Labour Management Relations
Grant Mitchell – Fall, 2002
Advice for exam:
Know S.6, S.7 and S. 9 inside out.
Know the time-lines for union certification, de-certification
Answer the problem in the handout
Know the case law on both sides of the arbitration exercise.
In contract, express terms take priority over implied. Implied terms apply when there are no
related express terms.
Statutory implied terms:
minimum wage, 8-hrs/day, 5 days/wk, option to work Sunday.
Common Law implied terms:
Reasonable notice of termination. What is reasonable in the circumstances?
Principal of Fundamental Breach: rescission available, or cancellation of contract with
damages. What is fundamental?
o Rate of pay. If employer refuses to honour contract, then it amounts to
constructive dismissal (consider this in the context of duty to bargain in good
faith, and possible refusal to honour contract). The remedy in labour law,
however, unlike C/L, allows for specific performance (get job back).
o For employee, fundamental breach would be non-attendance, theft, working for
competition, insubordination. just cause for termination without notice.
Breach of contract: damages only. Not rescission, if there is only a breach of a term, b/c
not fundamental to contract.
Standard of review – patently unreasonable (jurisdictional error) right of judicial review.
Arbitration boards are used for breach of contract grievances.
Labour Relations Board is used for certification, duty to bargain in good faith, alleged breaches of
Statutory – common employer clause
S.59 If company has two businesses (―A‖ and ―B‖) and ―A‖ made a contract with the employer,
but ―B‖ then takes over, union can apply under S. 59 ―common employer‖ clause.
II – THE RIGHT TO ORGANIZE
MLRA Preamble: it is in the public interest to further harmonious relations between employers and
employees by encouraging the practice and procedure of collective bargaining between employers and
The Criminal Code of Canada: s. 425 makes it a criminal offence, in effect, to fire union organizers, but
this is an imperfect protection because:
there is no remedy for the employee
penalty may not deter
it doesn’t prevent the employer from taking other actions to prevent unionization.
It may be difficult to identify the guilty party.
Canadair v. The King (1948, Que. K.B.)
Failed attempt to use S. 425.
it is not an offence to dismiss an employee for ―disruptive‖ conduct, whether or not related to union
However, one could argue that the case was wrongly decided, in that it was based on a situation of inter-
union rivalry, whereas s. 425 was meant to address antagonistic action by employer against a union, which
in a post-Charter era would amount to a threat to freedom of association.
The “sensitive period”
The time between the first act of organizing until ultimate certification.
Rights of employee (FOCUS ON EMPLOYEE)
s. 5(1) Every employee has the right.
(a) to be a member of a union;
(b) to participate in union activities; and
(c) to participate in the organization of a union.
Interference with rights
s. 5(3) Anyone who interferes with the above rights commits an unfair labour practice (ULP).
REMEDIES for unfair labour practices (MAJOR CONSEQUENCES FOR A ULP)
s. 31(4) (a) Reinstatement of a terminated employee
(b) Order to employ someone wrongfully refused employment
(d) Compensation for diminished income, loss of employment benefits or other loss (―MAKE
(e) If no loss sustained, nominal damages not exceeding $2,000 (PER EMPLOYEE?)
(g) Order to cease and desist from activity constituting ULP
(h) Order to rectify any situation resulting from ULP
(i) Order to offending party to do or refrain from doing anything required to remedy ULP.
s. 31(5) the party need not have been convicted or sued for damages in respect of the ULP.
SECTION 6 -- Interference with union activities (UNION IS VICTIM. ONUS ON UNION TO
SHOW ADVERSE EFFECT. NO NEED FOR MOTIVE)
s. 6(1) Any employer (or representative) who participates in or interferes with the formation, selection or
administration of a union, or the representation of employees by a union, commits an ULP.
e.g. seconding someone to form an in-house union would be a ULP.
Have to deal with the union chosen by employees.
Subject to 32(1) (immediately below) (freedom of speech)
do not have to establish motive BUT, must prove adverse effect.
Firing of employee hard to sign up new members? Not conclusive. They might have been
reluctant anyway. Need more.
s. 6(3) It is not an ULP to
(a) permit employee or union representative to conduct union business during working hours,
without deduction of time or wages;
(b) provide transportation to union representatives for purposes of collective bargaining;
(c) permit union to use employer’s premises for union business;
(d) appear on an application for certification, etc., for the purpose of providing information with
respect to the appropriateness or size of a bargaining unit;
(e) contribute to employee pension, health or welfare funds; or
* (f) communicate to an employee a statement of fact or an opinion reasonably held with respect
to the employer’s business. (Badly drafted, too vague. Thanks Socreds)
See also S. 25 below: it is an offence to question someone about membership in a union, unless that info is
required to comply with CA
Freedom of speech
s. 32(1) Nothing in the Act deprives any person of freedom of speech, so long as he does not use
intimidation, coercion, threats or undue influence — or interfere with the formation or selection of a union.
Discrimination due to union activity (EMPLOYEE IS VICTIM. DON’T HAVE TO PROVE
EFFECT. ONUS ON EMPLOYER TO DISPROVE IMPROPER MOTIVE.)
s. 7 An employer commits an ULP if he refuses to employ, terminates, or discriminates in regard to
employment against any person because the person
(1) is or was a member of a union;
(2) has been involved in union activities or organization; or
(3) (generally) is or has been involved in any proceeding under the L.R.A. or any other act,
unless the employer satisfies the board that his actions were not undertaken because of any of the above
reasons. (onus on employer to dispel adverse inference of improper motive)
Notes on S. 7
(1) ―Discrimination‖ interpreted very broadly and could include demotion, wage reduction, etc.
(2) The protection is extended not only to union members and organizers, but also to those who
have filed any complaint under any act, have testified, made disclosures or otherwise
participated in any proceeding under any act, or have exercised any other right under any
other act. The purpose of the section, then, is to ensure that employment is refused only on
bona fide grounds.
The onus of proof under s. 7
(1) Union or employee must prove 3 elements for a prima facie case:
(a) actions of employer
(b) participation in protected activity by employee
(c) discrimination by employer (not motive)
(2) Then, employer must prove just cause – that her actions were not attributable to the
employee’s participation in the protected activities.
A s.7 complaint might also be dealt with under s.6, but the complainant would also have to show a negative
effect on the union as a result of the employer’s actions. On the other hand, a s. 6 complaint may be
successful without any evidence of anti-union motive, which is a necessary element of s. 7. Try arguing
Defence: s. 32(2) (proper and sufficient cause.)
Discrimination during “sensitive period” (similar to s.7: employee the target)
s. 9 An employer commits an ULP if, during the organizational period he discriminates against an
employee who is a member of the union or has applied for membership, unless he satisfies the board that
the ―discrimination‖ was not in any way affected by the employee’s affiliation with the union.
Section 7 vs Section 9
s. 9 is available only during the ―sensitive‖ period of organization while s. 7 is always available. However,
s. 9 is often useful because the standard of proof is lower. In 9, any presence of anti-union animus will do.
In 7, it has to be a cause of the discrimination..
“THE TAINT TEST”: What’s the difference between S. 7 and S. 9?
Northern Meats (1992) is authority for using a “taint test” to determine the meaning of
“because” in s.7. the test entails an examination of whether the employer’s action against the
employee was in any way affected by the employee’s affiliation with the union. A ULP was found
in Northern Meats, even though s. 7 requires that the union affiliation actually be a cause of the
In Barrie Examiner, however, there was a subtle difference. It was clear that the
employer’s decision was motivated at least in part by anti-union animus, but that was not
sufficient for a finding of a ULP. The board applied a “but for” test to the decision to dismiss.
It then found a ULP under a section similar to s. 7. Under this model, a ULP could be found where
the employer was highly tempted to discriminate, but union involvement was the last straw (in other
words, the ―but for‖ test is satisfied). The test is slightly less harsh on the employer than the
Northern Meats test.
A successful S. 9. complaint comes closer to the Northern Meats test. The employer
could have intended to fire the employee anyway, but if the normal course of action was altered in
the slightest way, a ULP would be found in the presence of any anti-union animus. No ―but for‖ test
would be met, or required, and a ULP could still be found. However, S. 9 has one subtle difference
even from Northern Meats. It is that it appears not to require that the union first establish a
prima facie case for anti-union animus. A simple act of discrimination places on the employer
the onus of establishing there was no anti-union animus.
(Question for Grant Mitchell: does s. 9 imply a ―but for‖ test?)
While Northern Meats is more recent, and more local, it may also be an outlier on the labour
law scene, and since stare decisis carries little weight in arbitrations, Barrie Examiner can still be
(To try to defeat a finding of ULP, try arguing that it appears union membership gives carte
blanche to flout management authority. A person who is not involved in the union can be fired for
certain behaviour, but equivalent behaviour cannot be similarly sanctioned in a union activist.
Inconsistent with other principles expressed in the act, such as the principle of non-discrimination in
s. 10(1) Once a union has applied for certification, and before the application is considered, the employer
commits an ULP if he alters employee wages or any other term or condition of employment without the
consent of the board. This is the case regardless of the motives of the employer in so doing (i.e., strict
liability). (It’s a ―business as usual‖ restriction) (Note: this section does not cover the entire ―sensitive
s. 10(2) For 90 days after the union is certified, the employer continues to be prohibited from altering any
terms and conditions of employment. (To facilitate collective bargaining.)
s. 10(3) Anytime before the expiry of the s. 10(2) freeze, the union can apply for an extension.
Freeze after termination of collective agreement
s. 10(4) For 12 months after a collective agreement has terminated, it is an ULP for the employer to alter
any terms or conditions of employment in effect at the time the agreement terminated, unless
(a) the certification of the union is cancelled or its bargaining rights terminated; or
(b) there has been a strike or lockout during that time.
(In effect, an ―expired‖ collective agreement can remain in force for up to 12 months if no new agreement
More unfair labour practices
s. 17 It is an ULP
(a) to deny any pension rights or benefits to an employee because he goes on strike or is
dismissed contrary to the Act; or
(b) to seek by intimidation, coercion, threats, penalties or promises to compel any person to
refrain from , inter alia, participation in union activities or the exercise of rights or obligations
under this or any Act. (If threat achieves effect, see s. 6)
(The equivalent of CCC s. 425)
Interference with union representatives
s. 21(1) It is an ULP for an employer to interfere with a union representative’s visiting employees on the
employer’s land (i.e., can’t assert trespass rights).
Interrogation of employees
s. 25 It is an ULP for an employer to inquire of an employee or prospective employee whether that person
is a member of a union, has applied for membership in a union or has exercised any other rights under the
Act—unless, per s. 25(2), that information is required by the employer for the purpose of complying with
the collective agreement.
Complaint alleging unfair labour practice
s. 30(1) and (2) (If there is undue delay in filing a ULP complaint, the board may refuse to accept it.)
Disposition of complaint
s. 30(3) The board may
(a) refer the complaint to a representative of the board for purposes of subsection (4); or
(b) proceed directly to hold a hearing into the alleged unfair labour practice; or
(c) at any time decline to take further action on the complaint.
Duties of board representative
s. 30(4) A representative of the board to whom a complaint is referred under clause (3)(a) shall
(a) inquire into the alleged unfair labour practice;
(b) endeavour to effect a settlement of the complaint between the parties….
(c) report to the board
(i) the results of the inquiry, and
(ii) where applicable, whether the alleged unfair labour practice has been settled to the
satisfaction of every person, union or employers' organization affected thereby.
Unfair labour practice not offence
s. 31(6) An unfair labour practice is not an offence. (Therefore not punitive, standard of proof BoP, no
right to consult a lawyer.)
s. 32(2) Nothing in the Act affects the right of an employer to discipline or terminate employees for proper
and sufficient cause.
Rights against trespass
s. 33 Subject to [s. 21], nothing in the Act authorizes any person to disrupt the employer’s business by
attempting to organize a union on the employer’s premises during working hours.
Disruption of operations
s. 33(2) Nothing in this Part authorizes any person to disrupt the ongoing operation of an employer's
workplace by attempting, during the working hours of an employee at the workplace, to persuade the
(a) to become, or continue to be; or
(b) to refrain from becoming or continuing to be;
a member of a union.
Suspension or discontinuance of operations
s. 94 Nothing in this Act prohibits the suspension or discontinuance of operations in an employer's
workplace, in whole or in part, where the suspension or discontinuance does not constitute a lockout or
strike and is for a cause not contrary to this Act.
Barrie Examiner (1976, Ontario)
Employee, angered by the loss of his camera, which was uninsured by the company’s insurance policy,
swore at the publisher and was fired. The union had only recently been certified, and it was obvious that
there was real resentment on the part of management. Specifically, management had interrogated
employees about involvement in the union (s. 25); threats had been made, both to this employee and to
others, about job security (s. 17, or at least s. 6); expected pay raises had been denied (ss. 6, 7 and possibly
10); asked employees how they would respond to the firing of the city editor (ss. 5, 6, 7, 17); instituted new
policies concerning vacations and written warnings (s. 10, although it could be argued that the new,
unionized conditions necessitated this).
As the union had already been certified, the claim of an ULP was framed in the equivalent of s. 7,
which prohibits discrimination caused by anti-union animus. The employer responded that its conduct was
justified under s. 32, as there was just cause for the firing.
In this case, anti-union animus was clearly present:
(1) Employer’s pre-certification pattern of anti-union conduct (as above).
(2) Some of that conduct was directed at this employee directly.
(3) The employee had always been considered loyal and valuable, and so it was difficult to prove
that he would have been fired for this incident if not for anti-union animus.
Evidentiary issue: the lack of candour by employer’s witnesses meant that it could not discharge its burden
of proof, and in a case like this where good arguments could be made by both sides, the board found that
the verdict turned on the burden of proof. Because the employer failed to discharge the onus, it lost the
Remedy: (1) Reinstatement
(2) Full compensation for lost wages (i.e., no punishment for misconduct!)
(Note that the union did not file any complaint about the pre-certification ULPs; probably, this was because
they had enough support that certification was not in jeopardy. The post-certification complaint, on the
other hand, was to remedy the loss of a job, which was more serious than the previous offences—and, it
should be noted, this quick complaint gave the union a good, early chance to flex its muscles before
heading to the bargaining table.)
Held, this was a ULP. Although the publisher did have cause to dismiss the employee, the other
factors needed to be taken into account. A new test was enunciated, which looks suspiciously like the s. 9
1. The Union must establish a prima facie case in support of its claim of anti-union animus.
Then onus shifts to employer:
1. To prove that the reasons given for the termination were the only reasons; and
2. If there were other reasons, they must not have involved any anti-union animus. In other words, if
the actions were tainted in any way by anti-union animus, the causation element of s. 7 is satisfied.
The key test: ―But for the anti-union animus, would this incident have caused this employee to be
To overcome an adverse finding under section 7, the Employer must show not only that it
had a legitimate motive, but also that it had no anti-union animus whatsoever.
S.7 is, in effect, a strict liability section, in that if a prima facie case for improper
discrimination can be made out, the onus is on the employer to establish that anti-union
animus was in no way an element of its decision.
the effect of the reversal of the onus of proof is to require the employer to establish two
fundamental facts - first, that the reasons given for the discharge are the only reasons and,
second, that these reasons are not tainted by any anti-union motive.
University of Manitoba v. CUPE (1990)
Anthropology dept laid off all teaching assistants in the newly-formed bargaining unit, and replacing with
research assistants and lecturers, who were not. Two were hired back, but not the CUPE rep, whose reviews
had been ―glowing‖. Dept sd seniority interfered with the academic freedom of the dept. ―No pattern of
anti-union conduct as in The Barrie Examiner. Nevertheless, the facts point to an attitude and motivation
which was effectively anti-union in this particular case.‖
To overcome an adverse finding under section 7, the Employer must show not only that it had a
legitimate motive, but also that it had no anti-union animus whatsoever. If even one reason for a
layoff is related to union activity, a breach has been committed.
Communications Workers and A.A.S. Tele-communications (1977) (Ont)
Three employees were fired: one manager (B) and two employees (P and S). Both of the employees had
joined the new union, and B had encouraged them to do so, but employer claimed that the dismissals were
unrelated (even though the reasons went back several weeks) and that there was just cause. After the
complaints were filed, employer reinstated P but soon fired her again; B was also re-hired but in a lower-
level position. Complaints were filed under ss. 6 and 7.
