time between cessation of former and the commencement of the current. Some people consider this under the first branch but it doesn‘t really matter. The point is that some gap will be large enough to say that there is no link, no continuity. Turns on the facts. Board has found successorship on a 4 yr hiatus (unusual); 6 month has been seen to be significant Illustrations Redskin Cedar Co. Ltd 1986 BCLRB Facts: Union was certified in 1983 and two years later the company went bankrupt. Trustee in Bankruptcy sold off the assets and some were purchased by Capital Cedar. Capital began operating at the same location 12 months later. Args against s. 35. - from the original panel -bankruptcy -12 month gap -not substantial proportion of the assets transfered: bought equipment but not the block purchase agreement; different customer base, no goodwill formally or defacto transferred; didn‘t take the accounts receivable. Args for s.35 - from the reconsideration panel -rejects the bankruptcy argument - can recast it by calling the trustee an agent - fact that intermediary involved will not be determinative -nature of the business was indentical -transfer of a substantial portion of the assets - substantial doesn‘t have to be 50%+ -location the same, and the Capital subleased it from the owner of Redskin -employees of Capital are carrying on the same kind of work that Redskins did. Clear that the great majority of R‘s employees were interested in working for C but were not offered employment by it. Notes that transfer of work in and of itself is not sufficient to establish a discernible continuity -as far as the original panels reliance on C not taking the goodwill, accounts receivable the reconsideration panel stated that they had neglected to take into account that R had gone bankrupt -original panel also relied on the fact that customers were different - reconsideration notes that the original did not consider that R sold through brokers. -failure to take on the block purchase agreement should not have been a factor b/c R sold it before they went bankrupt -original panel fell into the common trap of using the Lyric criteria as check list and did not look at the transaction from a labour relations point of view. 9 -the reconsideration panel found that the criteria of s. 35 had been met and therefore C was bound1by the CA and was obligated to have hired R‘s employees. Comment: was a legislative response to this case in the 1987 Amendments. They had the effect of overiding the decision. For example: only a successorship where a substantial portion of the bus was disposed of; similar functions at same location was not enough; no successorship where bus was disposed of by trustee in bankruptcy unless it was done to avoid CB obligations; and response to key person doctrine (really only applicable in the construction industry) which held that the skills or abilities of an individual do not of themselves constitute a business. -These changes were all repealed in 1992 to reflect the pre-Bill 19 situation. However this should not be taken as an endorsement of the Redskin case and its broad interpretation. This case is really on the edge (not overruled but it is iffy authority). Problem: Safeway and Thrifty‘s pg. 6-78 Facts: building was owned by Seneca. Leased by Safeway who was unionized. Safeway closes that location. On the same day Thrifty‘s signs a lease for the same space and certain equipment that had been left by Safeway - shelves, freezers; checkout stands. Safeway had owed Seneca money and Seneca agreed to take the property instead. 2 month hiatus before opening Issue: How would s. 35 apply? Arg for the union: -nature of the bus is identical; identical location; customer base is identical -‗substantial‘ asset transferred -hiatus is not long and is arguably zero -goodwill - response from Thrifty‘s would be that they are competitors -disposition - Seneca acted as agent of one or both of them. Arg for Thrifty‘s -need some level of conscious interaction by former and current and this (agent idea) is not even close -if you focus on types of locations there will be may well be certain locations that are only appropriate for a narrow range of businesses. Identical location and nature of the business should not be enough on its own -comparison of assets - beef up the assets of Safeway by including their inventory - goal is to try and make the assets of the former store huge so that the transfer of this is insignificant. Show that the common assets are a small portion of Thrifty‘s assets Board: no successorship - not enough connection -even if one satisfies the s.35 criteria the board will not make an order unless there is a reason for doing so. Here there was no labour relations reason. Under the Safeway CA you could bump employee from another Safeway who had less seniority. In actual fact all employee were absorbed - no employee was unemployed as a result. (a) Federal-Provincial Successorship -s. 36 has been added to extend successorship to the situation where a federally regulated business is disposed of in such a manner that it becomes subject to provincial law -Canadian Pacific 1978 - CP transferred ownership of a railway station to its subsidary Marathon Realty (which was subject to prov laws) the union argued that M was bound by CP‘s CA by virtue of the Cda Labour Code‘s successorship provisions. BC board rejected this and said that b/c of division of powers, neither successor provision could apply in such cases. -Any attempt to use s. 36 will clearly prompt a constitutional challenge. (b) Integration of Predecessor Business -the business which was aquired might be unionized as is the acquiring business 9 -Kelly Douglas involved 3 different employers, unions and CA‘s - it was a nightmare. 2 -s. 35(2) and (3) authorize the board in these circumstances to reconsider such issues as abu, union rep and ‗reconcilliation of the various CA (especially the seniority provisions) (c) Advance Rulings -incumbent on prospective purchaser to ascertain the CB rights and liabilities it may be exposed to. -solution seems to be to invoke s.143 and request a declaratory order with respect to a potential successorship application. -Historically the board has been reluctant to issue such orders, suggesting that they will only be considered where there is imminent workplace disruption or an inter-union dispute. [PPG Industries] (d) Privatization and Successorship -during the 80‘s the BC government privatized a number of operations. Assuming that in a successorship the employees only had two choices - become employees of the new employer or quit. -this was wrong - BCGEU v. IRC 1989 court case. Acknowledged that employees could become employees of the successor employer, it noted that there was nothing which compelled it. Employees could therefore choose to remain with their current employer and in arbitral terms the effect of the ‗privatization‘ would be a loss of work and a lay off. Under the terms of a specially negotiated agreement the employees had a number of options, the most Important being the exercise of seniority rights with respect to vacancies and re-training. 4. The ―Key Person‖ Doctrine B. COMMON EMPLOYER (RELATED EMPLOYER) 7-79 1. Code s.38 - associated or related activities or businesses are carried on by or through more than one...[entity], or a combination of them under common control and direction, the board may treat them as constituting one employer for the purposes of the Code and grant such relief, by way of declaration or otherwise, as the board considers appropriate. -allows the board to treat two or more entities as 1 employer for the purposes of the Code. 2. Rationale -can apply to innocent situations - circumstances where an individual has so structured 2 or more entities for reasons completely unrelated to labour relations -generally the majority of cases involve circumstances where the purpose was to evade the Code provisions. Frequently occurs in the construction industry - ‗double-breasting‘. Situation where the principal corp employer whose employees are unionized, sets up a second non-unionized corp and transfers work to that entity. -Baywood Enterprises facilitate the resolution of labour relation issues which are clouded by legal distinctions which are irrelevant to policy issues before the board. to use this section you don‘t need to have proof of malicious intent by the employer; board will not concern itself with employer motivations before reaching its conclusions under s.38 but it will not ignore ev of manifest intent to subvert the purposes of the Code. -allow the board to cut the corp veil and prevent the defeat of the purposes of the act. [Intermountain Industries] 3. Elements/Criteria – Mackin Bros. Sand and Gravel L 107/81 7-80 (a) more than 1 entity carrying on business 9 (198) Lisogar - application refused where one of companies had been dormant since 1981 (not 3 wound up b/c of lawsuit) and there was no reasonable likelihood that it would resume business in the future. (b) common control and direction easiest is where there is ownership could also be found where there is common operational direction - controlled/directed by same person or group of individuals family relations contract - Nationair - although this case was analyzed in terms of who was the ‗real‘ employer and it was unecessary to consider s.38, it would have been found in terms of the K with the two agenices financial control; interrelationship of operations and centralized control of labour relations [Concerned Contractors Action Group (1986) NSLRB] (c) engaged in associated/related activities beyond cases of ―doublebreasting‖ where the activities are identical, the general requirement is that there be some degree of functional integration between the entities: including: complementary activities - horizontally or vertically integrated operations - eg. construction of logging roads and a logging operation, or cement production and production or ready-mix concrete and concrete products operational overlap - could be operating from the same location or using the same assests. Most significant overlap concerns the exchange or capacity of exchanging employees (d) labour relations reason for the order. 