NOTE: Although the onus of proof under s. 6 is on the union, while the employer bears the
onus under s. 7, the union had to complain under both sections because s. 7 would not have
helped B, as it applies only to ―employees‖ and not management.
Held, all three dismissals were ULPs.
(1) Firing P and S was clearly based on anti-union animus, and so s. 7 was infringed. As for P’s
subsequent reinstatement and re-firing for ―cause‖, the employer failed to provide the
―overwhelming proof‖ necessary to prove that the second dismissal was not just an extension
of the first.
(2) As for B, while it would be repugnant to the scheme of the Act to extend s. 7 protection to
management, since it could impede loyalty to the employer, the union’s s. 6 right not to have
its activities interfered with by management was infringed by the ―chilling effect‖ of the firing
of B, a known union sympathizer. Board rejected employer’s argument that B’s actions were
just the type of ―interference‖ supposedly prohibited by s. 6, since B could not be said to have
been acting ―on behalf of‖ the employer.
The employer’s just cause arguments were rejected by the board, as the incidents now raised had
been known to the employer for some time and never acted upon (understandably, as they were quite
trivial). It was just too coincidental that the firings all happened on the same day, just as the union was
gaining steam, and that the employer knew that all three were involved in the union.
However, the board also rejected the union’s argument that the incidents relied upon by employer
were illegitimate because they were based on hearsay; as long as the information is received bona fide and
is genuinely believed, it is acceptable. It’s not practical to demand that all information be received first-
Interestingly, the employer failed to make its one legitimate just cause argument: that B was in a
conflict of interest because of her union sympathies. Instead, the wrong message—anti-union animus—was
This case stands for two things:
If anyone, even a manager, is dealt with harshly because the person is pro-union, a ULP will be
For a breach of S. 6, there must be actual interference with the union, not just an incidental
effect stemming from an otherwise legitimate business decision. The normal wear and tear of
collective bargaining should not constitute illegal interference. Conduct that threatens the
formation or existence of the union, however, is what is in issue.
This case contradicts the assertion in Barrie Examiner (at the top of p. 297 of the decision, CB 10) that the
union must prove a prima facie case of anti-union animus, and says simply that the reverse onus applies
before the prima facie case has been established. (p. 76, CB 16) The board, as a result, requires the
employer to proceed first in the hearing, to establish its case of a lack of anti-union animus. This makes
little practical sense, since a union will respond by pointing to evidence of anti-union animus. It seems
inconceivable that after hearing the employer, the union would rest its case, saying the employer had not
discharged the onus. So, in any event, the union will present its prima facie case, and the employer will
inevitably attempt to rebut it, so the exercise of a complete reversal of onus is de facto moot, or
International Wallcoverings (1983) Ontario
After an incident involving violence by striking employees against replacement workers, nine employees
were fired. Three of them had actually assaulted the workers and one had done property damage to a
management van, but three others had been bystanders only and two more hadn’t even been at the scene,
although management believed they had. The union attempted to grieve under the collective agreement, but
since it had expired and the employer wouldn’t consent to a complaint under the old agreement, the union
brought a complaint under ss. 6 and 7.
· Held, the terminations of all but the actual attackers constituted ULPs. Remedies:
(1) Damage done to the van: employee reinstated without back pay (restitution, deserves some
punishment—but board finds that the employer over-reacted to the incident because of anti-
union animus). (First offence, involving property, not sufficient for dismissal.)
(2) Innocent bystanders: reinstatement but without back pay, as they failed to testify and so the
board wasn’t sure they were truly ―innocent‖ (Mitchell questions this odd reasoning).
(3) Not even there: reinstatement with full back pay; a true make-whole remedy
· This despite the employer’s protest that there was no anti-union animus, just an honest
mistake; although this was supported by other Ontario authority, the board preferred
American authority, Burnup v. Sims, to the effect that honest mistake doesn’t relieve the
employer when the employee is engaging in protected activity. To hold otherwise would
erode the protection afforded to such activity.
Egregious acts of employees can cause dismissal, even if there is anti-union sentiment involved, if
the acts were obviously sufficient for dismissal. (note: company had no previous ULP’s and gets
benefit of clear record.)
Ultimately, the best management excuse for discrimination is legitimate business purpose—such
will not violate either s. 6 or s. 7 without evidence of anti-union animus, but if there is interference
with the union, then there must be a considerable balance in favour of bona fides of the
―classic business activity is not an ULP.‖ This would include downsizing, subcontracting, etc.,
without anti-union animus. Management can make normal business decisions in the midst on
organizing drive. ( obiter)
If there is no legitimate purpose, on the other hand, s. 6 interference will not be tolerated,
regardless of motive; Burnup v. Sims.
Northern Meats (1992) Manitoba
―Classic business purpose‖: layoffs due to decreased demand and production. Three employees were laid
off after several supervisors were each asked to suggest three names for lay-off and each picked the same
people. Further, there was no proof the companies knew the three were in the union. However, at a meeting
of four union supporters, these three were present, and were subsequently laid off. The union complained
under each of ss. 5, 6, 7 and 9, but because it didn’t want to proceed first, withdrew all but the s. 7 claim
(which carries an employer onus) (so does 9, so these should have included this). Held, this was an ULP.
Even if anti-union animus is not the dominant motive, it may still override legitimate business purpose in
an appropriate case. The board interpreted the ―taint test‖ as requiring that the employer act ―for just and
sufficient cause and devoid of any anti-union animus‖. The important evidence was:
1. These were senior employees, with a good work record.
2. Other workers forced to work overtime as a result (so where’s the business efficacy?).
3. New people were later hired instead of those laid off (but employer should have responded that the
unanimous supervisor recommendations meant incompetence).
4. No previous policy of lay-offs during this slow period every year.
5. Owner didn’t testify to explain previous anti-union comments.
6. The three laid-off employees were among only four union supporters at an organizing meeting.
(Adopts same test used in Barrie Examiner) Under S. 7 the employer has the onus of
establishing that its actions were for just and sufficient cause, and were devoid of any
Anti-union animus can be inferred from circumstantial evidence.
Greensteel Inductors (1983, Manitoba) (not taught this year)
After a strike, 19 employees were fired; all other employees were invited back, but the employer claimed
that the 19 were ―dead wood‖. The union filed a complaint under s. 7, alleging that:
(1) The plant superintendent made the decisions instead of the foreman, who was better placed to
assess productivity (thus suggesting other motives for the firing);
(2) It was not just coincidence that the 19 included the entire negotiating committee;
(3) There was no documentation of the alleged unproductivity of the 19; and
(4) Casual labour was now being used in production jobs, which had never happened before the
strike—thus rebutting the ―dead wood‖ claim.
· Held, the complaint was dismissed. The board was satisfied that the employer released the employees
independently of any anti-union animus, both in the instructions given to the ―hatchet man‖ and in the
carrying out of those instructions (note Manitoba application of the ―taint test‖). The case actually turned
on the credibility of the hatchet man, who said that the instructions given to him were entirely bona fide—
even though he might have spared a couple of the 19 and fired others, if given the choice. Still, the board
accepted the bona fides of the employer.
· Dissent: Using a different application of the ―taint test‖, finds that the individuals couldn’t properly be
considered ―dead wood‖, since they were top-notch employees: lengthy service, good productivity, good
attendance. Thus, there must have been anti-union animus at play, given the circumstances. The board can’t
just rely on management’s assessment of the employees; there must be further inquiry into the facts.
Westinghouse Canada (1980, Ontario) (group dismissals)
W decided to close its Hamilton plant and transfer to four other areas where there was less union activity.
The union brought complaints under s. 6, interference with representation, and s. 7, discriminatory hiring
and firing because of anti-union animus. Both employer and union proceeded on the basis that the test was
―predominant motive‖ — i.e., that legitimate business purpose would override anti-union animus if the
latter was only a subordinate consideration. As a result, W argued that operating with a union was too
costly and inefficient. Held: this was an ULP. Although American authority supported the ―predominant
motive‖ test for the assessment of such ―major‖ business decisions as closing an entire plant, the board
found that it would be peculiar to apply a lower standard of scrutiny when all employees are terminated
than when only some are or when termination is merely threatened. Thus, the ―taint test‖—and not the
―predominant motive‖ test—applies.
Factors considered by the board in finding an ULP in this case:
(1) W emphasized its desire to avoid the union by moving (good plan, guys!)
(2) No immediate crisis precipitated the move.
(3) Profitability issues were never raised with the union prior to the shutdown.
(4) W owned other land but opted against using it because it was in unionized areas.
(5) W’s stated goal was to operate non-union.
(6) Policy of the Act can’t be satisfied by permitting blanket avoidance of unions; can’t just cry
about the high costs—live with it!
Although the board refused to go so far as to order the plant re-opened (because it found a mixed motive,
rather than strictly an anti-union motive), several powerful remedies (amounting to ―make whole‖) were
(1) ―Bumping rights‖—by exercise of seniority, the terminated employees were entitled to other
jobs with W in Hamilton, or, if none were suitable, at other W locations including the new
(2) Union employees who moved to the new locations were governed by the old collective
agreement and entitled to costs of relocation or commuting (i.e., a make-whole remedy)
(3) Union would have the opportunity to gather support in the new plants, and W would have to
reimburse the union for its costs of organizing there. (Union not the automatic agent, b/c
preamble says majority of employees would be new and union to be ―freely chosen‖.)
If an employer makes a de facto decision to close b/c of cost of unionized workforce, it should
inform the union during bargaining.
Remedies for group layoffs can be creative.
Group layoffs, or location shutdown, subject to same taint test as actions against a single
S. 94 means an employer may not shut down operations with impunity. The purpose of the section
is to protect an employer making major business decisions that are free of anti-union motive.
American Airlines (1981) Canada (employer communications)
The union alleged s. 6-type breaches stemming from two separate events:
(1) ―No solicitation‖ rule on the internal mailbox system — although this was the only way for
employees to communicate with one another, and although there had been no such policy
enforced in the past, the effect was that union and other personal communications could not
be disseminated in this way.
(2) Letter from management to employees deriding the union and urging them to think long and
hard before joining.
Held, both constituted ULPs.
(1) The employer argued that it was entitled by s. 33(2) to avoid distractions on its property, but
this was rejected for several reasons:
(a) No actual disruption; mailboxes were emptied before shifts began and
communications were no different than a mere discussion.
(b) Inconsistent with past practice; policy was always ―business only‖, but this was
(c) Timing was suspect, as the policy was enforced just as union drive began.
So the discriminatory application of the rule constituted an interference with the union.
REMEDY: permit such activity, provided that it is on employees’ own time.
(2) Employer argued that the letter was protected by s. 32(1) (freedom of expression), which
constitutes an exception to s. 6, and by s. 6(3)(f), which permits employers to express
statements of fact or opinion about their own business. Rejected:
(a) Because of the power imbalance between employer and employee, statements by
the employer must be neutral.
(b) The letter contained implied threats, such as moving jobs and other harsh
consequences associated with joining union (―think seriously‖ before joining); this
constituted intimidation such as to vitiate the s. 32(1) right to freedom of
expression. (―some carriers, represented by unions, have chosen to reduce their
Canadian operations‖, ―unfortunate possibility of a strike‖, a union will harm
An existing workplace rule must be enforced outside of an organizing context for an employer to be
able to enforce it during the ―sensitive period‖.
Because of the power imbalance between employer and employee, communications from the
employer regarding the possibility of a union must be neutral, and related only to the ―efficient
operation of business.‖
One exception is that an employer may respond to unequivocally adversarial or libellous
Refers to the ―squeaky clean‖ test in BC – could be applied to Mb, which has the same type of s.6
If federally-regulated, be even more cautious about employer communication.
Globe & Mail Division of Canadian Newspapers Co. (1982) Ontario
This case also involved a letter sent to employees by management, setting out the good things about the
company as an employer and detailing opportunities for advancement. A second letter set out ―facts‖ about
the union, focusing on mandatory dues, possibility of strikes, etc., and advised employees to ―get all the
facts‖ before joining (stopped short of ―think very carefully‖, as in American Airlines). Union complained
under s. 6. Held, this was not an ULP:
(1) There was no implied threat, just certain facts and advice to get all the facts before deciding to
(2) Unlike the Canada Labour Code, which governed the relationship in American, the Ontario
Labour Relations Act protects the right of the employer to communicate with employees
during an organizing campaign (Manitoba has this too, s. 32(1), but it’s subject to the
restriction that the employer may not interfere with the union).
(3) Taken in context, the letters were part of a lengthy exchange of memos where the union and
the employer alternated sending information to the employees; the union in effect condoned
In general, the rights of union and management must be balanced by taking a realistic view of the
inferences likely to be drawn from the communications.
In Globe and Mail, however, an ULP was found in the employer’s soliciting grievances and
displaying a new willingness to solve employee problems in order to entice them not to join the union. The
implication was that the union would be unnecessary because its threat had already done the job (so why
pay dues?)—as well as a veiled threat that the benefits might dry up if the employer is angered by
As a result, the union argued that the true wishes of the employees could no longer be ascertained by
a representation vote, and that the union was therefore entitled to discretionary certification under s. 41.
However, this was rejected because the union did not have evidence of membership support adequate for
collective bargaining—the usual figure required under s. 41(b) is 25%, but here over 80% of employees
had not even been approached!
Remedy: Post notice of violation at workplace, captive audience meeting for union at workplace.
Communicating with employees is a protected act (6(3)(f), as long as s.32 is respected. However, it
should be noted that 6(3)(f) refers to communications about the company’s business, not to facts
about unions, so it could be interpreted as narrowing the scope of S 32, since any reference to
unions could be understood to be using undue influence, given the massive power imbalance
between employer and employee.
A union may, in effect, condone such a letter if it responds point-by-point – thereby losing its
argument for a ULP.
The Canadian approach is to treat union organizing as a ―fait accompli‖, and make it pointless to
mount opposition (although this could be considered obiter, as far as provincial jurisdiction is
considered, since the MB act protects some forms of communications.
Obiter: nothing stops an employer from providing terms and conditions which are designed to
dissuade employees from organizing.
Indicia of ULP communications: references to job security, or promises made condition on the
employee’s decision regarding the union.
Providing benefits to employees:
Employers soliciting grievances from employees during the sensitive period, when normally they
don’t do this, is a ULP. Commendable behaviour can become manipulative.
An abnormally low level of support (<20%) probably won’t get discretionary certification under
S.41, despite a ULP. Lesser remedy. (Nepean says you need >25%)
Any change in employer attitude to employee problems –even a positive one – can be a ULP. (A
carrot can be as inappropriate as a stick.) (Although on the employer side it could be argued that
a legitimate business decision was made, without regard to union organizing.)
Mixed-motive in improving working conditions means a lesser remedy than discretionary
certification may be imposed
On management side, can argue s.133 (which Ontario did not have) – that employees have a right
to present a grievance to an employer at any time – and that the employer was simply enabling the
employee to exercise his existing rights, rather than create new ones. This can be distinguished
from other changes in practices (such as enforcing dormant rules), in that it relates to the legal
rights of the employees, rather than management power over them. In addition, s. 6(3)(f) in Mb
does not include ―promises‖ as a form of prohibited communication regarding the formation of a
union (although it does use ―undue influence‖, which it could be argued is broad enough to
Discretionary certification appears to be an extra-ordinary remedy. Even with a ULP, may not get
Marusa Marketing (2001) Manitoba (Affirmed by Queen’s Bench in Emerald Foods.)
Employer made announcements over PA, held ―captive audience‖ meetings, and sent memos – all of which
were anti-union. However, the union witnesses (who were no longer working for the employer) testified
they were not influenced by these communications. A decision of a five-member panel of the Board,
reviewing the decision of a tribunal and referring it back for consideration by the original panel, with the
An employer has freedom of speech with employees (s.32), except during an organizational period,
during which employer communication is restricted to―a statement of fact or an opinion
reasonably held with respect to the employer’s business‖. [6(3)(f)].
1st question to determine interference: is the communication employer interference?
o An employer is not free to profess its negative views of the union or unionization in
general to employees.
o Subtle or ostensibly neutral statements can be interference if they convey a negative
o Consider how the statements were delivered. (Was manner threatening? Was compulsion
implied? Was there a disparaging tone about the union?)
o Consider the communication in the context of all of the circumstances.
o The test of interference is an objective one. You don’t have to provide evidence of actual
effect. (What would affect the employee of average intelligence and fortitude?)
o The onus is on the union to satisfy the board that the communication would negatively
affect the average employee.