4. Retroactive Orders Lorne w. Camozzi Co. Ltd 1986 BCCA - common employer declarations has a retroactive effect back to the time that the non-union entity was established. The significance is that the employer may be liable for breaches of the CA including damages to the union while carrying on business using the non-union entity. 5. Problem general contractor in residential construction XYZ Co. - permanent crew of 10 employees; certified and CA signed; decides that he doesn‘t like terms of CA so goes to solicitor for new company. ABC Co. - all tendering goes out from this new company; hire as and when needed basis - avoids the permanent crew - he is Col employer union finds out - one of options is common employer; another is successorship; ULP (common employer dec is a precent for this - or is it? Could you argue discrimination hiring, ie only non- union, or not XYZ employees? Successorship need former business and current one - one of problems is that XYZ is still formally alive - mere continued existence with no business will not prevent the Board from finding that it has ceased to exist. ‗Key Person‘ - if you looked at XYZ and asked what its assets were you would likely conclude that there weren‘t any except for the owner. Most significant asset is the owner and his reputation; need not be the owner, could just be the person in charge to avoid successorship you might try to ensure that both companies are carrying on business and this would likely be successful. However it would give rise to a common employer problem Common Employer board would find criteria satisfied virtually automatically 9 employer could take the chance but s. 38 can be retroactive. Eg.) from 1994 ABC had to have 4 done everything according to the CA - very expensive. Threat of this is to deter would be double breasters. CHAPTER 9: ECONOMIC SANCTIONS A. INTRODUCTION has always been ambivalence toward the role of the economic sanction from the pluralist perspective. Sort of a comparison between the costs (direct and ‗psychic‘) and the benefits. freedom to contract and agree necessarily assumes a freedom to disagree. Most times the duty to barg in good faith will produce an agreement but often it doesn‘t and that is when economic sanctions come into play. This is where the CB system diverges with the other components in a market economy tacit presumption underlying the CB system is that both the employment status and Collective bargaining relationship will persist indefinitely through one series of negotiations after another. It is precisely for that reason that the means of resolving deadlocks in negotiations between unions and mgmt becomes a serious social issue. some argue that economic sanctions are functionally essential to CB. Sort of a pain theory - in the absence of pain it is highly unlikely that you will get the parties to engage in any form of concessionary behaviour the fact is that it works because the parties are risk adverse. others say that there isn‘t any real alternative interest arbitration could be used to settle outstanding issues. There has been a fair bit of experience with it in Canada and as such we are well aware of the concerns that it raises. Chilling effect - if you know that an outstanding issue is going to be submitted to int/arb it would discourage concession. Narcotic effect - all disputes end up being settled in this way. Incidence of breach of an int/arb agreement is high. Int/arb may know little about the context of the dispute - likely little expertise in the industry involved. What type of criteria do they use - generally they look to comparable analysis - there is not always a comparable reference group. Int/arb is used but it is the exception to the norm and it is used exclusively in essential service designations. B. LEGAL PROHIBITION: THE PEACE OBLIGATION s. 57 of the Code prohibits any strike or lockout during the term of a collective agreement S. 57 is the legal response to the social cost of job stoppages. any disputes that arise during the term of the CA are adjudicated - rights arbitration. every jurisdiction but Sask imposes some sort of peace obligation it is a function al societal insistence upon ‗responsible‘ Collective bargaining. guaranteed periods of peace are seen as good for society b/c the public can predict conflict periods and prepare strike insurance and b/c society is spared the constant economic wastage seen as good for management and labour for similar reasons and also b/c the parties, knowing their fixed obligations for a predetermined period, can plan their affairs accordingly 9 5 quid pro quo explanation - employer gives concessions in exchange for the union giving up the right to strike for the duration of the agreement. Society grants the stat right to CB and the union gives up the right to strike during the agreement. see pg. 9-7 to 8-10 for a discussion of whose interests are being protected by the peace obligation C. STRIKE (PAGE 9-16) 1. Definition (a) Labour Relations Code -- s. 1 found in s. 1. (b) requirements 2 general conditions conduct which adversely affects production or services (work); and this must be promted by some form of ‗Collective‘ or ‗common‘ understanding. This will be readily imputed. Scope very broad in scope - encompasses circumstances well beyond what normally be seen as a strike clearly includes a political strike remedies which could be obtained; (i) cease and desist order; (ii) private/contractual level - absent from work w/o leave gives the employer the right to impose discipline; it would be grieved and potentially adjudicated; (iii) damages - sought by employer or third parties - is possible but the threshold would be a declaration from the board that the strike was illegal eg. CUPW and Cda Post - about 10 years ago on Dec 7 or 8 CUPW announces that it will process all Christmas mail with 10cent stamps. [at this time mail was 15 cents]. This was found to be an illegal strike by the Cda board. also encompasses concerted refusals to work, to continue to work, slowdowns and ‗work to rule‘ campaigns. Problem pg 9/17 Facts: overtime was optional; employees had meeting and decided to refuse all to - this occurs during the term of the CA. Is this a strike? Union Arguments not required to work it - adverse effect ought to be restricted to work which we are required to perform b/c or CA. Result: this arg won‘t work b/c to the extent that overtime work encompasses work that the employees normally do it would be a strike. Assume that it is 2 months until the expiry of the CA - employer is preparing for the possibility of a strike and has workers doing overtime. Odds are better than even that the board would exercise its discretion to not make an order. Would likely say that it is clearly a strike but to the extent that the employer is positioning itself it should be open to employees to refuse to work vol overtime. Likely would rely on s. 133 ‗clean hands‘ (c) Exceptions (i) Health or Safety Stoppages - s. 63(3)(a) 9 act or omission by a tu or by the employees does not constitute a strike if it is required of the health or6 safety of those employees Northwood Pulp and Timber - 2 grounds: subjective - genuine/bona fide good faith belief/concern that their safety or health is threatened; and objective - some reasonable grounds for that belief/concern examples: Computer screen - subjective would be satisfied but would fail objective. Horseshoe Bay - BC ferry ticket booth operators and the big hill. This satisfied both but the board ordered an immediate return to work (ii) Non-Affiliation Clauses - s. 63(3)(b) conduct which would otherwise fall within the definition of strike will be excused if it is based on a non- affil clause in the CA usually found in the building trades and it allows (by agreement) that union members can strike if there are non-union members on the work site. Essentially allows the union members the right to refuse to work