2nd question: are the statements protected by s. 6(3)(f)? ( ―a statement of fact or an opinion
reasonably held with respect to the employer’s business‖) (union dues, internal discipline, union
practices are not matters of the employer’s business)
3rd question: What was the manner of communication?
o Consider the context in which the statements were delivered.
o Captive audience meetings, and the like, can make comments about the employer’s
business prospects seem more ominous and threatening, even if they do not touch on the
o Captive audience meetings during an organizing period are not prima facie a violation,
but place an employer on ―very thin ice‖. They will be given a high degree of scrutiny.
o Statements made at meetings are scrutinized in the same way as statements made in
Also, There is nothing wrong with an employee discussing the union, or matters related to the
union, during working hours, unless it disrupts the ongoing operation of the workplace (s.32(1)
applies to both employees and employer). Only disruption of the workplace (s.33(2)) for union
organizing (or dissuasion) is prohibited.
Before the board, an employer’s views about the wishes of employees regarding certification are
irrelevant, and the employer has no status on this issue. S.47(1)
The test for interference is objective, and testimony of individuals about the effect on them
personally is not relevant as it is subjective.
Chapman dissent (supported by Huebert):
Heavy restrictions on employer communication based in pre-s. 6(3)(f) era (Krindle decision
in MacLeods), therefore no longer persuasive.
The LRA pays more than ―lip service‖ to freedom of speech. S.32(1) and 6(3)(f) must be
given effect, and understood to modify the previous standard, which weighed against
employer communications of any kind related to unions, during organization.
Electioneering by employer is only prohibited on election day (S.48), therefore it must be
allowed, to some degree, at other times (however this is incorrect, given that the act prohibits
unions or employers from electioneering OR distributing written material. It would be
perfectly consistent with the legislation that this section adds ―printed material by employer‖
as a prohibited activity on election day, something not explicitly denied in the other
Discretionary certification does not ―automatically‖ follow commission of a ULP (although
original panel never said this).
Independent witnesses may be helpful in determining, objectively, whether there was
(Note: any expression of opinion regarding the effect of the union, if that opinion is that layoffs or
restructuring may be necessary, is in fact a threat, because it originates from the very person who has the
power to give effect to that opinion. In that way it is fundamentally different from a mere expression of
opinion by competing parties in a political election campaign.)
Emerald Foods (2002) Manitoba QB
Employer and his daughter hand-deliver a letter to employees the two days day before the vote.
… ―If more than 1/2 of those who vote support the union, the union will be in and all terms and
conditions of employment will be negotiated between management and the union form [sic] now
on. I will not be permitted to address terms and conditions with employees through the focus
group. If 1/2 or less of those who vote support the union, the union will not be certified to represent
you and the current approach to discussing and implementing changes, through our focus group,
will continue. Everyone should make an effort to vote so that your choice is counted.
We also wish to clarify a misunderstanding that has come to my attention. Since June, the focus
group has been considering a new wage scale and system of increments. Last week, following the
focus group meeting of July 27, the proposed wage scale was posted as part of the focus group
meeting minutes. This is not a proposal from the union; the union has not had any input into this
wage scale. This is what the management and employee members of the focus group were
SOME COMMON QUESTIONS …
1. If I signed a membership card, am I required to vote for the union?
No. The vote is secret to permit every employee to vote as they choose, free from any pressure.
2. Is the union permitted to solicit my vote at this time?
Yes, until Sunday. No soliciting is permitted on the day of the vote. However, if you do not choose
to speak to a supporter of the union, you are entitled to refuse. No discussion of the vote should
occur during working hours.
3. Can the union guarantee me improved salary of benefits?
No. If the union is certified, any changes must be negotiated between the union and
management. The profitability and viability of this store will be the governing factor for
management in all wage and benefit negotiations.
Management is restricted by law in its ability to discuss the union issues with employees at this
time. Therefore, all managers have been instructed to refer any questions to me. If you have any
questions, I will do my best to answer them.
The tone in several places raises doubts about the effect the letter would have. But with Question two –
and the reference to refusing to speak to union supporters – the company crossed the line that restricts
communication to company matters. And the reference to the focus groups is akin to support for an
employees’ association. Both of these are breaches of s.6 The appropriate remedy would have been, not
to overturn the decision of the board, but to refer the matter back to it with instructions to apply the proper
test. Since the case is under appeal, this may ultimate be the result.
Such letters are a coy attempt to circumvent the law, however the intent to thwart the union organizing
effort is obvious, and it ought not to be condoned. A skilful juxtaposition of statements that implies a
negative message, but avoids saying it outright, amounts to an attempt to subvert the law, rather than to
respect it. Cleverness should not exempt an employer from the intent of the law. It may irk an employer no
end to have to sit on the sidelines while employees make a decision that could have a profound impact on
the workplace, but that is what the law requires.
Appleman (1982) Ontario
Union alleged s. 6 violation when employer paid legal fees for employees who circulated a petition
opposing the union. Held, this was an ULP. The employer cannot pay such fees, as the expense is clearly
aimed at suppressing the union. This was particularly so because the employees who signed the petition
knew of the employer’s support, so the payments constituted a signal of the employer’s opposition.
Examples of ULP include:
o Underwriting costs of anti-union efforts.
o Surveillance of employees (Radio Shack)
o Transferring union supporters
o Transfer control of employees to a subcontractor. (Culverhouse)
o Transfer employee to unit likely to experience layoffs. (Consumers Distributing)
o Closing departments targeted for unionization, without legitimate business purpose
(Academy of Medicine)
o Use agents to infiltrate union, and act as agents provocateurs (Radio Shack)
o Granting favours to employees who oppose a union. Raises, promotions, etc. These do
not have to be pre-arranged to count as ULP’s.
o Adverse treatment of supervisors sympathetic to the union (AAS Telecom.)
The ―hands off‖ rule binds employers before, during and after the vote.
Any employer-supported petition is tainted, and evidence of a ULP, as employees will fear the
consequences of not signing.
Westin Hotel (1995) Manitoba (pro-management decision)
Employees objected to the union’s attempting to organize. The hotel contacted its lawyer, who provided a
list of several labour lawyers. This list, in turn, was provided to a certain employee, who contacted a lawyer
and then sent out a letter to all employees, based on his advice. Union argued that these actions were
undertaken on behalf of the employer and thus violated s. 6.
Held, no ULP. The actions were not on behalf of the employer. NOTE: in so holding, the board also
implicitly validated the employer’s conduct in obtaining the list of lawyers.
Providing information requested by an employee who is opposed to a union may not be a ULP.
Disruption of operations (property rights)
s. 33(2) Nothing in this Part authorizes any person to disrupt the ongoing operation of an employer's
workplace by attempting, during the working hours of an employee at the workplace, to persuade the
(a) to become, or continue to be; or
(b) to refrain from becoming or continuing to be;
a member of a union.
Eaton’s and Cadillac Fairview v. RWDSU (1985, Ont. C.A.) [Property rights – s.33(2)]
Union wished to organize employees of a store located within a large mall. It attempted to stop employees
arriving for work through the mall in order to distribute union materials, but the landlord, presumably on
the request of the employer, asserted a no-canvassing rule and ejected the union reps. Union alleged a
breach of s. 6, interference with formation of the union, that the landlord was only acting on behalf of its
tenant, and that there was no legitimate business purpose for enforcing such a policy outside of business
hours, when customers are unlikely to be affected. Landlord argued, inter alia, that there was a legitimate
business purpose: namely, keeping its tenant happy. Held, this was an ULP. In order to rely on this
―legitimate business purpose‖ argument, it would have to be proven that the tenant’s request was itself
legitimate; otherwise, no legitimate business purpose in satisfying a tenant’s unreasonable request.
Employer must show a legitimate business reason for enforcing property rights when the effect of so
doing is to interfere with the union. (Onus on employer)
Third parties acting in the interest of employer or union can be subject to a finding of a ULP.
C.I.B.C. (1979, Canada) (Dress code)
To show support for the union, employees were wearing pins to work. Employer refused to permit this,
saying that it didn’t want to discourage customers and that the pins were in violation of the dress code.
Further, it argued that to allow the pins to be worn would not be a neutral action on its part and would
constitute tacit support of the union (presumably in violation of s. 6, participating in the selection of a
union). Union claimed breach of s. 6, interfering with formation. Held, this was an ULP. No legitimate
business purpose in the form of customer complaints, and the dress code had never been enforced so
strictly before the union drive began.
To justify restricting a protected activity without legitimate business reason, an employer must show
(1) non-discriminatory purpose, (2) equal application to employees, and (3) no anti-union animus.
Adams Mine, Cliffs of Canada Ltd. (1983) Ontario
Employees posted campaign material in support of an NDP candidate. Employer ordered it removed. Union
argued a breach of s. 6, attempting to extend C.I.B.C. to cover the situation (i.e., show of support for
organized labour in general).
Held, this went too far; it was not sufficiently direct to constitute protected union activity.
Posting of partisan political material is not a protected activity.
III -- MANIPULATION BY EMPLOYER OF
TERMS AND CONDITIONS OF EMPLOYMENT
Framing of complaint will depend on timing:
(1) If before application — complain under s. 6 or s. 7
(2) If after application — complain under s. 10(1), which requires that terms and conditions must
be frozen between application and certification, unless consent to change is granted by the
board. There is no element of motive; this is a strict liability section.
(3) If after certification — complain under s. 10(2) or (3), as applicable (supra).
Not every ―change‖ will trigger a s. 10 complaint, though. The section requires not an absolute freeze, but
rather that the employer must carry on business as usual (i.e., as if the union was not attempting to become
certified). The employer is still free—and obliged—to make any changes that would have been made but
for the union activity.
Restriction on change of conditions on application for certification
s. 10(1) Where an application has been made to the board for certification of a bargaining agent for a unit
of employees for an employer, if, before the application is granted, dismissed or withdrawn, the employer,
without the consent of the board, and not in accordance with a collective agreement affecting those
employees and in force and effect at the time, decreases or increases the rate of wages of any employee in
the unit or alters any other term or condition of employment in effect at the time of the application, the
employer commits an unfair labour practice.
Restriction on changes of conditions after certification
s. 10(2) Where a union has been certified as the bargaining agent of a unit of employees of an employer, if
(a) during the period of 90 days after the date on which the union was certified as the bargaining
agent of the unit, or any extension of that period granted by the board under subsection (3); and
(b) while the certification of the bargaining agent is in effect;
the employer, without the consent of the bargaining agent and not in accordance with a collective
agreement affecting those employees and in force and effect at the time, decreases or increases the
rate of wages of any employee in the unit, or alters any other term or condition of employment in
effect at the time of the certification, the employer commits an unfair labour practice.
Extension of period
s. 10(3) At any time before the expiry of 90 days after the date on which a union was certified as the
bargaining agent for a unit of employees of an employer, the bargaining agent or employer may apply to
the board for an extension of the period during which
(a) if the employer decreases or increases the rate of wages of an employee in the unit, or alters
any other term or condition of employment in effect at the time of certification, he would commit
an unfair labour practice;
(b) the union is prohibited from declaring or authorizing a strike of employees;
(c) the employer is prohibited from declaring or causing a lockout of the employees; and
(d) employees in the unit are prohibited from striking;
and the board, if it considers it will assist in the concluding of a collective agreement, may order
that the period mentioned in subsection (2) be extended in respect of the bargaining agent and the
employer for a single further period not exceeding 90 days.
Restrictions on changes of conditions after termination of collective agreement
s. 10(4) Where a collective agreement for a unit of employees has terminated, if, within 12 months after
the day on which the collective agreement terminated, the employer, without the written consent of the
bargaining agent for those employees and not in accordance with a collective agreement affecting those
employees, decreases or increases the rate of wages of any employee in the unit or alters any other term or
condition of employment in effect at the time the collective agreement terminated, the employer commits
an unfair labour practice unless
(a) the certification of the bargaining agent is cancelled or the bargaining rights of the bargaining agent are
(b) within that period the employees in the unit have gone on strike; or
(c) within that period a lockout of the employees in the unit has occurred.
Union of Bank Employees
Bank announced transfer for two people, and a new cash deficit policy (that tellers would not have to make
up deficits). Then labour board officer posts a notice of an organizing drive. Bank asks if it should go
ahead with its announced changes. Officer says no. Bank sticks with status quo. Held: ULP. Due
diligence not met. Board says bank should not have listened to its officer.
Section 10 is a strict liability offence. No anti-union animus required.
Arrow Games Inc. (contradicts union of bank employees)
Employer reduced hours of work for nine of eleven employees, and contracted out some of their work.
Said that’s what it would normally do when business is slow. But board sd while employer had right to
contract out before, it was a ULP. Consent of union must be actual consent, not implied consent.
anti-union animus REQUIRED for a violation.
IV – REMEDIES FOR ULP’S DURING ORGANIZING
Radio Shack (1980) Ontario
Ultra-serious infractions, including infiltration of union, surveillance, newsletters, targeting organizers.
Also, direct communication with employees and rewarding employees for crossing the picket line. These
pre-certification ULPs were so egregious that they ultimately were seen to have tainted the employer’s
conduct during bargaining. (Note also that interrogation of employees is specifically prohibited by s. 25.)
In this case, the following remedies were ordered:
1. Cease and desist from all ULPs.
2. Co to bargain in good faith, including making an offer at first mtg it would be willing to accept.
3. Co. must sign and post a notice acknowledging violations of the Act, in a form specified by the
board (e.g.,, mail a copy to each employee, post on notice board, publish in newsletter, read it out
loud at a staff meeting at which union reps could speak.)
4. Pay union’s negotiating costs.
5. Pay extra organizing costs related to ULPs.
6. Pay extra $$ to employees to compensate for the loss of wages/benefits b/c of loss of opportunity to
negotiate a CA.
7. Provide union with names and addresses of all employees in the unit.
8. Union to have reasonable access to all employee notice boards.
9. Union to be invited to attend any company mtg with employees regarding union representation.
General principles for remedies:
(1) The remedy is not a penalty but restoration. The remedy can have a deterrent effect, but it
must be incidental (e.g., posting notices of ULP may have the incidental effect of committing
the employer to future compliance). Humiliation or embarrassment of the offending party is
(2) Monetary relief is compensatory. The board should try to compensate as fully as possible for
expenses that can be established on a BoP (not conjecture). Reimbursement for bargaining,
legal and other expenses may be appropriate (Academy of Medicine), as might be damages for
loss of opportunity.
(3) Collective agreement cannot be imposed under the remedial section (but recall that there are
specific provisions for an imposed first agreement, s. 87; this is another matter).
(4) Rights only have substance if they are backed by effective remedies.
(Note: (1) remedial certification can have an important deterrent effect on ULP by other employers. If one
company can get away with a slap on the wrist, after trying to scare off a union, why shouldn’t another
employer try the same. It is one of the few remedies in labour law that can truly deter other employers,
since most other remedies in labour law involve compensation, rather than punishment or deterrence.
(2) The chilling effect of a ULP can never be measured precisely, so the board has to approximate
(3) An employer ought not to be allowed freedom of speech regarding a union in the workplace, as
he can exercise undue influence by playing on the employees’ dependence. Discharge, promotion, the
distribution of choice assignments, hours of work, shift assignments, and its influence over the mood and
values of the workplace, means its opinions can overwhelm what would otherwise be contrary opinions of
employees. In truth, the employers interests are in direct conflict with the employees. A situation of civil
litigation provides a helpful, although not perfect, analogy. We would not find it acceptable for a
powerful defendant to try to influence a plaintiff’s choice of lawyer. It is equally unacceptable to allow
employers to influence the choice of an employees agent in the adversarial process of contract negotiation.
National Bank of Canada (1984) SCC (federal)
After certification of one branch, the bank merged it with another bank. Under S. 144 of the CLC, the
court said this was analogous to a sale, and the employees of the closed branch continued to be represented
by their union. The merger was seen as a ULP. Four standard remedies imposed (names of employees,
access to bulletin boards, meetings onsite, costs). Two additional remedies were struck down: (1) a
requirement that the company issue a letter dictated by the board, without any reference to the fact that this
was imposed on the employer, and (2) that it establish a $144,000 trust fund to further the objectives of the
Code. The letter infringed freedom of speech, and therefore breached the requirement of ―minimal
impairment‖. The trust fund lacked a ―rational connection‖ in that it appeared to be aimed at unionizing the
unorganized members of the new branch. In other words, its goal was inconsistent with the ―make whole‖
The merger of two locations is analogous to a sale, for the purpose of s. 42 of the CLC, and may
amount to a S. 6 type of ULP if it interferes with the administration of a union, or representation
of employees by a union.
Employers cannot be forced to express remorse or views they do not hold (excessive penalties will
be struck down)..
Financial penalties unrelated to ―make whole‖ are punitive, and a breach of jurisdiction.
SCC in effect affirms the utilitarian underpinnings of appropriate remedies that are intended to
―make whole‖, rather than punish the offender
1. rational connection (the remedies must be effective in ―making whole‖)
2. minimal impairment (excessive remedies are punitive, and exceed the board’s
Securicor Investigation and Security (1983) Ontario
Company hired Securicor to infiltrate the union, warn employer about planned sabotage, property damage
or violence, and to act as an agent provocateur, create dissent within the union, and incite acts of violence
and sabotage. The complaint against the employer was settled but the union still proceeded against
Securicor. S argued that it shouldn’t be subject to the complaint because the scheme of the Act is only to
cover disputes between employer and union. Held: ULP, b/c Securicor was an agent of the employer. No
actual restraint or coercion needed to be proved. Remedies ordered:
(1) Cease and desist from infiltration activities
(2) Compensation paid to union
(3) Provide notice of future employment agreements to union.
DISCRETIONARY CERTIFICATION AS A REMEDY (S. 41)
s. 40(1) lays out the conditions for votes, and automatic certification. <40% dismiss application, 40-65%
hold vote, 65% or more automatic certification.). But under s. 41 board may certify w- <65%
(From 1985 – 1997, when a vote had to be held in every case, only one union achieved discretionary
certification under s. 41. Since 2000, there have been 10-20 cases of automatic certification). The policy
issue underlying the amendments turns on the question of whether it’s more important to give a union a
chance to show it cana represent the employees, or to have a democratic vote.
Three preconditions for s. 41 certification (where <65% have signed cards):
1. Employer committed a ULP
2. ULP so bad the true wishes of employees could not be ascertained, and other remedies (s.31(4)
would not address that.
3. There is ―adequate‖ support for collective bargaining.
Elbertson Industries (1984) Ontario
Organizing campaign led to the layoff of the lead organizer. Employer held a staff meeting to say business
would close if the union were certified. 12/33 sign for union, 23/33 sign for employees’ association (a
couple sign for both). Company lets EA organize on company property on company time.
Precondition #1 – ULP?
S. 6 – fired organizer, then couldn’t get anyone to sign. Anti-union animus w- chilling effect.
s. 7 – ULP to discriminate against organizer, unless layoff for strictly business reasons.
s. 17 – threat or pecuniary penalty: threat of closure before captive audience.
s. 6 – threat to employee association (probably not an infraction if no organizing campaign
BUT, company says it undid the damage, therefore no chilling effect:
Reinstated organizer, w- letter informing staff
Told employees no intention of closing plant
Sd union could have company time for mtgs.
Sd union cd have time for mtgs on company time.
Board said letter one month later too late, and besides it restated opposition to union. Also, co. continued
to negotiate with EA. How serious? Firing organizer and threatening to close the plant about as bad as it
gets lingering impact. #2 – wishes of employees could not be determined. #3 – one third adequate. The
fact 70% signed for EA shows employees wanted representation.
Dissent: should reward employer for trying to redress situation.
Egregious infraction will discretionary certification.
Half-way measures to restore ―laboratory conditions‖ not good enough to avoid discretionary
One-third sign-up ―adequate‖
Nepean Bus Lines (1990) Ontario (What is adequate support?)
Employer saw several part-time employees in a restaurant with a union representative, and fired them all,
including one who had already given notice of resignation. The employer also held the usual ―captive
audience‖ meeting and gave those employees who were opposed to unionization company time to circulate
a petition. The union sought discretionary certification after an ULP was found. The only question was
whether the 25% of employee support that had been amassed by the union within a couple of days was
―adequate for collective bargaining‖. Held: 25% support adequate and discretionary certification was
Factors to consider in assessing whether support is adequate:
1. At what stage of the campaign did the ULP take place? The earlier in the ampaign, the
lower the threshold—and here, in just a few days, they had already amassed 25%.
2. Circumstances surrounding the cards signed and the number thereof.
3. Pre-existence of a full-time unit with sufficient support.
4. Severity of the employer’s conduct—the ―chilling effect‖ Substantial employer
misconduct is required (the traditional remedies just won’t work).
5. Percentage of unit that has signed cards, if at an extremely low level.
Dissent: if there is rapid turnover, and high PT quotient, then need more than 25% as a viable basis for
collective bargaining. Wd hv granted union mtgs on company time and premises, with a prompt supervised
Walmart (1997) Ontario
In 1993, W bought all Woolco stores in Canada, except for the ones that were unionized.
96-97, Steelworkers organized store in Windsor. As soon as employer aware of this, there was a sudden
intense interest in sales associates. Group session, staff mtgs.
ULP #1: employee allowed to speak against union (of itself not a violation), but union not given
equal time, and company did not disassociate itself from her comments after they were made
seed of doubt about future job security.
ULP #2: Outside managers showed up a lot to talk to staff about the union in the days leading up
to the vote. High risk activity. Gave management opportunity to get a sense of where individuals
stand. Intimidating. Company cannot hide behind ―open door‖ policy when the effect of open
communications is to exercise undue influence. In addition, they refused to answer the question of
possible store closure heightened fear.
(Mitchell: the proper response to question of possible closure is: the only reason to close is
business factors. Union a non-factor)
43/194 vote for the union (<25% in Nepean). Would other S.31 remedies work? Cd a 2 nd vote reflect true
wishes? Only go to S.41 if S.31 doesn’t work.
Held: discretionary certification warranted, given severity, and that intimidation meant a vote would not
reflect true sentiment. 22% sufficient in this circumstance.
V -- WHO IS AN EMPLOYEE?
In order to be a member of a union, one must be an ―employee‖ — distinct from agent or independent
s. 1 ―Employee‖ is defined as a person employed to do work, and includes anyone designated by the board
as such, even where the employer is not vicariously liable for the acts or omissions of the ―employee‖.
(a) the person performs primarily managerial functions; or
(b) the person is employed in a confidential capacity re: labour relations.
Wiebe Door Services v. M.N.R. (1987, T.C.C.)
The traditional tests of employment were combined into one multi-faceted ―entrepreneur test‖: such factors
as organization, control, ownership of tools, risk, chance of profit, etc., were subsumed into one major
question: ―Whose business is it?‖
Other factors to consider:
(1) Does he have freedom to hire employees?
(2) Was he in business prior to ―employment‖?
(3) Does he have any other customers?
(4) Are his services offered to the public at large?
(5) Economic dependency — i.e., is the ―employer‖ his only source of income? (Note that this
may even make large companies into employees in appropriate cases.)
* (6) Is the ―employee‖ in need of protection? (Key for labour relations matters)
· unequal bargaining power?
· extent of economic dependency
· reliance on employer for equipment, etc.
However, if a corporation is interposed, that suggests contract relationship, not employment.
Truckers wanted to form a union. LRB said determining issue was: are you economically dependent on
Manfor. The key was if the majority of their income came from Manfor. That meant they were employees
under the Labour Code.
A dependent contractor is still an employee, and even an independent contractor could be.
Hearst Publications Inc (1944)
Case of newspaper carriers who were 12 years old. They were not under control, but generally they were
integrated, lacked risk, were dependent, so they were employees. Sometimes policy considerations are
relevant to decide who is employer and who is not.
Ask: is this who the code is supposed to protect?
Canadian Media Distributors (1995) Manitoba
Area distributors distributed flyers, and wanted to be unionized. Company sd not employees. There were
deadlines to meet, but not a schedule per se. The area distributors were incorporated, and had their own
employees. Some area distributors had more than $250,000 in revenue. They report their income as
business income. Substitution was totally in the control of area distributors. They sent whomever they
wanted. Many had other income sources. They bought and maintained their own vehicles. Despite all
this, the MLRB said that they were employees for purpose of the Labour Relations Act. Why? Price set by
company, not area distributors. Some degree of economic dependency. Company could tell area
distributors to fire one of the carriers if there was a complaint. Carriers could not take on other clients
competing with company. Company exercised control over vehicles. Distributors had to be on call. There
was a higher degree of control by company than just buying a result. Therefore, the board said more like
employment than independent contractors. There was imbalance of bargaining power. They couldn’t
negotiate their own salary.
(1)The board has a broad discretion to determine status; it’s not merely an exercise in
(2) There was a significant degree of control exercised by the company, as above.
(3) Many distributors earned their living through this endeavour exclusively.
(4) There was no written contract to the effect that they were independent contractors.
Independent contractors can be employees for the purpose of the act.
Town of Dauphin (Unreported)
Bulldozer operator had a contract stipulating that he was an independent contractor. However, he had little
discretion as to how his work was done; the town owned the equipment he used and supervised him
rigorously, occasionally sending unionized employees to help him.
Held, he was an employee.
Lack of written contract between contractor and employer suggests employment relationship.
Poiron v. R.M. of Ritchot (1988, Man. Q.B.) (Employment standards case)
P owned a bulldozer and had a contract to maintain the municipal landfill. He hired his son to assist him.
Shortly after he purchased a new bulldozer, the municipality terminated the contract and hired somebody
else. He sued for wrongful dismissal, but D responded that he wasn’t an employee. Held, he was not an
employee. The key factor was that he did not do all the work himself, but had his own employees.
Hiring a subcontractor or employee can extinguish employment status.
Welland County School Board (1972) Ontario
The school board transferred the employment of its secretaries to a temp service. The temp service now
paid the secretaries’ salary, but the secretaries worked at the same jobs as before and had their wages
guaranteed at the same rate. A union attempted to organize the secretaries, naming the school board as the
employer, but the school board argued that this was no longer the case.
· Held, the school board was the employer. The following test (from the Reid’s Holdings case) was
(1) With whom are negotiations carried on?
(2) Who exercises discipline over the employees?
(3) Who actually does the hiring?
(4) Who controls work methods?
Nichirin Inc. (1991) Ontario
In an application for certification, the union requested that four additional employees, who were supplied
by an outside service, be added to the bargaining unit. The employer objected on the grounds that it was
not the employer of the four, but that they were employed by the service. Held, the employer was also the
employer of the four, for labour relations purposes. The board applied a slightly different test, which turned
on the following factors in addition to those in Welland County:
Overriding control test:
(1) Who bears the ultimate burden of remuneration?
(2) Who has the authority to dismiss the employees?
(3) Who is perceived by the employees to be their employer? (unreliable)
(4) Is it the intention of the employer to have control over the worker?
Kennedy Lodge Inc. (1984) Ontario (taking employment status to the extreme)
K contracted out the work of 91 nurses’ aides and health care aides to Medox, in order to extricate itself
from the wage and benefit provisions of the collective agreement. Medox was to hire the aides, write the
cheques do the scheduling and provide supervision, and show a safety video. M employees wore Medox
name tags. K was to establish policies and procedures for care in the home. It also reserved the right to
prevent any Medox employee from working in the home, and provided supervising charge nurses, who
reported discipline matters to Medox.
Held, K was the employer, and the ―contracting out‖ contemplated was not good enough to get out of the
agreement, despite the presence of a ―contracting out‖ clause. Because K maintained fundamental control
over the employees, and because there was no usual industry practice of contracting out these services, it
was apparent that K remained the actual employer.
Other relevant factors:
1. Industry practice,
2. Contracting out clause not conclusive
3. Doing an end-run around the union, rather than trying to work with it, may be damaging
to employer’s case.
Metropolitan Life Insurance (1989) Ontario
M contracted out cleaning services to A, a janitorial service, pursuant to the recommendation of an auditor.
This meant the loss of 10 full-time union jobs and 48 part-time, non-union jobs, but was not uncommon in
the industry; large office buildings very often contract out cleaning services. M retained virtually no control
over the actual cleaning procedures, except that there were certain security-related requirements imposed
upon the cleaners (e.g., log-in, etc.). On the other hand, A exercised a great degree of control over its
employees. Held, M was not the employer of the cleaners. It exercised no ongoing control or direction over
them; all it cared about was the final product, which was what it paid for. A was their true employer.
A hands-off policy regarding contracted out workers can nullify employment relationship.
Honest desire for efficiency, in the absence of an anti-union motive, can influence board.
Peripheral services more likely to nullify employment status.
Best Personnel Services
This case priorized some of the factors.
Most important factors:
o Hiring, control and supervision, termination.
o perception of employees, and existence of commercial contracts
VI -- THE MANAGEMENT EXCLUSIONS
Recall s. 1 definition: not an ―employee‖ if it would be an unfair designation because the person ―performs
management functions primarily‖.
Employees are included until the party seeking the exclusion proves why it should apply.
Should not be too quick to exclude, particularly with confidential employees, as that would leave them
Burnaby and CUPE Local 23 (1974) (BC)
Employer attempted to have 15 employees removed from the bargaining unit because they fell within the
managerial exclusion. The alleged managers had certain discretionary powers: they could hire and fire,
could order overtime, and were involved in budget preparation and policy-making. Held, with minor
exceptions, they were not employees because they fell within the exclusion.
Issue: Who is a manager? Cited Woods Task Force on Labour Relations, which sd it wd be unfair to leave
supervisors and junior managers (―employees‖ who supervise ―employees‖) without any access to
collective bargaining and sd they should be allowed to organize in a separate union, affiliated only with
the ability to fire or promote (greatest potential for conflict),
power over reprimand or hiring. Consider that, in instances where few people are ever discharged
that the real power lay with hiring. Even if decisions can be reversed at higher levels, if the
decisions are in effect made at these levels, then they are managers.
the ability to schedule overtime
being in charge of a division,
having access to personal files of employees,
having supervisors underneath you in the hierarchy,
involvement in policy-making, preparation of budgets (minor).
The key is whether the person in question is exercising independent discretion that could be the
subject of a grievance. The policy is to avoid a situation where the union is forced to grieve
against the judgment of its own member.
The onus of proof is on the party seeking the exception.
The motive for seeking the exclusion is irrelevant.
Note that there does not have to be an actual conflict, just the potential of conflict.
(Note: Consider exam scenario in which an employer reorganizes workplace to place certain people
outside of the unit. Under the management or confidential exclusion, it could be seen as ―a sham, a
colourable device to avoid one’s obligations under the Code.‖)
Highland Valley Copper v. United Steelworkers of America (1998) (updates Burnaby)
Labour relations input and discipline and discharge were the most important factors to consider when
determining whether a sufficient COI exists to justify exclusion from the bargaining unit. Does the worker
effectively determine discipline (as opposed to whether this is a primary role of his). Here they didn’t,
because HR made the real decisions. Supervisors made recommendations.
Goals of leg: stability of collective bargaining, and access to collective bargaining.
The most important factors are:
o Input and access to confidential discussions about labour relations
Ask whether there is a sufficient COI that undivided loyalty to management becomes a concern of
Provincial Auditor (1988) Manitoba
Employer argued that Auditors III and IV should be excluded from a unit comprised of Auditors I and II
because they exercised certain management functions, including supervision of Auditors I and II and
evaluation of those employees, as well as discipline and hiring recommendations. Held, the management
exclusion did not apply, as the employees in question carried no real authority; all they did was make
recommendations and reports, but there were no direct consequences to these. Otherwise, their work was
almost identical to that of Auditors I and II.
Conflict arises when employees have authority over employment conditions and/or firing
where the ―managerial‖ functions are slavishly obedience of strict guidelines and making benign
recommendations, no management exclusion will apply.
Supervisors with quasi-management functions can form a separate bargaining unit.
In Manitoba, must prove all of:
1. Inclusion would be unfair to management, union, or employee.
2. The job has a management function or focus
3. The Job is primarily management
NOTE: this case relied on 2(2) – which emphasized that employees supervising other employees does not
automatically invoke the exception – however that section was repealed in 1992. Repeal does not reverse
the previous law, but it’s possible this case is less persuasive, and it may be easier to get a management
exclusion, given that this case specifically relied on 2(2). (This is especially the case since there is no
official stare decisis in labour law). BC also had a similar provision in its definition of ―employee‖ when
Burnaby was decided, so that case should also be interpreted in light of the fact that Mb has repealed 2(2).