with non-union members. operation is subject to broad regulation under s. 70 (declaratory opinion provision) (iii) Honouring a Picket Line the definition of strike in s. 1 expressly excludes a ‗cessation, refusal, omission or act of an employee that occurs as a direct result of and for no other reason than picketing that this permitted by or under this code‖. Thus refusing to cross the picket line does not constitute a strike even though it clearly meets the criteria - clearly adversely affects work; and as far as the common understanding is concerned you don‘t need a meeting or a vote. Give the reality of labour relations it is sufficient to find common understanding when all employee refuse to cross. Employer responses - employer goes and gets a cease and desist order to stop picketing; employer can impose discipline on its own workers; However the majority of CA in BC have a ‗halo‘ clause which provides that there will be no discipline for refusing to cross the line. (e) Procedural Prerequisites to a Lawful Strike page 9-19 Breach of any of these requirements will result in an illegal strike (a) The Collective agreement must have expired [s.57]; (b) Some Collective bargaining must have taken place [s.59(1)]; (c) A majority of the workers in the unit must have voted in favour of the strike [s.60(a)]; (e) The vote must have been taken within the preceding 3 months [s.60(3)(a)]; (f) Written strike notice must have been given to the employer and the board [s.60(3)(b)(i) and (ii)]; (g) 72 hours must have elapsed since the receipt of the written strike notice. [s.60(3)(b)(iii)]. The length of notice may be increased in the case of perishable property [s.55 and 60(4)]; (h) If a mediator is appointed, 48 hours must have elapsed since the union is advised that the mediator has ‗reported out‘ [s.60(3)(b)(iv)]. It follows that any strike after a mediator has been appointed is illegal. (i) Once a strike has commenced, written notice must have been given to the LRB [s.75] 9 D. EMPLOYER SANCTIONS 7 1. Lockout (a) Definition s. 1 “lockout” includes closing a place of employment, a suspension of work or a refusal by an employer to continue to employ a number of his or her employees done to compel his or her employees…to agree to conditions of employment includes the (subjective) requirement that it be done for the purpose of compelling employees to agree to conditions of employment inclusion of this subjective requirement reflects the desire to distinguish between the refusal to continue to employees in the context of a CB dispute as opposed to a temporary of permanent layoff for business reasons. The latter reasons are expressly permitted by s. 63(1), subject to the bonafides of the decision. (b) Requirements - s. 61 and they parallel those for a strike 2. Continuation of Operations and Replacement Workers (a) in the vast majority of cases the employers principal sanction is its ability to ‗take a strike‘ The contest becomes to see who can bear the loss of income the longest (b) this presupposes that a strike will shut down the employer. This will be the case for the vast majority of large employers but their may be smaller employers who may be able to continue their operations in whole or in part. (c) historically the employer could do this relying on existing employees (excluded or working at another site). Where the continued operation required the hiring of ‗replacement workers‘ there were two conditions. 1) employer couldn‘t hire professional strike breakers; 2) could hire ordinary replacement workers but couldn‘t hire permanent ones. In other words, at the conclusion of the strike they could not grant recall preferences to those workers at the expense of those who had participated in the strike (d) BC is just the second jurisdiction to ban replacement workers. [Que is the other.] Just recently there was an amendment to the Cdn Labour Code which will allow the board to ban replacement workers but only in extraordinary circumstances. So no ban unless extraordinary - potential for violence; likely will only be made in the context of a ‗not nice‘ dispute. (e) Replacement Workers -- s.68 of the Code (page 9-21) (i) the categories of persons em/or cannot use is very broad: person hired after notice to commence CB ordinarily works somewhere else transfer from other operations employed, engaged, or supplied to the em/or by by 3rd party to perform the work of an em/ee in the bargaining unit that is on strike or lockout, or the work ordinarily done by a person who is performing the work of an em/ee in the bargaining unit that is on strike or locked out. (ii) prohibition is on using them to perform barg unit work; or doing the work for someone else who is doing barg unit work 9 (iii) employer can‘t compel employee to do barg unit work; no reprisals against the excluded employee who 8 refuses to do barg unit work (iv) assessment -- commentary by different experts [did not look at] violence - use of RW in a significant # of cases typically leads to picket line violence. Roper (task force member) is probably right that in the BC context violence was not a big factor OBU means that from the employer view the option to continue to operate the enterprise are reduced most cases the operations themselves are large so RW not really a feasible option the ethos - the cost of continuing to operate in terms of the relationship with regular employees does not make it feasible. unquestioned result that the ban helps the employee and union barg power. However given OBU the ban would do nothing for employees in big units - eg) 1200 represented by PPWC at Harmac helps smaller units b/c in the event of a strike the prospect of operating with RW was feasible - greatest signifcance for smaller units made up of unskilled workers perhaps seen as a response to the ‗MacDonald workers of the World‘ - recall that they didn‘t go for sectoral certification Que showed a slight increase in unionization in under represented groups but the terms and conditions of employment show relatively little change. average duration of a strike in Cda is 17 -18days - this is not long enough to make RW worth while especially given the potential for escalation of employee ill will employers right to hire replacement workers is to some extent reciprocal to the employees right to go and find other work. We are not banning that so aren‘t we giving the employee a better ability to handle the pain (v) Remedy for violation of s. 68 would be a cease and desist order 3. Other Responses and Considerations (page 9-29) (a) Last offer vote generally the determination of when to submit an employers proposals to a membership vote is determined by the unions barg committee. Could submit and recommend acceptance or rejection. Notwithstanding general situation; s. 78 sets out 2 situations when a vote on the employers last offer will be mandatory (i) so long as the strike/lockout has not begun, the employer may compel the employees in the unit to vote on the ―last offer‖ [78(1)] (ii) a vote on the last offer may be ordered during the course of the strike or lockout where the minister considers that it is in the public interest.[78(6)] In the even of an affirmative vote the result is a binding CA. [78(4)] the provisions of s. 78 apply equally to a vote by the members of an employers org on a tu‘s last offer. (b) Unilateral Alteration of Collective Agreement s.45(2) imposes a new freeze on the terms and conditions of employment ??? this was a response to Paccar (1991) in which the SCC reinstated a decision of the IRC which permitted the employer to unilaterally alter T & C upon expiry of the CA as long as they met its duty to barg in good faith. Why would employer want this right? It is consistent with the notion of residual mgmt rights which prevail in the absence of the CA and employer may feel that the union negotiators are standing in the way of changed terms which the employees might accept and doing this puts the employees to the immediate election of whether to strike 9 s. 45(2)imposes a freeze on the terms and conditions of employment with a view to facilitating collective9 bargaining. if notice to commence CB has been given and the terms of the CA have expired, neither the employer nor the tu shall, except with the consent of the other, alter any term or condition of employment until: a) a strike or lockout has commenced; b) a new CA is negotiated; c) or the right of the tu to represent the employees in the barg unit has been terminated - whichever occurs first. this prevents the terms and conditions from being changed during the renegotiation of the CA. If and employer wishes to change terms and can‘t get the unions approval they can (i) invoke the s.78 mandatory vote; or (ii) invoke a lockout. If following the lockout the employer offers employment on different terms, the employees would be in a position to accept those terms or remain on strike. (c) Status of Strikers s.1(2) makes it clear that employees who are on strike are still employees within the meaning of the Code. buttressed by s. 62 of the Code which