(It could be noted that in the 1995 case of Seven Oaks Hospital, Provincial Auditor was not cited as
University of Manitoba (1987) Manitoba
Part-time teaching assistant was appointed to the Board of Governors, which is supposedly the ultimate
decision-maker at the university. The employer argued that he should be excluded from the bargaining unit
under the management exception, but the union argued that he should be included and relied on the
Hamilton-Wentworth case, where employee-directors were not excluded.
Held, the TA was excluded. Hamilton-Wentworth was distinguished because in that case, the employee-
directors were actively sought and selected, whereas here, the appointment was political and the employer
had no say. Further, the exclusion was consistent with the historical exclusion of the UMFA rep (by
consent of that union). Most importantly, to address the concern that the employee would in effect be his
own employer, it was noted that the Board of Governors is not an ―employer‖ in any real sense; it has no
role in hiring, firing, etc., but only in making policy.
Employees with positions on board may be excluded from the bargaining unit if they were political
appointees. However if they are sought by the employer, then they may be included.
To argue against this rule, note that little turns on the distinction – it’s not as if a political appointee
is more closely aligned with management – in fact the opposite may be true. (On the other hand,
the employer is more in control if it appoints the employee to the board, and so it may have a
greater comfort level with the employee straddling two categories. Trust may be greater)
This case should not be considered persuasive, since the three mandatory criteria as outlined in
Provincial Auditor were not met. Here, the board admitted nothing in the act prevented inclusion
in the bargaining unit, and all it took to remove the employee was an objection from management,
which is a clear departure from precedent.
Carman Hospital (2000) Manitoba
Manager of physical plant serviced replaced maintenance supervisor, placing him higher on the hierarchy.
But, by the time of the hearing, he had conducted no discipline, and attended no management meetings. He
had access to personnel files, but hired only one employee. Board rejected management exclusion. Sd six
months not enough time to judge. But sd hospital could come back later for another determination.
Six months is usually the minimum to assess whether a position is eligible for a management
One refusal is not permanent. Board can reopen issue later under s. 142.
Survey of criteria for management exclusion:
Ability to hire, fire, discipline, select for positions
Authority to plan work
Authority to monitor sick time
Grant time off, including leave of absence
Included in meetings discussion labour relations (MAJOR)
Authority to purchase,
Access to personnel files
Participates in training and orientation
Paid on salary, rather than hourly wages.
VII -- CONFIDENTIAL EXCLUSION
Burnaby (1974) BC (supra)
Issue: Who is ―confidential?
Must be employed in a primarily confidential capacity, not involved in confidential work
occasionally or by accident (employer can accommodate this).
Research and analysis relevant to negotiations, discharge or discipline is clearly a confidential
Consider the seriousness of the need for secrecy of the relevant information. The relevant info
must be ―related to labour relations‖, not to the external world.
Typing letters re: separation early retirement, absenteeism etc., doesn’t qualify, because eventually
these are given to employees.
Same with having access to medical file of employee for safety reasons. Nothing sacrosanct about
the personnel division.
The onus of proof is on the party seeking the exception.
The motive for seeking the exclusion is irrelevant.
Note that there does not have to be an actual conflict, just the potential of conflict.
(Note: Consider exam scenario in which an employer reorganizes workplace to place certain people
outside of the unit. Under the management or confidential exclusion, it could be seen as ―a sham, a
colourable device to avoid one’s obligations under the Code.‖)
Transair (1974) Canada
Guidelines for the confidential exception:
(1) Note that in the management exception, the deprivation of benefits is often compensated by
the rewards of authority, whereas employees affected by the confidential exclusion are often
in the humblest positions. Therefore, such exceptions should be rare, and should be granted
only for ―real and compelling‖ reasons.
(2) The exclusion applies only to confidences related to labour relations:
(a) contract negotiations
(b) proceedings before the labour board
(c) disposition of grievances.
(3) The confidential element must be a regular and substantial part of the job, not incidental or
(4) Disclosure of the confidential material to which the employee has access must have an
adverse effect on the labour relations position of the employer.
(5) Confidential employees who are solicited for and accept functions in this area must realize they
are deprived of bargaining rights.
Note that family relations are often excluded from the bargaining unit as well, because of the question of
divided loyalty. The issue is whether the family relationship is relevant to the employment and to labour
relations (and also, whether there is significant access to information on either the management or the union
side). See Feed-Rite (infra).
VII – OTHER EXCLUSIONS
S. 39(3) (Employees practicing a profession and subject to a governing body can opt out of bargaining unit
b/c they don’t have the same body of common interests.)
Jack Forgan Meats. Generally excluded b/c of conflict of loyalties.
Where is the core loyalty?
PART-TIME, CASUAL, TERM
Elizabeth Fry Society (1985) Ontario
Federal youth corps workers paid for by gov’t grant. Term fixed. No evaluations. But supervised and
under control of E-Fry.
Employees with a separate community of interest to be in a separate bargaining unit.
Rule 28 in the Regulations
Defines who is an employee for purpose of assessing who is in unit.
Parttimers: in unit if a regular employee, irrespective of hours. Excludes those hired to cover annual
Casual workers: hired w-in two weeks of application of certification, and for less than 12 weeks, don’t
vote, and not counted in the total workforce. But, they are in the unit.
VIII -- CERTIFICATION AND BARGAINING RIGHTS
48(3) A board will compel a vote within 7 days of the day after the filing of the application for certification
(unless there are exceptional circumstances).
Required support for vote/certification
s. 40(1) lays out the conditions for votes, and automatic certification. <40% dismiss application, 40-65%
hold vote, 65% or more automatic certification.).
s. 41 board may certify w- <65%
s. 44 When a union is certified as the bargaining agent for employees in a unit,
(a) it immediately replaces any other bargaining agent for those employees, and has exclusive
authority to bargain collectively on their behalf and bind them to a collective agreement
(subject to s. 69(1), ratification);
(b) if another union previously represented the unit, its certification is cancelled; and
(c) if a collective agreement is in force at the time of certification,
(i) the union that is a party to that agreement has no rights under it or the Act;
(ii) the new union is substituted as a party to the agreement; and
(iii) the new union can apply to the board for authority to terminate the agreement with
three months’ notice.
s. 40(2) If one union wants to replace another certified union, and the certified union objects to the new
union, the new union must have 45% or more of the employees in the unit signed up to be able to request a
Bargaining with non-certified union
ss. 24(1), (2) It is an ULP for an employer to bargain with a union other than the certified bargaining agent
for the given unit, and the other union also commits an ULP by bargaining with the employer.
(e.g., Westfair strike — Separate unions, RWC and UFCW, represent wholesale and retail
employees, but problem arose with respect to the Real Canadian Wholesale Club; it is retail or
wholesale? Because of past history, W offered to recognize RWC, but RWC refused to sign because
it looked too much like a UFCW agreement. As a result, the wholesale workers went on strike and
W decided to have UFCW sign instead. Now RWC claims that UFCW has committed an ULP by
negotiating with W in respect of its wholesale unit—and the board agreed.)
Cancelling certification because of fraud
s. 52 If certification is obtained through fraud, it may be cancelled if the fraud couldn’t have been brought
forth at the time of certification and is such that the board would have denied certification had it known of
Cancellation for abandonment
s. 53(1) If the union doesn’t exercise its rights as bargaining agent within 12 months of certification, its
certification may be cancelled.
Notice to commence bargaining
s. 60 Once certification has been granted, either the union or the employer may, by notice, require the other
to commence collective bargaining,
s. 62 parties obliged to negotiate within 10 days of notice (or by agreement)
s. 63(1) When a party to a collective agreement gives a s. 61 notice to the other party, the other party is
compelled to bargain within 10 days of the notice. (Can be certified or voluntary union.)
Appointment of conciliation officer
s. 67 Where collective bargaining has not commenced within the statutorily-imposed time limit (supra)
and/or a collective agreement cannot be reached, either party may request the minister in writing
(accompanied by a statement of the difficulties encountered) to appoint a conciliation officer to help with
Imposed first agreement
If a collective agreement cannot be reached (subject to certain requirements), the board may impose a first
Recognition strikes prohibited
s. 90 An uncertified union which has not yet become a party to a first collective agreement may not
authorize a (recognition) strike.
s. 92 Corollary prohibition: employees who are members of an uncertified union that has not yet been
party to a collective agreement cannot strike.
[However, an uncertified union may even be able to picket for recognition (although possibly tortious,
since no injunction lies under s. 57 of the Queen’s Bench Act).]
Bargaining for first agreement
Not only is an uncertified union prohibited from striking, but it also lacks the power under s. 62 to compel
an employer to bargain; this too is restricted to certified unions only. However, once a first collective
agreement is reached, s. 63 gives the union the right to compel the employer to bargain for later
s. 63(1) When a party to a collective agreement gives a s. 61 notice to the other party, the other party is
compelled to bargain within 10 days of the notice. (i.e., an uncertified union has the same rights as a
certified union once a collective agreement has been reached.)
Maple Leaf Foods: 2200 employees at new plant in Brandon. The company voluntarily recognized
UFCW, and got a ten-year deal with lower rates than at the Winnipeg plants.
Westfair: 3000 employees, UFCW voluntarily recognized. Westfair pays less than Safeway. 1 st contract:
6 yrs w- special arrangements for PT employees.
Eriksdale Construction Ltd. (1973) Manitoba Q.B. (not taught this year)
Employer met with an uncertified union, reached an agreement and then refused to sign. The union
promptly went to court and received a declaration that although there was no initial obligation to bargain,
once all the terms of a first agreement had been agreed upon, the employer could not then walk away just
because the union was uncertified and couldn’t compel him to bargain.
If all the terms are not settled and the employer refuses to continue bargaining, the union’s only
option is to apply for certification.
The validity of the first agreement depends on ratification, s. 69(1), but once it is ratified, the
uncertified union is as good as certified.
Certification Voluntary recognition
(1) Union can force employer to meet and to (1) Union has no powers of compulsion.
bargain in good faith.
(2) If negotiations fail, can apply for imposed (2) No right either to imposed first
first agreement, s. 87(1), or can strike, s. 90. agreement or to strike.
(3) Board defines scope of bargaining unit.
(4) Often adversarial. (3) Employer and union can agree on scope.
(5) Process involves signing of membership (4) By definition, non-adversarial.
cards, application to board. (5) Cheaper, faster (good if racing against other
(6) Duty of fair representation. unions), no cards.
(6) Same duty of fair representation.
S. 43 Where a union is dominated or overly influenced by an employer, the agreement between the two
shall be deemed not to be a collective agreement, and the board shall not certify that union as a bargaining
agent. (The ―Sweetheart Union‖)
s. 1 Definition of ―union‖: an organization formed for purposes which include the regulation of relations
between employers and employees.
R. 7(1), Rules of Procedure
Prior to applying for certification, a union must file with the board
(a) copies of constitution and by-laws;
(b) a statement showing the name of the union’s parent organization, if any (i.e., if part of a
national or international body), plus copies of the local branch charter and by-laws;
(c) if an employee association, copies of the minutes of its originating meeting plus its
constitution and by-laws; and
(d) a list of officers, with names and addresses.
R. 7(3), Rules of Procedure
In order to file a valid application, the union must actually have been organized by holding all necessary
meetings, adopting a constitution, electing officers, etc., and all information filed to this effect must be
certified by the secretary of the union, R. 7(4).
· This poses a circularity problem: how can union members adopt a constitution if they only become
members by virtue of the constitution? Solution: one meeting, with the following agenda:
(1) Proposed constitution is approved by those who have signed up as prospective members; and
(2) Once this is approved, the newly-validated members ratify the adoption of the constitution.
Farms Employees Union (1987) Manitoba
In the summer of 1986, 20 or 30 tradespeople employed by a hog processing plant formed an employee
association, SFEU, at the suggestion of the employer. The functions of SFEU were mostly social, but it did
deal with some grievances. In October, 1986, a new plant was built and many new butchers were hired;
now, UFCW wanted to organize the workplace. Although SFEU was not then a union (no formalities were
in place), it decided to organize as bargaining agent and take on UFCW for certification. The following
events then took place:
· Jan. 20, 1987 Organizational meeting held; by-laws proposed, officers elected, sign-up sheet
· Jan. 21, 1987 First application for certification rejected, as the sign-up sheet was not a reliable
indicator of employee support; need actual membership cards.
· Jan. 26, 1987 UFCW applies for certification.
· Jan. 30, 1987 SFEU holds another meeting, with individual membership cards.
· Feb. 4, 1987 SFEU re-applies for certification and seeks status to intervene in
UFCW application. UFCW had about 55% support; SFEU had 80%.
Held, that since SFEU was not a union as of the date of the UFCW application, and since s. 40 makes it
mandatory for the board to certify a union with adequate support, UFCW must therefore be certified and
SFEU could not intervene.
With two competing unions it is basically a race for certification.
The requirements for a valid organizational meeting in Manitoba:
(1) Proposed constitution put before members;
(2) Membership is granted to those attending;
(3) Constitution is adopted; and
(4) Officers are elected.
If these happen all at the same meeting, then union is valid and may apply for certification.
If not at the same meeting then you have to have:
1. a constitution firs (drafted and circulated for approval),
2. then membership cards,
3. then constitution should be adopted,
4. then officers should be elected.
Tridon Ltd. (1974) (not taught this year)
An employee association had a constitution but never followed it, and never collected membership dues or
had membership cards. Further, executive positions were not filled and the negotiating committee wasn’t
validly selected. Now the association applied for certification as bargaining unit. Held, this was not a
union; there was no contractual bond between the employees and the union, which is a critical requirement
for the validity of the union. In the absence of such a bond, the union could not fulfil its statutory
obligations to bargain in good faith, provide fair representation and be accountable to its members.
Bullmoose Operating Co-op (1983, B.C.)
Applied for certification before they had officers elected. Premature. Not recognized as a union.
Dilts v. UMFA (1974) Man. C.A.
D, a law professor, argued that since UMFA was applying for certification 20 years after formation, it
could not discharge the obligation to file minutes of its originating meeting—they had been lost! Held, the
union was certified anyway, when a member from the meeting testified that the formalities had been
If minutes are unavailable, the board can receive evidence that the meeting was validly held.
The observance of rigid formalism is not necessary. Validity is a matter of substance, not form.
Expanding membership beyond charter
s. 45(3) Where the board is satisfied that a union has an established practice of admitting members other
than those qualified under its constitution, the board shall not consider the constitutional requirements in
determining whether a person is a member.
St. Catharines Hydro Electric Commission (1992) Ont
If a constitution says all members are at one company, and the union wants to organize employees
at another company, the status of the union may be challenged.
If it is challenged, the union has to change its constitution to validly represent the new employees.
Legal Aid Students Association (1981) Manitoba
Union sought to represent articling students working for Legal Aid. All Rule 7 requirements were met and
the union had adequate support, but Legal Aid and the Law Society challenged the application on the
following grounds: (1) The students were not ―employees‖ because they were studying to become
qualified; (2) This was not an ―appropriate bargaining unit‖ for the purposes of s. 40—i.e., it is
―inappropriate‖ for students to bargain collectively; and (3) Public policy factors (100% turnover of
students every year) (A strike or lockout would deprive the students of the chance to finish Bar Admission).
Employees who are studying are still employees.
A unit can have more than one employer.
What is an ―appropriate‖ unit for bargaining, for purpose of 39(1)? Refers to a ―community of
interest‖ among the employees (working conditions, rates of pay, but here the overriding objective
is completing their education)
Question: Mitchell says s. 40 removes discretion from the bd where there is more than 65%. In other
words, public policy concerns are no longer valid considerations in a certification application. But it does
not appear to override 39(1). What if the >65% come from an inappropriate unit?
IX -- TIMELINES FOR APPLICATION FOR CERTIFICATION
New union, no existing CA
s. 34(2) Where no bargaining agent has been certified and no collective agreement is in force in respect of a
unit, an application for certification may be made at any time.
BUT where a union is already certified and/or a collective agreement is in force, there are major bars to
applications for certification. In essence, there are only three months in each year when other unions can
―raid‖ the certified agent.
BARS TO APPLICATIONS FOR CERTIFICATION
(OR S. 49(2) – DECERTIFICATION)
Union certified, no CA
s. 35(1) A union gets 12 months within which to try to negotiate a CA, without being challenged by another
union. The clock starts ticking at certification, or any related court proceedings.