ensures the continuation of health and welfare benefits, other than pension benefits, where the tu tenders the premium payments. However, the preservation of employee status does not mean that the employer is prevented from imposing discipline, including discharge, for conduct engaged in during a strike. While such conduct will likely be closely scrutinized in terms of s. 6 considerations, it is by no means unusual where there are cases of picketing line violence E. PICKETING P. 9-31 1. What it is - Picketing Defined Labour Relations Code s 1 .picket ...means attending at or near a person‘s place of business, operations, or employment for the purpose of persuading or attempting to persuade anyone not to: a) enter that place of business, operations or employment, b) deal in or handle that person‘s products, or c) do business with that person s. 64 - a trade union or other person may, at any time and in a manner that does not constitute picketing as defined by the Code, communicate information to a person or publicly express sympathy or support for a person, as to matters or things affecting or relating to T & C of employment or work done or to be done by that person. essentially all picketing is illegal save and except where it is permitted. Communication is ok but picketing is not. Canada Safeway Ltd. and IBEW Local 213 1987 BCLRB p. 9-31 Facts: shopping centre is being built. Owner enters into a contract with Safeway and other future leasees. Owner also enters into a general construction K with Kerkof (they were the major non-union contractor in Vancouver). IBEW was concerned that they would not be hired to work on the shopping centre and believe that Safeway may be in position of influence over the owner and thereby influence Kerkof. [unions were really hoping to convince Safeway not to go into non-union built buildings]. Engage in a leafletting campaign at other Safeway locations. Requested permission from managers to leaflet cars and if it was refused they were to distribute them from the sidewalk. 1 Only refused at 2 stores. Also did mailing/distribution to the homes surrounding the proposed new 0 store. 0 Issue: was this picketing? Analysis: mere persuasion (not to do business with some entity) is not picketing; motivation/purpose was to discourage business with Safeway at or near? yes, leafletting the cars would satisfy this. The pamphlets around the neighbourhood, however, would not satisfy this. leafleting did not fall into the watching and besetting concept - usual means a picket line ‗attending‘ in s. 1 means something less than watching and besetting. Requires more than a fleeting presence; requires communication of the message and receipt of it by the audience must be contemporaneous - only when these two occur together do you have the possibility of industrial relations significance. It is only when the communicator is still there that the societal pressure is present leaflet communicated but they left right away so no contemporaneity - not ‗attending‘ in addition the houses were not ‗at or near place of business‘ Comment: leaflets, advertisements, letters to the editors, radio broad casts do not have sufficient contemporaneity. (a) Problem pg 9-39 not in the materials suppose the IBEW had T-shirts made up and the members wore them and try to find the frozen food section in various Safeway stores for 2 to 3 hours. trade union would argue free speech; it was communication of info and no more Safeway arg - satisfy the contemporaneous requirement, the attending, and the at place of business requirements under the definition. Purpose was to persuade persons not to do business - not explicit persuasion but it is on shirt, so is a veiled effort to persuade. 3 -4 yrs ago readily would have been found to be picketing. likely the same result today but the ambit of communication that would be allowed has opened up b/c of the Charter. Likely not enough to encompass the shirt. why might the board decline to make an order in this case? Safeway could just kick them out, exercise its private property rights; board would feel that there is no need for them to exercise the statutory right b/c Safeway can exercise property rights. contemporaneous notion might be Important b/c of the picket line idea - employees may feel compelled to leave work or not enter the store. If this could be shown the board would make an order. consumer boycotts are ok but hard cases arise where industrial relations issues become involved. (b) Picketing and the Charter since picketing and leafleting are forms of expression, questions have arisen about whether the very serious Code restrictions on these activities violate s. 2(b) of the Charter attempts to challenge picketing initially failed b/c the board held that they were reasonable limits under s. 1 of the Charter. [White Spot] In the K Mart case the Charter arguments met with more success. United Food and Commercial Workers, Local 1518 v. Kmart Ltd – this is the APPEAL TO THE SCC as LRB decision was overturned -- page 9-37 employees from one location, leafleted at another KMart location – the ―secondary location‖ the distribution of leaflets did not interfere with employees at the secondary site nor was there any indication that it interfered with the delivery of supplies. The activity was carried out peacefully and it did not impede public access to the stores. Neither was there any evidence of verbal or physical 1 intimidation. However, some customers appeared confused and some turned away. LRB ordered the 0 union to refrain from picketing at secondary sites. 1 SCC does the defintion of pickieting in the Code infringe s. 2(b) of the Charter, freedom of expression. If so, is it justifiable? The defintion of picketing contained in the Code is overly broad and infringes the Charter and cannot be justified. Consumer leafleting is different than a picket line which acts as a barrier – seeks to persuade through rationale discourse Are consumers able to determine for themselves what course of action to take without being unduly disrupted by the message or manner in which it is distributed? Consumers should be able to choose either to stop to read the material or ignore the leafletter and enter the neutral site unimpeded The message conveyed has to be accurate, not defamatory or otherwise unlawful or entice people to commit unlawful or tortuous acts; The leaflet clearly stated that the dispute was with the primary em/or only Manner of distribution was not coercive or intimidating; Did not involve a large number of people to make it intimidating; Did not unduly impede access; Did not prevent em/ees from working or impede suppliers; Leafleting which complied with these conditions would normally constitutie a valid exercise of freedom of expression carried out by lawful means yet it would be prohibited by the impugned legislation…the definition of picketing in s.1(1) is struck doen and the declaration of invalidity is suspended for six months 2. When is Picketing Permitted? (1) all picketing is prohibited unless permitted by the Code - s. 67 of the Labour Relations Code (2) only during lawful strike/lockout - s. 65 (3) there are prerequisites for a lawful strike (p. 9-19) (a) the collective agreement must have expired (s. 57) (b) some collective bargaining must have taken place (s. 59(1)) (c) a majority of the workers in the unit must have voted in favour of the strike (s. 60(1)) (d) the vote must have taken palce within the preceding three months (s. 60 3 (a)) (e) written strike notice must have been given to the em/or and Board (s. 60 (3) (b) (i) and (ii) (f) 72 hours must have elapsed since receipt of the written stike notice (s. 60 (3) (b) (iii)‘ (g) if a mediator was appointed, 48 hours must have elapsed since the union reported that the mediator has ―reported out‖ (h) Once a strike has commenced, written notice must have been given to the LRB 2. Where Pemitted - Regulation of the Location of Picketing p. 9-39 Introduction general proposition in Canada is that picketing should occur at the place where the employees work and should not be permitted to disrupt the operations of neutral, third party, employers (i) primary site – s. 65(3) this is the only place that employees can picket at without getting the permission of the board (for transfer sites and ally sites, you need the board‘s permission). --s. 65(6) nonetheless, the board can restrict picketing at a primary site. 1 (ii) secondary site – everything that is not a primary site, is a secondary site. All picketing at a secondary site 0 is illegal, unless: 2 (a) secondary site is a ―transferred work site‖ (b) secondary site is the worksite of an ally that was related to the employer: another operation of the same employer or the site of a ‗common employer‘ under s. 38 of the Code. Picketing at these sites was based upon realization that they would help the employer withstand the strike. However this was only a prima facie right, subject to restriction by the board. (iii) common site same site constitutes a primary site for some workers and it is common in the sense that it is shared by some other worker and therefore any picketing would be at a ―secondary site‖ (a) Primary Site (page 9-41) (i) Introduction s.65(3) - ps is referred to as an employee normal place of work note that even if it is a ps you only have a prima facie right to picketing as s. 65(6) allows the Board to restrict/regulate picketing there also note the ps is the only place where employee can picketing without prior approval of the board. (ii) ‗Place of Work‟ Larfarge Canada Inc Western Region and Teamsters 1988 IRC p. 9-41 Facts: Driver carries cement powder for Cement division of Lafarge. One of the customers is Concrete co. Essentially there is a contract between Cement and Concrete whereby the driver delivers cement powder to Cement customers. The ―twist‖ in this case is that the Concrete Co., even though they are in the business of making ready-mix cement, they bought a bulk powder carrier. So, Cement enters into a ―contract‖ with Concrete, the terms of which are: (1) the driver will attend 4-5x per day and will load up with powder and will distribute to various customers, including Cement. The driver is the employee of Cement, picks up cement and does minor maintenance at the silo (sweeps up spilled cement). Cement has no employees who operate out of the silo site. Concrete employees go on strike, including the drivers. The drivers picket the silo site. Analysis: place of work under s. 65(3) is composed of three parts: (Kilcoyne argues that this is a ―notoriously imprecise test‖ and that no decision exists which provides guidance) a) member of barg unit performs work there [rarely hard to satisfy]; b) work done there must be done under the control and direction of employer - does not mean on site supervision, it is enough if the employee goes there b/c he was directed to by employer and generally what they do there is under the employers direction [rarely a large hurdle]; c) THIS IS THE KEY CONSIDERATION: work at this location has to be an integral and substantial part (Kilcoyne argues that the ―substantial‖ part is misleading and that it should only be ―integral‖) of the employer operations. You look at the overall nature of the employer operation and ask if work done at this site is substantial part of the employer operation. It is insufficient if the work done there is fleeting, infrequent [these are temporal requirements] or fortuitous [not planned, or part of a plan to do this]. Union would have to show that it wasn‘t these things. note, if the only thing that the driver did was sweep up spilt cement dust, this would not be integral or substantial fleeting or fortuitous (planned) 1 d) the site or place is a site of a lawful lockout or strike - in the vast majority of cases, the site0or place which satisfies the first three would automatically satisfy the fourth. 3 on these facts Concrete is in the cement delivery business; trucks represent a considerable investment, one if not two employees do the work; revenue is generated from the work on a regular and ongoing basis. This is the site where the bulk driver works from each day and throughout the day. This is enough to satisfy the integral and substantial. The clean up/maintenance work and the unloading of the barge would not be enough. In this context the board refused to do a comparative analysis of the entire workforce of the bu – primary site will not necessarily be the same for all employee in the bargaining unit and a individual member could have two or more. concludes that the silo is a primary site but restricts picketing under 65(6) b/c it was also a common site. Comment: Board feels very strongly that everyone deserves on primary site. For example in the case of a milk delivery person who delivers to a limited # of stores - the board may conclude on the above analysis that the Safeway or Thrifty‘s was the primary site but would invariably restrict picketing b/c of common site. However the board would let you picket at the place where you pick up truck/stock etc. PRIMARY SITE: most cases deal with ―remote‖ work sites example: Island Farms transporting of milk products to several Victoria Safeway stores are the Safeway stores Primary sites? not a primary site: the board could conclude that these ―remote work sites‖ (Safeways) are not really the primary site as attendance there is only ―fleeting‖. The board could say that the seven hours on the road after the time at Island Farms makes the ―drop off‖at Safeway, merely fleeting. common site: Safeway is a common site for both Island Farm workers and Safeway workers. If the Safeway stores are found to be a common site, this triggers 65(6) to immunize Safeway (b) Secondary Site p. 9-46 any place other than a primary site everything else is secondary site - neutral/third party to the dispute Code makes exceptions for only 2 situations: transferred or ally work sites (i) prima facie you can‘t picket at a secondary site (ii) Exceptions: s. 65(4)(a) in both cases, the union would have to obtain the consent of the board! [EXAM HINT] transferred work site - all of employer operations don‘t have to move, a portion would suffice. Must get permission of board to picket. [65(4)(a)]; note: s. 68‘s ban on replacement workers explains why the futility of transferring the work site. ally - 65(1) is the general definition; and 65(2) contains presumption or ally. Basically this involves a person who was neutral at T1 but did something to help employer at T2 and therefore has lost their ―neutrality‖. Need approval of board to picketing.[65(4)(a)] s. 65(1) – general definition of what is an ally: (1) a person in concert or common understanding with a struck employer; who, (2) provides any assistance to the employer in resisting a lawful strike. s. 65(2) - certain persons presumed to be allies if they perform work, supply goods or furnish services of a nature or kind that but for strike would have been done by struck employer and does so for the benefit of the struck employer. 1 classic ally situation: furniture company whose drivers are striking and hires a third party to deliver.0 Note that this supplying of workers by the third party would be caught by the replacement worker ban 4 Coast Casino 1989 IRC not in materials Facts: Organizing Drive at one casino - successful; notice to commence CB given. Response of coast was to rely on extensive litigation strategy. All of the other casinos operating in BC decided that they would assist Coast with its legal fees; so, they all got together, chipped in to create a legal war chest to file these complaints and motions; thus, straightforward assistance Decision: Board found as a fact that it was done to prolong Collective Bargaining in the hopes that the union would go away or in the worse case if a CA was negotiated it would be so bad that their employees wouldn‘t want it. Board found them to be an ally. s. 65(1) is available and is Liquor Distribution Branch and UAW Local and Hiram Walker & Sons Ltd. 1978 BCLRB p. 9-47 Facts: ―incredibly unusual fact situation” Practice of the LDB was to place orders with distilleries and send the goods to the warehouse for storage and distribution to particular stores. Transportation from the warehouse was done by union drivers. LDB becomes aware that CA between H and employees is about to expire. Hiram Walker advises that they are about to go on strike, then, the order is made. (note: there is absolutely nothing preventing a customer from putting in an extra large order in light of an impending strike) LDB places a huge order and stockpiles it. It appears that there was a special deal for this order so that payment was not required until the product was distributed to the outlets (normally, they have to prepay). Decision: union can picket the customer of a struck employer; LDB was found to be an ally. merely calling someone an ―ally‖ is not a horrible designation interpret 65(1) extremely broadly. That is what is assistance is interp expansively. being an ally is not akin to being a criminal - no conspiracy to break the law needed. If you choose to provide assistance then the employee of the struck employer are entitled to attempt to convince you to change your mind note that this case has been considerably narrowed today. 3 criteria for finding an ally: (today‘s analysis) (i) has there been a change in prior dealings with the struck employer and 3rd party? If business as usual then it is not an ally situation. If LDB had not placed that extraordinary order and had continued to place its regular order that would have been ok even though it was assistance. (recall: stockpiling in anticipation of a strike will not, in and of itself, make 3rd party an ally;) (ii) no compelling reason for the change. If the 3rd party has a good reason for departing from bus as usual than even though there was change it won‘t be found to be an ally. The ally must show that there was nothing else that they could do, they had to change for the purposes of preservation/survival. Johnston Terminals - B Co. makes, sells and services computers to Johnston Terminals. B Co. goes on strike and sends out excluded employee to do the service on Johnston Terminals‘ computers. J had no choice, the computer was essential to J‘s business and there was no viable choice for them - economic necessity is an acceptable reason. Kilcoyne argues that this is an odd choice for a ―leading case‖, as there is no ―change in prior dealings‖, as they are doing business as usual; the 1 court should not have even gotten to ―reason for change‖ as there was no 0 change….. 