Collective agreement bars
s. 35(2) Where a collective agreement is in force, no application shall be made
(a) during the first six months of the agreement; or }
(b) during the last three months of the agreement; or } ALL agreements
(c) where the agreement is for 18 months or less, except during the three months immediately
preceding the last three months of the agreement; or
(d) where the agreement is for more than 18 months, except during the three months preceding
the anniversary of the agreement or during the three months immediately preceding the last
three months; or
(e) where the agreement is for 12 months and provides for automatic renewal unless notice of
termination or a desire to bargain is given by one party to the other, except during the three
months immediately preceding the three months preceding the date on which notice of
termination may be given.
(Recall that s. 74 will deem any agreement that is for less than 12 months to be effective
for 12 months.)
One year agreement (a, b, c) 6 - 9 months. (But note 35(3): for 3 mo’s after
termination where bargaining attempted
Applies to all CA’s.)
One-year w- automatic one-year renewal and no notice to bargain (e): 6-9, and 18–21
One year w- automatic six month renewal (e) : 6 – 9, 12–15
18-month agreement (c): 12 - 15 months
2-year agreement (d): 9 - 12 months, and 18 – 21 months
Re: F.W. Sawatzky (1972) Man. C.A.
Union had certificates for each of Winnipeg and Brandon, each with a different expiry date.
Employer expanded and the union wanted to create a new bargaining unit, to cover all of Manitoba.
Employer argued that such an application could not be made because the windows for application
did not coincide:
(1) only 20 days had elapsed since the termination of the Winnipeg agreement (although
under s. 35(3)(b) the union could give itself permission to make application); and
(2) the Brandon agreement was still in effect—not within the three month window.
Held, the application was granted. Because there was not a unit in place in respect of the new area,
application could be made at any time. This was not the same bargaining unit as the others, so the
bars do not apply.
A union with conflicting timelines in different CA’s, which wants to amalgamate into one unit,
can apply for a new unit, and be considered as a new applicant for a new unit, governed by
(Mitchell: apply this case with caution.)
(Consider: What if union certified, w-a CA in one location, wants to challenge a union in another
location. Could it apply for one large unit, w-out restriction? Probably not. Sawatsky was an
attempt to accommodate a union caught by a technicality. It would likely not work for a union
attempt to exploit the law to avoid time lines. Would have to proceed in two steps: get certified at
new location, then apply for one unit.)
s. 35(3) Where a collective agreement has terminated and the parties have, either after the termination or
within three months before, bargained collectively with a view to renewal, no application for certification
may be made until 90 days after the termination, except
(a) by the bargaining agent which was a party to the terminated agreement; or
(b) with the consent of that bargaining agent.
Imposed first agreement
s. 35(4) Where an imposed first agreement (s. 87) is in effect, no application may be made by another
union during the term of that agreement.
Strike and lock-out bar
s. 35(5) Where the employees are lawfully on strike or locked out, no application may be made by a union
within the first six months of the strike or lockout, and thereafter an application may be made only with
consent of the board.
Prior application bar
s. 34(2) An application may be made at any time where no collective agreement is in force and no union
has been certified, subject to s. 35(3)—voluntary recognition—and any regulation.
R. 8 (14) If application to replace another union as the certified union fails, the challenger must
wait 6 mo’s from date of board decision (or less w- leave of the board). (Unless there’s a technical
error [r. 8(15)] based upon which the board may give its approval for another application.)
R. 8(16) challenger may, w- permission of board, appear as an intervenor on subsequent
applications in the interim.
Northern Taxi v. Manitoba Labour Board (1958) Man. Q.B.
The board, after having refused a union’s application, elected not to apply the prior application bar.
The employer argued that this was improper. Held, the board acted outside its jurisdiction. Not the
law now, however case still stands for:
If the board is going to waive the six-month bar, it must give the employer notice.
A waiver of the six-month bar is a separate order, and may not be included in the original
order rejecting application for certification.
s. 37 Even if application out of time, if board feels there would be substantial harm to either party, time
limits can be waived. (never used)
s. 36 Where an agreement is concluded within fewer than 30 days of notice to bargain, the employees in
the unit or anyone on their behalf may apply to the board, which can require the parties to the new
agreement to show cause why a union which is not a party to that agreement shouldn’t be allowed to apply
for certification in respect of the unit. (i.e., must show that the new agreement is legitimate).
WITHDRAWAL OF APPLICATION
s. 142(1) no specific authority regarding withdrawals, however, this section gives the board broad
discretion over its duties, implying such authority.
Sara Lee Bakery (1996) Ontario
Union fumbled its application –withdrew. Allowed to withdraw and apply again. Bd sd employees
wishes not tested at all.
In an application for leave to withdraw an application without penalty, the board shall
consider: (1) whether the wishes of the employees have been tested, and (2) whether there
was an abuse of process.
Winnipeg Clinic v. Manitoba Labour Board (1980) Man. Q.B.
Union applied for certification with adequate support, but the problem was that the support was
amassed on the employer’s premises and on the employer’s time—which, at the time, was an ULP.
As the remedy for the ULP would have been rejection of the application, the union withdrew the
application by consent of the employer. A few days later, support had been amassed properly, and
the union reapplied. The employer argued that the prior application bar should be applied. Held, the
bar did not apply.
an application withdrawn with leave of the board is NO application; withdrawal is not akin to
Sheraton Fallsview Hotel (1991) Ontario
After two withdrawn applications, the union applied a third time within four months and the
employer argued abuse of process. The employer wanted board to dismiss third application, and
impose a six-month bar, b/c of abuse of process. Board refused.
The overriding consideration is whether the wishes of the employees have been tested.
Board should be careful not to punish an unsuccessful applicant, even where the union may
have engaged in previous irregular or improper conduct.
A board will not remove the bar, despite withdrawal, if the union is simply withdrawing to
avoid an unfavourable result.
Pacific Forest Products (1997) BC
Company didn’t want application going in when it was in the middle of negotiations.
o Applications for withdrawal will be approved.
o Bare request sufficient, although reasons can be included.
o Board has complete discretion.
Withdrawal will be barred where it poses significant prejudice to the employer (disruption to
its operations, or potential). (easier test than Sheraton – attempt to avoid losing)
Where there is prejudice, it will be weighed against the prejudice to the union of rejecting its
Strike and lock-out bar
s. 35(5) Where the employees are lawfully on strike or locked out, no application may be made by a union
within the first six months of the strike or lockout, and thereafter an application may be made only with
consent of the board.
Radio Lunch (1950) Ontario (not taught this year)
Although the union had nearly 100% support, it opted to have an illegal recognition strike instead of
applying for certification. Held, certification was refused until the strike was ended.
NOTE: To prevent this union immunity from outside applications, employees who genuinely want another
union have two options:
(1) Refuse strike mandates, and/or
(2) Refuse to ratify collective agreements.
XII -- WHAT IS AN APPROPRIATE UNIT?
Right to apply for certification
s. 34(1) A union seeking to be certified as the bargaining agent for employees in a proposed unit
appropriate for collective bargaining may … apply to the board for certification ….
s. 39(1) After reviewing facts, board shall determined whether the proposed unit is appropriate for
s. 39(2) board can alter description and add or exclude a class of employees. It can also create two or more
units appropriate for collective bargaining.
s. 39(3) professional employees are to be kept separate.
s. 39(4) board can certify immediately, but defer decision on constituency.
s. 40(1.1) — In determining the appropriate bargaining unit, the board may consider the union’s proposed
unit and the employer’s alternate proposed unit.
s. 47 Employer has no status go give info to board on wishes of employees.
s. 47(2) An employee may challenge an application only on basis of intimidation, fraud or coercion. No
Rule 8(12) Employer can object to proposed unit, but must file separate nominal roll.
―Appropriate‖ could be employer unit (all-company), craft unit (occupation), technical unit (skill), plant
unit (vs office unit), or any other unit.
Arguments: community of interests, how easy is it to distinguish one unit from another, jurisdictional
disputes, undue fragmentation, industrial stability, difficulty in organizing a larger unit, small unit is a foot
in the door, same union can represent separate units.
Recall Preamble: overriding principle of the act is to facilitate collective bargaining. The board should
design a unit that the union can reasonably hope to organize.
ICBC (1974) BC (Weiler decision)
Four different unions applied for certification in respect of various combinations of the employer’s 1,600
employees (1000 in head office), divided into nine different divisions. No one wants the entire workforce.
But, employer wanted one union to represent all employees. Held, one union was to be certified for all
employees, to be selected by representation vote.
Basic principles of determining appropriateness:
(1) Board, not employees, determines appropriateness. [underscores s. 47(2)]
(2) Once an appropriate unit has been determined, there is a strong presumption against changing
(3) Avoid small units where possible, to avoid fragmentation (a ―chaotic patchwork‖).
(4) Consider why employees want a given unit, although such wishes are not binding.
(5) The appropriate unit to be conducive to (a) bargaining and (b) settlement, without (c) strikes.
(6) Being the first union to apply for a sub-section of the employer does not give an advantage, if
bd thinks larger unit justified.
Arguments in favour of larger units:
(1) Administrative efficiency and convenience — i.e., one set of negotiations; especially where
management, administration are centralized.
(2) Lateral mobility — i.e., if short-term lateral transfers between areas are likely, don’t want to
confuse matters by having different unions certified in different places. (Temporary transfers
are the issue here, rather than permanent.)
(3) Common framework of employment conditions — the more similar the conditions, the more
appropriate a larger unit; don’t want to create artificial disparities.
(4) Industrial stability — larger units mean greater barriers to strikes, especially where there is
functional interdependence between employees. Don’t want one unit shutting down another,
which did not vote to strike.
(5) Community of interest — Can the interests of all employees reasonably be reflected in one
round of negotiations? (See next case.)
(6) Geographical factors — Cost of living differences a factor.
(7) Public interest — If a shutdown would mean denial of essential services, industrial stability
should be promoted. Here, public employer with a statutory monopoly.
(8) Type of employer — in addition to the above, precedent; how is this type of workforce
typically organized? Industry practice.
Usarco Ltd (1967) Ontario (community of interest at two locations)
Two Hamilton plants did essentially the same thing, except that one processed ferrous metal and the other
non-ferrous. The management of both was effectively the same, as was the source of material and the mode
of delivery. In addition, it was not uncommon for employees to be transferred temporarily from plant to
plant. Still, the union wanted to represent employees at only one of the yards. Held, this was not an
appropriate bargaining unit; there should be one large unit instead.
How to assess ―community of interest‖:
1. ―Functional coherence and interdependence‖ (here, there was intermingling of
employees, and production sometimes began at one plant and was completed at the other)
2. Nature of work. (How similar is it)
3. Conditions of employment (consider also fringe benefits)
4. Skills of employees
5. Administration by employer (is it joint, or is there separate management)
6. Geographical factors
Consider also: managers present at each site, or head office?
Economic effect on company of separating the two locations (e.g. cdn’t transfer)
Hospital for Sick Children (1998) Ontario
Will the unit as proposed cause serious labour relations problems? If not, accept it as proposed.
Kidd Creek (1998) Ontario (updates USARCO)
Two locations – one mining, one metallurgy. Interdependent in an economic sense. One can’t function
without the other. However, Board found each division stood alone administratively, and certifies for one
site. Skills also different. Balance shifts towards granting single site certification. Whip-sawing? Too bad.
Also, the risk of one site being able to shut down the other site is real, but it would happen so infrequently
that it is not conclusive.
Sick Kids test affirmed. community of interest regarding working conditions now less significant.
That community of interest can be purely economic.
Test: does the functional coherence and interdependence of the two sites suggest that a single site
bargaining unit would likely lead to serious labour relations problems.
Education goals outside of employment can override ―community of interest‖..
K-Mart (1990) Ontario
Union requested certification in respect of one of four Toronto stores; employer said all four should be
included in the unit. Union argued that because policy was administered at the store level, working
conditions were different at each store and smaller units were thus appropriate. Further, hiring was done at
the store level (although salaries and benefits were centralized), and the company’s own regional plan
placed the Toronto stores in a larger region, so how could it be seriously argued that the only appropriate
unit was Toronto? Held, that the union’s proposed unit was appropriate. The USARCO factors were mostly
met, but there was no functional coherence and interdependence.
Union’s proposed unit will be accepted, unless there is functional coherence and interdependence
among all units.
Factors leading to the certification of a single-location unit:
(1) Several locations within the municipality
(2) Local management has control over operations
(3) Little or no intermingling of employees
(4) Union organized on the basis of a single-location unit
(5) Larger unit could impede collective bargaining; board will usually favour bargaining
Note: Board is also free to amalgamate units later, if applications are received in respect of other stores.
CIBC (1977) Canada
Union wanted to organize eight branches. Board said single branch units okay.
Where attempts to organize many locations have failed, single branch units okay.
Anti-union attitude of employer may be a factor.
University of Manitoba (1986) Manitoba
UMFA wanted to represent part-time instructors in Arts, one of 21 faculties and schools.
Held, this was not an appropriate unit, for the following reasons:
(1) Strong community of interest with other faculties.
Wages/hours/teaching skills the dominant facets of employment, not subject.
* (2) Attempted to organize other faculties but failed.
Failure to organize a larger unit is not a reason to certify a smaller unit.
(3) Industry standard was for union to represent all full-time employees, so this should be
adhered to with respect to part-time employees.
(4) Fragmentation of labour at university has historically produced chaotic results; cited
University of Ottawa case in support of this.
(5) Defining a larger unit would not be a significant impediment to labour relations
To argue against this case, cite the difficulty involved in organizing transient employees.
Moonlight Building Maintenance (1990) BC
The union had recently argued in respect of another, similar application that a bargaining unit consisting of
less than all B.C. employees would have a devastating effect on collective bargaining. Now, in this case, it
argued that a smaller, separate bargaining unit should be granted. Held, the smaller unit was refused. The
union was strongly reproached for its selective argument.
Industry practice, and previous position of the union, are persuasive.
Motor Coach Industries (1992) Ontario
The union requested one large unit, to include both plant and clerical employees. The employer argued that
each type of employee should have a separate unit, and relied on the case of H. Gray Ltd., which said that
only in exceptional cases should office and plant employees be joined, as their interests are divergent. Held,
the larger unit was granted.
White collar and blue collar to be considered as having a community of interest.
Gender bias is defeated by having a single unit.
Collingwood Nursing Home (1997) Ontario
Norm: separate unit for FT and PT employees. Union has single unit. Employer applies to split it. Board
rejects. There was much crossover between FT and PT status.
FT and PT employees in same jobs share a community of interest, and should be in one unit.
Sterling Newspapers Group (1999) Saskatchewan
Union wanted to represent just the press room at the Leader Post. Allowed, even though board found that
the unit proposed was not the most appropriate unit.
The board does not have to certify only the ideal unit.
5-point test for rejecting under-inclusive units.
1. No discrete skill or other boundary surrounding the unit.
2. Intermingling with other employees.
3. lack of bargaining strength in proposed unit.
4. union could realistically organize a larger unit.
5. a more inclusive choice of unit exists.
XIII -- MODIFICATION OF A BARGAINING UNIT
R. 15(1) Contemplates amendment to certificate. (use board form)
R. 17(1) Application may be made for the review, modification and/or rescission of a decision of the board.
Olivetti (1974) BC
Union received certification for 25 employees, excluding two in Nanaimo. Later, it wished to add those
two. The issue was whether the fact that they had 25 of 27 (a clear majority) meant that they were
automatically entitled to add the others. Held, there was no such right. This would be a perversion of the
principle of free choice as to representation.
To add to an existing bargaining unit, two majorities must be shown: a majority of the general body
of employees and a majority of the group to be added.
XIV -- ASCERTAINING EMPLOYEE SUPPORT FOR CERTIFICATION
s. 45(1) Evidence that an employee is a member of the union conclusively deems the employee to want
s. 45(4) Exception: where the membership has been solicited by fraud, intimidation, coercion or the threat
of penalty, or if the information about dues required to be provided by s. 45(3.1) has not been provided.
s. 45(2) A person is a member of the union if
(a) he joined within six months before the date of application; or
(b) he was a member on the day six months before the application,
and has not, before the application, taken reasonable and unequivocal steps to terminate his membership
(and has not been suspended or ejected by the union).
R. 8(2) In support of an application for certification, a union must file a list of all employees who wish to
have the union represent them, along with written proof of such desire (i.e., membership cards).