5 Arg not available for LBOARD b/c LBOARD is a monopoly - didn‘t need H.W. to survive as a business. Board didn‘t accept ‗for the good of our customers‘ arg of LBOARD; (iii) change must be significant. Board will look at degree of assistance - minor assistance will be ignored - deminimus concerns. In this case the assistance was of huge importance. Resolution: Board never had to make an order b/c the LBC said that if you find us to be an ally will immediately stop selling H.W. products. Often 3rd parties will pre-agree to return to bus as usual if the board finds them to be an ally. (c) Common Site Picketing for permanent common sites the usual order would be geographic for temporary common sites (eg milk deliverer) the usual order would be temporal (i) Code (1) s. 65(1) - definition of common site picketing; (2) s. 65(6) - basically provides: if legal picketing is taking place (PS/TS w. permission/AS w permission) and the site of that picketing is shared with neutral then 2 step process kicks in: board shall (1) restrict picketing so as to immunize the neutral UNLESS the only way to do this is to ban picketing altogther THEN (2) the board may regulate the picketing as it considers appropriate. (3) Bottom line is that the board can do anything that it thinks is appropriate to immunize the neutral but it can‘t ban. (ii) Sovereign General Insurance Company - Principles 1) Two steps - restrict to immunize 3rd parties UNLESS only way to do so is to ban THEN - you must regulate the picketingg Kil doesn‘t know of a single case where the first step wouldn‘t solve it 2) restrict and regulate are synonyms - at least in terms of the orders that can be given; the board must balance the interests of the parties and allow the picketing to be effective. historically 3 types of orders: geographic - picketing at one geographic location but only one. Eg.) if backdoor to building was available and it was possible for the neutral to still operate using it then the board wouldn‘t allow picketing at backdoor, would confine it to the front door. temporal –Eg.) no pickets between 8-9 and 4-5 every day - allow a window of opportunity if this amount of time would be sufficient for the neutrals employees and customers to get on and off the site. Couldn‘t make it for 3 to 4 am only as that would effectively be a ban. functional - really is just a gloss on the others; extra conditions put on a geographic or temporal order. The board could limit the number of picketers, or can order the union to issue ―picket passes‖. Mitchell Construction is a good example. In another case the quid pro quo for allowing the union the right to picketing at the common site was to order them to issue picketing passes to the drivers who serviced the neutral party 1 Mitchell Construction 0 6 Facts: T1 employer ―X‖ enters into construction contract with a 3rd party ―Y‖ to rebuild part of the mill. T2 ‗x‘ employees go on strike. This case is a classic example of a temporary common site. Y‘s employees are unionized so they will not cross the picketing line. Board order: The fact that ‗X‘ wasn‘t attempting to carry on business made the order easy to make portion of the fence was cut to make a new access to the site and a road was constructed. There was a geographic order which prevented employees picketing the new entrance, they could only picketing the main gate. Y was designated as the gate keeper in terms of who got access thru the gate; Y also had to keep and book and log in everyone who used the gate and provide it to X employee‘s union. This was to ensure that only Y‘s employees were using the gate. Undertaking by Y that its employees will work on the construction site but do barg unit work. [this one not necessary now b/c of ban on RW]. Fact that the construction assists X by building new plant is irrelevant - it is fortuitous. What was Important was that Y and Y‘s 700 employees can continue to work. 3) Different Consideration at step 1 your over riding concern is to immunize at step 2 you are weighing interest - how seriously we will restrict picketing bearing in mind that this is generally a primary site 4) At Step 2 - What goes in the balance? impact on 3rd party - how disruptive is picketingg relative #‘s - eg Larfarge where 1 employee had it as primary site, suppose neutral had 1000 employees is employer attempting to operate business? If yes the board will lean in favour of allowing more picketingg; If no less picketing or more restricted/regulated is the neutral a ‗true‘ stranger? Kelowna Int‟l Regatta Society D 172/86 p. 9-60 note this is a pre-92 decision. Part of the decision is an accurate description of the board‘s discretion to apply part II. Facts: This case is a good example of the grey area between ‘true’ stranger and not a stranger. City of K, employees of city are unionized; K‘s employees do lots of tasks including park maintenance. Once a year there is a regatta - run by the society - venue for the regatta was a city park. Employees want to picketing all primary sites - park was an unquestioned primary site; yet, it is also a common site as at particular times of the year it is the headquarters for the regatta (for one week out of the year, it is also the location of another employer). Society applies under the common site provision to restrain picketing at the park for the duration of the regatta. The union walks out on their employer a couple of weeks before the regatta. The Society was clearly not an ‗ally‘ as it does not satisfy the Hiram Walker requirements. Decision: in deciding not to impose any regulation the board looked at a host of issues. [keep in mind that this is pre‘92. Today, the first step under ….. would be to reasonably restrict the picketing; note, it is impossible to restrict the picketing without totally banning picketing. If the board found that such a restriction would be tantamount to a ban, then they would have to regulate the picketing] (1) relationship between the neutral (Regatta Association) and the city was a significant factor - they concluded that the Regatta Association was not a ‗true stranger‘ Why? 1 some financial relationship between city and Regatta Association – financed partly by 0 the city: in the past when the society lost money the City made good on shortfall 7 city made # of capital improvements to park and they were solely for the purposes of the regatta regatta had the flavour of a municipally sponsored event; really was conducted as a joint venture; City reaps significant benefits from having the event. (2) second consideration was the fact that it wasn’t a strike but a lockout by the city. This was against the backdrop of municipal CB in general where the lockout was becoming the method of settlement. Lockout was an attractive way to balance the books and ―who really cares if there is a municipal workers strike/lockout‖ (note: as of a few years ago, 80% of all municipalities expenditures are wage-related; thus if at the end of the year the municipality is short, a strike and not having to pay these wages, helps to ―balance the books‖) (further, who cares if municipal workers go on strike?…..garbage is the only concern and it only matters in the hot summer months). Board basically forms an opinion about bargaining power - use power to regulate picketing to allow the picketing to go ahead here b/c of there sense of disproportionate bargaining power. [BC board is unique in looking at bargaining power - most boards refuse to look at it] Comment: But for the view on bargaining power would the board have nonetheless permitted picketing? likely not. note: the board in Kelowna Regatta said that a union is entitled to picket 3rd parties in an attempt to convince them not to do business with the employers—this is wrong (d) Separate Divisions p. 9-64 (i) ought employees (in a lawful strike) be entitled to picket the other operations of their employer? historically in BC (1973) the answer was yes but it was subject to regulation from 1975 on the board to restrict picketing quite significantly and did so with the (back door) blessing of the trade union. The trade unions were concerned about the other employees interest; for example in Domtar where the CA sought at the warehouse was a significant improvement over the one Gypsum received. The board refused to let them picketing at the gypsum plant. in 1985 there was a ban on this type of picketing - they called the other operation a secondary site (ii) now we have s. 65(8) – For the purpose of this section, divisions or other parts of a corporation or firm, if they are separate and distinct operations must be treated as separate employers. So, if you have two operations of a single entity and they are operated as independent/separate and distinct business/operations then for the purposes of the Code they will be treated as separate entities/employer. it is in the context of common site restrictions that (8) becomes particularly significant. On the assumption that separate divisions of an employee‘s operation will typically share premises, the result is that the board must attempt to insulate the ‗uninvolved‘ division from the picketing of the struck division (iii) How it works: 1) onus is on the employer to demonstrate that the two operations are separate and distinct; and if the employer can demonstrate this, then the board will treat it as a common site. note ownership is irrelevant 1 0 2) s. 38 (common employer declaration) is not available to circumvent s. 65(8). The best way to 8 think about this is that s. 38 has absolutely nothing to do with s. 65(8) Why? Because of the phrase ‗for the purposes of this section‘ in subsection (8). 