R. 8(4) Information submitted to the board pursuant to R. 8(2) is secret and not open to inspection other
than by the board and the union. (Policy: avoid employer revenge)
R. 8(9) The employer must, in response, file a complete list of all employees in the described unit,
complete with names, addresses and classifications.
R. 8(10) Employer list in R. 8(9) is not open to inspection by the union, unless there is a dispute, in which
case the board has the discretion to release the names of the employees in the disputed classification.
R. 8(12) If the employer claims the proposed unit is inappropriate and therefore wishes to request a
different unit, it must file its own proposal (which classes should be added or subtracted).
R. 8(13) If an application under R. 8(12) is filed, union is entitled to the names but not the addresses of the
employees in the proposed new unit.
R. 26-29 govern the conduct of a vote.
R. 28, Rules of Procedure Eligibility to be included in calculation of support for union:
(a) Part-time employees included, so long as they have a regular schedule.
(b) Casual and substitute employees are excluded, as are employees hired for a term of 12 weeks
or less within two weeks before the vote.
Payfair Stores (1965) Man. Q.B.
Employer wished to cross-examine the union in order to challenge its claim of employee support (i.e.,
believed that fewer employees had signed up). Can there be disclosure of this information at the actual
hearing? Held, no disclosure. The purpose of the secrecy rule is to prevent employer revenge or coercion,
which would be no less likely at the hearing stage than before. It is the board’s function alone to satisfy
itself of the adequacy of the information provided, so it is within the board’s jurisdiction to refuse
The case underscores the importance of confidentiality of union membership.
The employer has no status in the determination by the board of the wishes of the employees.
The employees, on the other hand, can file a complaint of ULP if they feel that there was intimidation,
fraud or coercion by the union.
Transair Ltd. (1976) S.C.C. (federal)
In contesting a certification application, the employer conceded that it had no right to see the names of the
employees who had signed up, but still wanted disclosure of how many had joined.
Held, disclosure refused. It is no part of the hearing to determine adequacy of support; that’s an
administrative task for the board to perform, not a quasi-judicial function.
All that the employer is entitled to know is whether there is enough support, not exactly how much
support there is.
Board may determine voting constituency
s. 40(1.1) On receiving an application for certification, if the board has not as yet determined the unit that
is appropriate for collective bargaining, the board may determine the voting constituency to be used for the
vote mentioned in subsection (1) and, in doing so, shall take into account
(a) the description of the proposed bargaining unit included in the application for certification; and
(b) the description, if any, of the bargaining unit that the employer proposes.
(Question – if there is a challenge to the size of the unit, is the vote still held w-in 7 days?)
Level of support required
s. 40 On an application for certification, where the board has determined a unit appropriate for collective
bargaining and is satisfied that
(1) 65% or more of the employees wish to have the union represent them, the board shall
certify the union without a vote;
(2) between 40% and 65% of the employees wish to have the union represent them, the board
shall conduct a representation vote; and
(3) less than 40% wish to have the union represent them, the board shall dismiss the
Mrs. K’s Food Products (1983) Manitoba C.A.
As of the date of application, eight of 14 employees supported the union. Miraculously, though, as of the
date of the hearing, there had been eight layoffs (guess who)! The union argued that it should be certified
anyway, but the employer responded that the union’s support was inadequate.
Held, by the board, that there was adequate support at the date of application, so certification was granted.·
On appeal (judicial review), held, that the board’s decision was patently unreasonable because it failed to
take into account the fact that the union had no support as at the date of hearing (note, however, that this
was decided under different legislation).
you could argue that this case stands for the principle that the board has the jurisdiction to consider
all relevant information, therefore if it is considering whether to grant discretionary certification,
it could refuse to do so on the grounds that despite a gross infraction of labour law, there is
insufficient support in the unit for certification.
Simpsons Ltd. (1985) Ontario
Of 118 employees on the date of application, 22 were slated to be laid off. The employer argued that there
should be a vote, as the layoffs may result in an erosion of the union’s support. Employer also argued a
―build-down‖ principle — i.e., that the wishes of the 118 employees were not representative of the 96, but
this did not fly; the reduction in number of employees was not enough to trigger this, and anyway, the
layoffs would not affect the type of employee. Held, the laid-off employees were entitled to vote anyway,
as they retained an interest in the bargaining process; perhaps the union could negotiate recall rights and
they could be called back.
Laid-off employees should still vote because they retain an interest in collective bargaining (i.e.,
seniority, call-backs, etc.)
Kodiak Industries (1986) Manitoba (S. 45(2): ―reasonable and unequivocal steps‖ to resign)
March 17: Union applied for certification and it was suggested that one of the cards should not be
considered. The employee in question testified that he originally signed the card but had requested two
weeks later, upon further consideration, that the card be returned, only to be told ―don’t be silly‖. March
15: Employee was asked to sign a new card because of a deficiency in the first one, but refused to do so,
saying that he had resigned; the union claimed that he had just said that he was too busy, so the union rep
corrected the deficiency himself. March 19: Employee sought confirmation that his card had not been
counted, but was told that it had been. March 20: Employee received confirmation that the card had been
included but was assured that it wouldn’t matter because there was going to be a vote. Held, that the card
should not have been counted as the employee had taken ―reasonable and unequivocal‖ steps to resign.
Although the general rule is that a written resignation is required, the facts of this case made the resignation
(1) Refusal to sign a new card; it was reasonable on this ground alone for the employee to expect
not to be counted, as he had been told that the original card was deficient.
(2) Verbal request for the return of the card
(3) Repeated concern over whether card had been counted
(4) Alteration of deficient card without employee’s consent (unacceptable)
(5) Absence of employer influence over employee’s decision
Normally an employee will have to put her resignation in writing, but evidence may show that other
sufficiently clear and emphatic gestures have been made.
Onus of proof on employee.
Information to be provided to employee
s. 45(3.1) Unions must disclose dues and fees at time of solicitation.
Proof of information provided
s. 45(3.2) Proof of compliance with subsection (3.1) may consist of the signature of the employee on a
statement that the employee has been provided with such information.
Fraud intimidation, etc
s. 45(4) if card obtained via ULP, card shall not be counted, and application may be dismissed.
s. 47(2) Employee can file an objection to application on ground of ULP, but that’s the only status the
Can-Eng Metal (1988) Ontario
Employee says card didn’t count b/c he didn’t pay the dollar to join. In Ontario, had to pay $1. In Mb, no
cost. Recruiter had little credibility. All of the cards he obtained were not counted. In addition, there was
heavy-duty pressure to join (―scabs‖ would suffer damage to cars). However, this was a tough workplace,
and tough salesmanship was okay.
Board requires a high standard of integrity and precision in the evidence of union support.
Acts of intimidation will not deter the employee of reasonable conviction. Salesmanship is not
Where improper conduct is established, the board must assess its impact in the light of the
circumstances, including the nature of the particular workplace.
Where union officers or officials are guilty of misconduct, the board will be unable to rely on any
of the evidence filed.
EBN Grainco (2000) BC
Members were signed up with the understanding that this was to put pressure on the employer to raise
wages. The employees were promised the union would consult with them after talking to employer. They
were also told that signing before certification would avoid the initiation that would be charged after
certification. However, employer fired organizers, so application filed right away without promised
Promises to employees to get them to sign up must be honoured.
MFCW v. Paddlewheel Riverboats Ltd (1989) Manitoba
Seasonal employer organized by union during low-season, when there were few employees – a fraction of
the usual number. 65 employees down to 14. Over 55% support of 14 signed, which then meant automatic
certification. A group of employees filed a letter, following application, asking to have their names
removed, however board found no unfair labour practice by the union, so there was no basis on which to
remove names. Changing your mind isn’t sufficient. Court noted the ―buildup principle‖ – considered by
some LRB’s when a union applies at a time when employment in the union is at an abnormally low ebb.
Practices vary across the country, however, in Ontario the principle is usually applied to plant openings, not
to when there is a regular cyclical fluctuation in the work force, provided there is a substantial and
representative number of employees as of the application date. Cyclical increases because of student
summer employment are not grounds for applying the principle. Certified.
S. 45(1) of the act is ―crystal clear‖ that the signatures filed on the date of application are
conclusive evidence, unless there has been impropriety on the part of the union under s. 451(4).
The ―build-up principle‖ – which implies that a union has deliberately filed at a low-ebb moment
in employment to more easily achieve certification – may not be applied in Manitoba.
Prof notes that under 48(1) the board may order a certification in any case, although that appears
to be in conflict with s. 40(1), and that s. 48(4) could be used to order a vote when the employment
levels are at seasonal highs.
Order vote in any application
s. 48(1) The board may, in any certification proceeding, for purposes of satisfying itself as to the wishes
of employees in a unit or in a proposed unit or as to the wishes of professional employees practising a
profession in a unit or a proposed unit, order that a vote or such votes as it deems advisable be taken among
the employees or among the professional employees, as the case may be.
Board's power to extend time
s. 48(4) Despite subsection (3), the board may extend the time for taking a vote, if the board is satisfied
that exceptional circumstances exist warranting an extension of the time.
“The build-up principle”: When it is clear that a large number of employees of a different type than the
present employees will soon be arriving, it is inappropriate to assess support for the entire unit before
everybody can participate in the selection of a bargaining agent. Therefore, a representation vote may be
postponed if the build-up is to occur relatively shortly.
City of Toronto (1966) Ontario
Majority support, without fraud or intimidation, is democracy. Certify.
Once a vote has been held, if its validity is in question, the inclination should be to count the
election as valid
Employee expectations that their votes will be counted should be taken into account..
Citipark (1996) Ontario
Union official accused of ―accosting‖ voters on day of vote. Board said there is no silent period.
Electioneering (talking to voters) on election day is okay.
The statutory prohibition on electioneering is interpreted to mean intimidation, coercion or undue
Electioneering on voting day
s. 48.1(1) an employer or union (or agent) who, on the day of the vote, at the place of work or polling
(a) distributes printed material; or
(b) engages in electioneering;
for the purpose of influencing the vote, commits an unfair labour practice.
Electioneering by other persons
s. 48.1(2) Any other person who electioneers is guilty of an offence.
XV -- EFFECT OF CERTIFICATION
s. 44 When a union is certified as the bargaining agent for employees in a unit,
(a) it immediately replaces any other bargaining agent for those employees, and has exclusive
authority to bargain collectively on their behalf and bind them to a collective agreement;
Wpg Police and Irvine (1980) Mb C.A.
Employee made a deal with police, independent of the union, to be sent to law school. The union objected
on the ground that other officers should have had the opportunity to be considered, and that the agreement
was therefore contrary to the collective agreement. Held, the contract was a nullity because it dealt with
matters touched on by the collective agreement.
The employee cannot contract directly with the employer on such matters;
the common law of contracts is irrelevant to matters dealt with by labour relations legislation.
Private contracts between employer and employee on such matters are therefore nullities.
Weber and Ontario Hydro
Employees can’t sue employer, even for defamation.
XVI -- DE-CERTIFICATION
Major impediments to decertification:
(1) Timing issues (see s. 49(2); same bars apply as to applications for certification)
(2) Must be initiated by employees, free from employer influence, and most employees lack the
sophistication to do this themselves.
GROUNDS FOR DECERTIFICATION
Union no longer represents majority
s. 49(1) Employees may apply to the board to have union decertified or, in the case of an uncertified union,
to have bargaining rights cancelled.
s. 50(1) If the board is satisfied that fewer than 50% of the employees support a s. 49(1) application, the
application shall be dismissed. (Petition okay, don’t need cards.)
Abandonment of bargaining rights
s. 53 Where, after 12 months have expired since certification, the bargaining agent has failed to exercise its
bargaining rights, the board may, on application by any employee or on its own motion, cancel the
certification of the bargaining agent.
s. 52 Where there has been fraud, and evidence to support a finding of fraud was not presented at the
hearing, and could not by due diligence be known, certification can be revoked.
Effect of vote
s. 54 After certification cancelled, the CA still applies until different arrangements are made. (Question:
this is according to Mitchell, although the section seems to say the CA is terminated.)
s. 49(2) Incorporates, by reference, the application bars; these now apply to applications for decertification,
s. 49(3) allows for an application to be entertained if not to do so would cause unreasonable, substantial and
irremediable damage to the employees or the employer.
STATUS TO REQUEST DECERTIFICATION
s. 53(2) Only the employees have status; the employer has no status with respect to the employees’ issues,
but can request an investigation with respect to abandonment.
Bill Bailey of Belleville (1992) Ontario
On the date of application for decertification, there was only one employee in the unit. He had tried before
to get rid of the union, but a year before this application, management had interfered substantially in the
process. Held, this latest application was also refused.
Employees have to make their own choice, untainted by employer influence, and this was clearly not
a voluntary application.
If challenged, onus on employee seeking decertification to prove no interference.
Royce Dupont Poultry Packers (1992) Ontario
Application for decertification. Because of several egregious ULPs, there had been a s. 41 discretionary
certification. There had also been a previous, withdrawn application for decertification, in which
management had played an active role. Held, the application was dismissed. Although this petition was
employee-generated, the lingering effect of the initial ULPs and management’s role in the previous petition
would lead the reasonable employee to perceive management influence upon the present application. The
board could not satisfy itself of the legitimacy of the wishes of the majority.
Previous ULP’s by employer can affect the apparent legitimacy of an application for
Where management plays an active role in seeking a de-certification, a later application is to be
viewed with suspicion.
s. 50(2) If the board is satisfied that 50% or more support the application for decertification, there will be a
s. 50(3) the union can waive its right to the vote and the board can then cancel the certification forthwith.
Conduct of the decertification vote (including eligibility) is governed by Rules 26-29.
XVII -- COLLECTIVE BARGAINING
The post-certification process
(1) Either union or employer issues notice to bargain,
(2) This creates an obligation to negotiate,
(a) must meet ―without delay‖; i.e., within 10 days;
(b) must bargain collectively, either in person or through authorized representatives; and
(c) must bargain ―in good faith‖ and ―make every reasonable effort to conclude a collective
Carter article “Duty to Bargain in Good Faith”
LRB’s are asserting greater control over the content of bargaining than ever before. They are
finding that parties have a positive obligation to discuss fully all legitimate bargaining proposals. They are
also requiring that parties not carry to impasse proposals that have been considered illegal. The doctrine of
illegality has been expanded in Canada to encompass illegality in its broadest sense. This gives substance
to the duty to bargain in good faith.
A downside to the duty is that it has encouraged parties to posture to get grounds for a ULP
Examples of bad faith: refusal to meet, attempts to circumvent the bargaining agent, a refusal to
discuss a particular issue, a refusal to supply information, a refusal to execute a collective agreement upon
the completion of negotiations, taking measures that would threaten the existence of the union (seeking
guarantees against union reprisals against anti-union members may or may not be the subject of a bad faith
Radio Shack case significant (where employer opposed Rand formula): 1) otherwise legal acts
can become illegal in the context of previous ULP’s. 2) Board can tell a party to withdraw a condition
from future negotiations (in this case dictating the result on that particular issue).
s. 87 (3) A certified union can also strike to get a suitable first agreement, or under s. 87 can request that
one be imposed by the board, provided that
(a) the union is certified;
(b) a conciliation officer has been appointed and has concluded that an agreement is unlikely
to be reached (or 120 days have elapsed since the appointment); and
(c) at least 90 days (or 180 days, if extended) have elapsed since certification; this is the s.
10(2) post-certification freeze on terms and conditions of employment.
NOTE: The 120 days since appointment of a conciliator and the 90 or 180 day
statutory freeze can run concurrently.
Considerations in bargaining
Typically, the employer and the union begin far apart but gradually move closer together, into what
is called the ―contract zone‖. At this point, the threat of a strike or lock-out tends to compel the parties to
When an imposed first agreement becomes a possibility, however, the issue becomes not the
avoidance of a strike, but rather, the prediction of what form the imposed agreement will take. Clearly, this
provides less impetus to reach an agreement, and so the government has so far resisted taking a more active
role in reaching a first agreement.
Formerly, the process in the imposition of first contracts was ―final offer selection‖, which forced
each side to tender its best offer, as the board would select one or the other, period. Today, however, the
process is ―conventional interest arbitration‖, where the board considers the offers of each side and usually
comes up with a hybrid.
What is a collective agreement?
s. 1 ―Collective agreement‖: an agreement, in writing, between employer and union, containing the terms
and conditions of employment for the bargaining unit. The agreement must include rates of pay and hours
The role of conciliation
s. 67 (1) Either party may request that a conciliation officer be appointed, and such request
should be accompanied by a statement of the difficulties encountered in negotiation.