3) General Test for Separate and Distinct [Ellwood Properties] a) Are these two operations run as separate and distinct businesses? nature of control and direction over the divisions - to what extent are the major decisions made at the principal corp level or within the two operations themselves. Are they subject to common control and direction or are they run in a relatively autonomous fashion? If at the division level you look at the second question. b) interrelationship between the divisions - is there an arms-length relationship between the two divisions? are they competition? (if so, that is clear that they are separate and distinct) do they share equipment? do they share employees? 4) Are these two operations run as separate and distinct businesses? Considerations for Control/direction level of supervision by the parent over the divisions authority of divisions to authorize expenditures for inventory and capital items authority of parent to restructure the nature of the business or the divison or a product line of the division authority of the parent to make operational decisions affecting production and personnel at the division(s) authority of the parent of labour relations and personnel matters, including CB, greivances and arb authority of the parent to set policies with regard to sales, advertising, marketing and pricing of the divisions products or services the extent to which the corporate structure of the parent mitigates the effects of a lawful dispute at one of the divisions whether the parent shares premises of facilities with the division or divsions, locates in the same geographic area, or constitutes itself as one part or division of the enterprise 5) Considerations for Relationship among divisions whether to operations of the divisions are vertically or horizontally integrated whether there is an interchange or work, machinery or personnel whether there are common premises, facilities or equipment whether the divisions perform the same or similar services or produce the same or similar products whether the divisions service the same or similar customers the nature of the financial, accounting, and payroll arrangements employed by the divisions the presence of an arms-lenght relationship in dealings among divisions whether there is competition among the divisons for customers or contracts whether the employees of the divisions are in separate barg units whether the divisions share services such as marketing, advertising or transportation the extent to which the parent corporation serves as a link between the various divisions the common skills or expertise among the employees of the various divisions. 1 Thus in Lafarge without s. 65(8) provision the employees could have picketed at the silo site….in response the 0 employers engaged in corporate restructuring to ensure that it would appear that the businesses were separate and9 distinct. b. Picketing at Federally Regulated Location Canada Labour Code Chapter 10 – Administration of a Collective Agreement Introduction 1. section 84 (2) Every collective agreement must contain a provision for final and conclusive settlement without stoppage of work, by arbitration or another method agreed to by the parties, of all disputes between the persons bound by the agreement respecting its interpretation, application, operation or alleged violation, including a question as to whether a matter is arbitrable. The subject matter of a typical collective agreement can be divided into six categories: general terms, security clauses, settlement of disputes, wages and hours, conditions of work and fringe benefits. The grievance procedure involves discussions between the parties with a view toward negotiating a settlement of disputes arising during the term of the collective agreement. THE ARBITRATION PROCESS 1. Mandate Section 82 (1) It is the purpose of this part to constitute methods and procedures for determining grievances and resolving disputes under the provisions of a collective agreement without stoppages of work. (2) An arbitration board, to further the purpose expressed in subsection (1) must have regard to the real substance of the matters in dispute and the respective merit of the positions of the parties to it under the terms of the collective agreement, and must apply principles consistent with the industrial relations policy of this Code and is not bound by a strict legal interpretation of the issue in dispute. 2. Process and Powers the arbitration hearing the remedial authority of the arbitrator expediated arbitration 1 C. DISCIPLINE 1 0 1. Labour Relations Code Section 84 (1) Every collective agreement must contain a provision governing dismissal or discipline of an em/ee bound by the agreement, and that or another provision must require that the em/or have a just and reasonable cause for dismissal or discipline of an em/ee, but this section does not prohibit the parties to a collective agreement from including in it a different provision for employment of certain em/ees on a probationary basis. (b) s. 84(2) - every CA must have a provision for final and conclusive settlement without stoppage of work, by arbitration. Term to settle grievances by arbitration during the term of the CA. (c) arbitration is a private dispute resolution process; parties determine the precise nature of the arbitration - single arbitrator, tripartite arb board - wingers and an independent chair is the norm. (d) grievance is the procedure any dispute must go through before you end up at arbitration. Various steps in the greivance process will be laid out in the CA. Generally: 1) the employee will take up dispute with immediate supervisor and shop steward; 2)....rise up the hierarchy. The steps of the greivance procedure are designed so that both the company and the union can explore various avenues of settlement in order to avoid the necessity of binding arbitration. (e) maj are settled or abandoned - well below 5% make it to arbitration. (f) over 40% of all arbitrations involve discipline. 2. Principles - William Scott – JC / Pen / substitution (a) just cause for some discipline? No -end; Yes - go to second question; Just cause for the most part it is identical to Common law ‗cause‘ for summary dismissal – recall just cause (from Regina and Arthurs) : loyalty, fidelity, good faith, insubordination; conflict of interest some differences: incompetence may provide cause for some discipline under Collective Bargaining; other arbitrators say that incompetence provides cause for imposition of non-disciplinary penalty - both really lead to the same thing even though the same headings are used the standard varies significantly insubordination - a single act will provide cause for summary dismissal under Common law will provide just cause for some discipline but degree of insubordination would have to be significant if insubordination is by the union steward then more insubordination would be required b/c to some extent the role of the steward is to be insubordinate. recall that under a CB regime the employer has more options than just discharge - warnings, suspensions etc. These weren‘t available under Col. B/c of seriousness of discharge under CB there is an inclination that the lesser penalties be used first. (b) was the penalty appropriate? what is the appropriate penalty? (if it is not appropriate, the arbitrator can substitute penalty) Criteria for assessing the penalty [Steel Equipment Co. Ltd (1964) p. 10-11 (i) Nature of the employee‘s misconduct seriousness (theft, fraud, assault of supervisor are the ―capital crimes‖ and will likely lead to discharge) 1 1 pre-meditated or spur of the moment (White Spot employee was drinking wine through a straw, thus it is clear that she was attempting to hide it….) 1 intent (ii) Employer Conduct previous enforcement; has the employer previously enforced this particular offence? (similar to Stein: is the employer, somehow, through its lack of enforcement in the past sent a message that this type of offence is not really that serious?) previous penalties for similar conduct; there is a notion of wanting to avoid discriminatory penalties. notice that the conduct would provide cause failure to permit employee explanation (iii) Employee Considerations seniority? length of service may mitigate—a very senior employee would have to punch out a supervisor or steal a lot of money to be discharged. disciplinary record work record impact on employee (‘unique hardship’) apology the general assessment is towards corrective discipline; note in Cook, he was involved in serious misconduct, but this was determined to be a result of his alcoholism and he was reinstated, but was not compensated for the time that he was suspended (1 year). 3. Reinstatement should the arbitrator always reinstate the griever where it finds that there was not just cause for the dismissal? Different in BC b/c the process is heavily regulated by legislation BC Credit Union case - clear message that where there is no just cause for dismissal, only in the most exceptional circumstances will the arb be acting in a manner consistent with s. 89(d) and s. 84(1) in declining to reinstate the greivor into his former position. Reinstatement may not be possible where: the employee job has become redundant, the employee does not want to return to work; or where he has become incapable of doing the job. Employees in BC have a statutory form of job security 4. Illustrations perspective - rehabilitation (correct discipline) - what discipline will be most appropriate in correcting the employee action doctrines which are applicable b/c of this perspective (a) doctrine of progressive discipline - assumption that employer starts with minimal penalty and works his/her way up. Eg. oral warning, written warning, negative comment in personal evaluation; 1 day suspension; 1 week; 1 month etc. Where an employer has employee that they no longer want and there is no serious incident (allow you to jump up rungs) they see it as a minimum of two trips to arbitration before they can be dismissed. (b) doctrine of culminating incidents - in appropriate cases where the employee engaged in misconduct, when the board/arb moves to appropriate penalty consideration they will/can look at other misconduct of the employee. Re Cook v. The Crown in Right of Ontario (1979) p. 10-12 Facts: C was a safety construction worker who had been discharged by the Min of L after being found to have submitted 55 fraudulent inspection reports and fraudulent travel expense reports. Request by C that the penalty be reduced b/c his conduct was due to alcoholism and he has made efforts to control the problem 1 Decision: fraudulent conduct can‘t be condoned; nevertheless, the circumstances of this case show the 1 discharge was excessive and lesser penalty should be substituted. 2 arbitral law relating to alcoholism is unique, there is a strong inclination against discipline. [backlash today b/c of low success rate of reinstatement] but for the alcoholism discipline clearly would have been warranted and dismissal would not have been unreasonable expert w testified that his conduct was caused by alcoholism - fraudulent reports gave him more time to drink; alcoholism is a disease (Cook could have filed a complaint with the Human Rights Commission - discrimination on basis of medical condition is prohibited - alcoholism is a medical condition. Meorin’s criteria: (1) is the purpose (prohibition on alcoholism) rationally connected to the job? (2) is it (3) is it necessary to (4) was it impossible for Ont. to accommodate this, short of an undue hardship? C had made efforts at rehabilitation and strong evidence that rehab would be successful Conditions imposed on reinstatement were significant only reinstated as of arb award - so roughly a 12 month suspension, circa 35,000 penalty, loss of seniority rights but he still has job. Comment: this is the common response of board in very serious cases like this now employer would ask for order from the Board that this is the last chance and any misconduct is ground for prima facie dismissal. Such an order is not binding on subsequent board but would have weight. RE Canadian Pacific Ltd and United Transportation Union 1987 Cda Board 10-14 Facts: greivor was train conductor for CP. Charged with cultivation of marijuana. 104 plants on his property. Charge was dismissed for delay of prosecution, it did prompt an investigation by employer. Initially on advice from lawyer he refused to answer any questions. He was suspended. He did eventually answer but employer didn‘t accept answer that wife did it. This, combined with refusal to take a drug test prompted dismissal. Decision: relatively strong case for the employee on first blush (1) doesn‘t say level of seniority but Kil assumes it was high as he was a conductor (10-12 yrs is midpt) (2) he was in senior position - employer thought he was good employee b/c of promotions (3) employee has spotless disciplinary record (4) employee has reasonable explanation for not answering - lawyer, outstanding criminal investigation (5) refusal to submit to drug test - explanation they are highly intrusive (6) no work manifestation of drug use - private/public distinction (7) jurisprudence with respect to alcohol not withstanding those factors there was no question that he would lose. why was the discharge upheld? public safety concern - case arose after Hinton rail disaster; in the context of mandatory drug tests in the US - war on drugs he lied!!!!!!! didn‘t fess up; didn‘t come clean Kilcoyne says that this is the issue and he is sure that he relied on advice from criminal lawyer with respect to a labour relations issue - bad idea - advice should have been to fess up - honesty would have provided almost certainty of reinstatement subject to conditions including random drug testing what is the real concern with the 104 plants????? 1 (1) that he is going to show up to work stoned and would not be able to do his work and 1 would be unsafe 3 (2) that he is going to traffic on the job (there is support for this from the U.S….this is suspect as the report comes from the DEA and this director has an interest in ensuring that there is a drug problem…otherwise, they would not have a job…) (3) reputation of the employer (not a job related concern, but an argument that this will have an adverse effect on the employer‘s economic interests) “the employer need not wait for a scathing editorial to take action” Comment: general line from the board is that employer couldn‘t terminate if just charged - discussion around whether employer can suspend and do they have to provide pay. to suspend all you need it valid business reason - pretty minimal best bet would be to suspend with pay pending internal investigation - if own investigation leads to finding to fault employer can terminate even though the criminal investigation is not complete. CHAPTER 11: DIRECT STATUTORY REGULATION A. EMPLOYMENT STANDARDS ACT 1. Mandatory (3) all provisions of ESA are mandatory; can‘t K out [Machtinger] (4) applies to Col and CA but only if the provisions in CA are less than ESA minimums; or don‘t discuss issue at all. Eg. group termination provisions - most CA‘s didn‘t have them, changing now. A few weird situations exist where the ESA changes and CA haven‘t caught up - parental leave. 2. Topics (5) familiarity with RN - individual and group is all that is expected (6) others see 11-2 3. Coverage Application (7) employees - Becker Milk; Ming Court; Fenton Fenton - resident of penal institution with work program. F claims that certain provisions of the ESA ought to apply to him. Court rejects this. Looks at program and uses economic benefit test - operation is losing money, there is no economic benefit so workers aren‘t employees Comment - reasoning doesn‘t really hang together. Kil sees it as an application or stat purpose test; work being done for therapeutic reason and is not an end in it self. (8) exclusion.exemptions statutory - act, regulations directors orders - ad hoc exemptions for precise situations 4. Link between ESA and Wrongful Dismissal (9) when notice doesn‘t even meet ESA - not worth pursuing a wrongful dismissal if person is at a junior rank as they likely wouldn‘t get more than minimal notice anyway (esp with Southins J. reasoning). On a cost benefit analysis you would advise that the Employment Standards Branch is the best way to go. 1 3. Criteria for Assessing Penalty 1 4 3. Grds / JIC 4. Pen u = street equipment – misconduct – serious - pre-meditation o em/er conduct o em/ee conduct Illness 4. Illustrations Re Cook v the Crown in the Right of Ontario Re Canadian Pacific Ltd and United Transportation Union Cook CPA 1. Public safety 1. 104 marijuana plants If he is an addict, it is a physical disability. If it is a recreational user, there is no duty. Thinking about Canada Safeway case What about a registered nurse that speaks against abortions? She can be transferred. Question about off-duty conduct – to what extent can protecting financial interest limit off-duty behaviour.
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