(2) The conciliator’s role is to endeavour to bring about an agreement.
(3) The parties are obliged to meet with the conciliator and inform him of the terms and conditions
that are acceptable to them; failure to do so is an ULP.
s. 66 The employer is also obliged to provide certain information to the unit; failure to do so is an ULP.
s. 69 (1) Any agreement reached must be ratified by a majority of all employees in the unit.
(2) Employees must be given
(a) reasonable notice of the vote; and
(b) reasonable opportunity to vote.
Note that no ratification is required for an imposed first agreement, s. 69(4)(a) or for an amendment to an
existing collective agreement, s. 69(4)(b).
s. 72(1) A collective agreement, once ratified, is binding upon the employees, the employer and the union.
s. 72(2) The agreement, once ratified, must be committed to writing, delivered by each party to the other,
and filed with the board (two copies).
COMPULSORY DEEMED CLAUSES
s. 76(2) Compulsory check-off of union dues.
s. 78 Final and binding settlement by arbitration or otherwise.
s. 79(1) No termination except for just cause.
s. 80 Employer must act fairly and in good faith in administering the agreement.
s. 81 Ongoing consultations during the term of the agreement, if such is requested by either party
(i.e., can be imposed unilaterally by either party).
Watkins Inc. (1983) Manitoba
After negotiations, everything was resolved except the issue of wages. The employer was willing to give
increases to employees in categories I and II, but proposed a decrease for category III, which it described as
unproductive and overpaid. The union argued that this was a breach of DTBGF. Board found no breach.
The content of the proposals should not be considered, only the conduct of the employer, Ugly
proposals are not a ULP
Note: Watkins is not cited in other decisions on QL.
Tan Jay (1986) Manitoba
This was a mature bargaining relationship with a fairly good history; the union’s complaint was simply that
the employer’s proposals were unacceptable and that the employer thereby breached DTBGF. A number of
breaches were found (although no remedy was needed as the parties had reached agreement).. Unlike in
Watkins, the board was now prepared to accept the illegality principle and examine the content of
proposals. A new test was enunciated.
the board will look at a proposal to determine whether
(1) it is illegal (i.e., an overt breach of the Act); or
(2) it is contrary to the scheme and purpose of the Act in the sense that it
(a) would undermine the status of the union as bargaining agent; or
(b) is an inflammatory proposal that is part of a coercive scheme calculated to
undermine the support of the union.
A proposal that satisfies any of the above criteria will be illegal if carried to impasse because of its
defiance of the purpose and scheme of the Act, to encourage collective bargaining rather than to
destroy the bargaining relationship.
Proposals with the sole purpose of harming the bargaining unit, and no legitimate business
purpose, are ULPs.
You could use this case to argue that if a proposal is overtly illegal, it may be an ULP just to
propose it, even if not carried to impasse.
(1) Shrink the bargaining unit
Legal to propose, but can’t carry it to impasse because there is a relevant statutory process
(i.e., sign up members and apply for variation).
(2) Change union security provisions so part-time employees aren’t obliged to join.
ULP. Sole purpose was to undermine the union; no legitimate business purpose.
(3) Employer would not be obliged to deduct union assessments, just dues.
Again, calculated to undermine union without legitimate business purpose.
(4) Restriction of access by union representatives to the plant.
Not dealt with, as legislation now permitted an imposed ―right of access‖ provision.
(5) Reduce union’s right to audit payroll to verify deduction of union dues and benefits.
Clear effort to undermine union by impairing ability to enforce the agreement.
(6) Reduction of union’s right to check fairness of piece work rates. Since the rates could be
altered unilaterally by the employer at any time, this would constitute an unfair restriction on
the employees’ right to grieve earnings. Especially significant because rates could be altered
even during the currency of the agreement. (NOTE: here there was a business purpose, but a
ULP was still found.)
(7) Restriction of union rights to post materials on employee bulletin board.
Not a breach (recall C.I.B.C., supra).
(8) Union label no longer required to be included in garments. Not a breach.
(9) Removal of right to leave of absence for union reasons.
As this eliminated the right completely, instead of merely restricting it to situations where
legitimate business reasons did not preclude such leave, this was an ULP (breach of s. 5 right
to participate in union activities) and a breach of the duty.
(10) Removal of the right of new employees to grieve discipline and discharge, and of all
employees to grieve written warnings.
Since it is a common practice for arbitrators to refer to past discipline records in assessing
progressive discipline, culminating incidents, etc., this proposal would undermine the union’s
ability to protect its employees effectively.
(11) Removal of all seniority rights, including in respect of layoff and recall, and move to an
entirely merit-based system.
The employer’s one good argument! The union had reached agreements with other companies
that did not include seniority rights, and employer therefore argued that it was placed at a
competitive disadvantage. Still an effort to undermine the union, since the seniority rights
were a hard-won gain from a previous strike, the result of ULP complaints resulting from
(12) Removal of wage scale from the collective agreement.
Not a breach, even though mandatory under the Act, because the employer proposed a piece
work scale instead. As long as rates are fully disclosed, this can be negotiated.
(13) Removal of all health and welfare benefits from the agreement.
Not a breach, so long as there is full disclosure of particulars of the employer’s position that
these benefits are in fact included in the larger wage package. The issue can then be
(14) Increase hours of work from 37.5 hours to 40.
Not a breach; hard but meaningful bargaining.
(15) Have management rights paramount over all provisions of the collective agreement.
Not a breach, as the proposal appeared to affect only implied rights that might be inferred
from the agreement, not overt rights. In any case, the matter was too vague to give rise to a
Per Mitchell: The confusing discrepancy between Watkins and Tan Jay may lie in Tan Jay’s history of
previous ULPs. It may be that against the background of previous misconduct, the board will be tempted to
look behind the employer’s conduct to see what its true intentions are. Still, note that even the sinister
Radio Shack was eventually exonerated (1985, Ontario).
Conclusion: most boards will avoid assessing content of proposals where possible, but
(1) this is often the best evidence from which to infer lack of bona fide intent;
(2) some terms may be so unreasonable as to suggest that the employer wants no agreement;
(3) content may be assessed where employer has a bad history of ULPs; and
(4) persistent hard bargaining on a number of major issues that cut to the heart of the agreement
may reinforce other evidence of bad faith and lead to a finding of surface bargaining (see
Radio Shack, supra).
Buhler Versatile (2001) MbLB Buhler’s misconduct included:
―sorry scott, you’re out of a job.‖ If backed into a corner, I’ll padlock the doors.‖ ―My first offer is always
my last offer.‖ Proposals: no limit on outsourcing, waive judicial review for grievances, eliminate seniority
for promotion. Offers got worse each time they met. Refusal to provide info on benefits. Proposal to
deceive dentist. Decision to sell off inventory layoffs not disclosed. Purposely evaded attempts to find
common ground by changing position without explanation.
Quotes Adams (Canadian Labour Law)
It is tantamount to misrepresentation to fail to disclose a decision that will have a significant impact
– such as a plant closure.
The deliberate tabling of inflammatory proposals which would likely provoke a breakdown in
negotiations may violate the duty. As will a sudden unexplained change of position, if it is
designed to avoid reaching a CA.
Bargaining data must be disclosed.
Parties must be willing to justify particular stances.
Can’t rely on a conciliator to pass on crucial info.
Opening proposals set the parameters of bargaining.
Can put proposals that undermine the union on the table, but cannot take to impasse.
Full reimbursement for lost wages during strike ($6m). Compensation to union for strike expenditures.
The remedy was to be compensatory, not punitive, and intended to bring the parties back to the status they
enjoyed prior to strike.
Consider: what would happen on judicial review? Royal Oak Mines and Digby are 2 SCC sources to use.
What are improper tactics?
(i) Refusal to meet
S. 62 requires either party to meet and bargain when given notice by the other side.
Bentley’s Sporting Goods (1959) Ontario
Employer must meet even if it knows that the majority of employees no longer wish to have union
No-Sag Spring (1968) Ontario
Employer objected to the union’s selection of negotiators; specifically, it wanted to deal with its own
employees, not the union president. The employer’s refusal to bargain was an ULP. even though the
employer had a subjective intention to reach an agreement, and thought it had a legitimate objection to the
union’s conduct, the objective branch of the test was failed and the employer was guilty of failure to make
all reasonable efforts to reach an agreement. Employer received a whopping $25.00 fine.
A party to a negotiation cannot refuse to negotiate because she objects to who represents the other
Burns Meats (1984) Ontario
Plants in different provinces each had separate units represented by the same union. Traditionally, there had
been one round of nation-wide negotiations, but this time the employer wanted to meet separately in each
province. Union refused.
Where an employer has a bona fide reason to bargain with a differently-configured unit, union
refusal to bargain will be a breach of the DTBGF.
Failure to co-operate in conciliation or mediation
S. 28(1) Each party who fails to comply with 67 or 102 commits a ULP.
Appointment of conciliation officer
S. 67(1) Either party can request conciliation, and minister will appoint a conciliator.
S. 67(3) Each party shall (a) meet with the conciliation officer and the other party; and (b) disclose what
would be an acceptable CA.
S. 102 (same as 67, but refers to mediation.)
New Method Laundry:
Duty to meet ends when negotiations reach an impasse.
Can’t refuse to meet to discuss conciliators report. S. 28 violation.
(ii) Unilateral alteration of terms and conditions of employment during bargaining
During statutory freeze - ss. 10(2), (3) (see page 4)
This is likely a per se breach (but recall that this is not an absolute freeze, but ―business as usual‖).
Queensway General Hospital (1991) Ontario
Before unionization, the employer had always given employees whatever raise was negotiated by the
nurses’ union plus 5¢, but when the union came in, declined to do this, saying it would violate the statutory
Held, this was a breach, as it was not consistent with ―business as usual‖.
The test for business as usual is: ―what would the reasonable employee expect the employer to do?‖
Motive is irrelevant. But note that s. 7 requires anti-union animus. S. 6 only
After expiry of the freeze
During negotiations, and after the freeze, the employer raised wages. Extra $75 on Monday, when union
reps in collective bargaining. The board ruled that such tactics raise the inference that the employer is
trying to undermine the status of the union, suggesting that beneficial terms do not require the work of a
bargaining agent. It communicates that without collective bargaining, employees can secure advantages as
great or possibly greater than with the union. If (S.10 in Mb) were to be read in a literal fashion, then an
employer could use the section to avoid a statutory duty to recognize a trade union and bargain in good
After the freeze expires, changes can be made
1. if negotiations have reached an impasse; or
2. if there are sound business reasons for the change.
However, a taint test applies, and if anti-union animus exists, there may still be a breach.
Central Park Lodges (1988) Ontario
After a seniors’ residence laid off registered nurses, union alleged a breach of DTBGF.
Held: no breach. The freeze had expired and there were legitimate business reasons for the decision,
without anti-union animus.
Complaints should b made under
s. 6 – interference with administration of a union
s. 62 – breach of DTBGF
s. 26 – complaint provision after agreement has expired.
(iii) Refusal to supply relevant information
Duty to provide info
S. 66 it is mandatory, upon written request, to provide names, classifications, wages and benefits (as well
as the cost of such benefits to the employer).
S. 27 Failure to provide this info is an ULP.
Noranda, DeVilbiss, Buhler: All breached these 2 sections.
S. 62 -- DTBGF, may also be breached, depending on how relevant it is to the process and how sensitive it
is from the employer’s perspective.
Inglis Ltd. (1977) Ontario
Union alleged that the employer misrepresented the likelihood of relocating its operations; however, there
was no evidence that such an intention existed at the material time.
Held, that there was no breach. However, if there had been a misrepresentation, it would have been a
breach of DTBGF as misrepresentation is the antithesis of good faith and destroys the basis of bargaining,
which must flow from honest representation and discussion.
Deliberately lying to the other side is a ULP.
If union asks: will you close, relocate, etc., must answer honestly.
(v) Failure to disclose relevant information not requested
Westinghouse Canada (supra)
The employer failed to tell the union, at the bargaining table of its tentative proposal to close down its
Hamilton plants. Held: no breach. If a final decision has been made which would have a significant impact
on the employees, the employer must volunteer or initiate disclosure of this information at the bargaining
table. If the decision is still preliminary, though, disclosure is not required.
A preliminary decision need not be disclosed. Only when made final.
Central Park Lodge (supra)
As the decision to lay off the nurses was not yet final, there was no breach in employer’s failure to disclose.
Consolidated Bathurst (1983, Ontario)
Here, a final decision had been made to close the plant, but this was not disclosed at the table and the union
made certain concessions about layoffs, etc., that would not have been made with proper notification of this
Held, this was a breach of the duty. Remedies ordered were similar to those in Westinghouse (e.g., bumping
rights, relocation expenses, payment of union organizing expenses, etc.)
A de facto decision, which only needs to be rubber-stamped by board, should be disclosed.
A threat to close, when no decision has been made, is also a ULP.
(vi) Shifting ground during negotiations and unexpected changes in position
General principle: unless there is some change in circumstances or other legitimate reason for the
switch, it is a breach of DTBGF to be a ―moving target‖.
Graphic Centre (Ontario) (1976) Ontario
After the parties had agreed on everything and the union was just about to take the proposal to its
membership, the employer introduced five new proposals to be negotiated.
· Held, this was a breach;
once an agreement is reached, it must be honoured.
Fashion Craft Kitchen (1980) Ontario
The union had an outstanding claim for $10,000 against the previous owner, for which the new owner
would be responsible, but as bargaining began, the union offered to waive the award as a goodwill gesture.
The lawyers got involved, though, and after a dispute about written releases, the union withdrew its offer.
The employer argued that the union had reneged on an agreement, but the union responded that the
agreement was not backed by any consideration. Employer now refused to meet.
Held, no breach, just a combination of unfortunate circumstances (blamed on the lawyers, naturally). Now
go back and play nicely.
An offer made in good faith without consideration, and later withdrawn on advice of a 3 rd party, is
not a ULP.
Hardesty Nursing Homes (1981) Alberta
After a strike began, the employer effectively withdrew an earlier proposal and replaced it with a new,
inferior version. Union argued breach of DTBGF.
Held, no breach. The commencement of a strike or lockout alters the bargaining relationship so severely
that it cannot be considered improper for either party to alter its position. Hostility is a foreseeable result of
Once a strike has started, all bets are off. Neither side bound to previous positions.
(vii) Communicating directly with employees
This situation usually arises out of the employer’s concern that its message isn’t getting back to the
employees, who would most certainly agree to its proposals if aware of all the facts.
It is indisputable that the employer has a right to inform employees of its bargaining positions, but
may not go further than what has been said at the bargaining table and should not disparage the union or
give the impression of bargaining directly with the employees.
Broader communication than during organizing period. The range of permissible communication
expands as negotiations bog down – e.g. impasse, strike deadline imposed, strike. During strike, few
The test for breach of DTBGF is whether the communications represent an effort to bargain directly with
(This is a narrower version of the previous Air Canada test: whether the communications constitute gross
misstatements of fact calculated to malign the union such as to jeopardize its status as bargaining agent.)
Fisons Western Corp. (1988) Manitoba
Union negotiated with two similar companies, and the end result was that this employer was paying 30%
more wages than the other. At the next round of negotiations, the employer demanded a 30% wage
reduction. The employer suggested first offer selection (this would have been beneficial because it is
determined based on common industry practice), but the employees refused to agree to it. The matter went
on to conciliation and then to strike. Throughout this process, the employer contacted the employees on the
picket lines and by phone, and by letter, to explain its positions, and now to ask them to come back to work.
This had no effect, so management began to call employees directly. One employee who was called
insisted on discussing the collective agreement, despite manager’s protest that he was not at liberty to
engage in this kind of direct negotiation. Eventually, after a very unsuccessful strike, the parties managed to
reach a consensual agreement with the help of a mediator, but what about the effect of the
Held, there was no breach. There was no evidence that the statements made by the employer were intended
as efforts to bargain directly with the employees (in fact, the one employee who had been called admitted
that he had not been intimidated into discussing the agreement). The communication was based on honest
concerns about loss of market share, etc.—i.e., merely statements of fact or opinions reasonably held about
the business, thus falling within the exception in s. 6(3)(f).
What’s okay (but barely):
―the union is bargaining for people who don’t work here yet!‖
―[our competitor] is now forcing prices down and if unchecked will take our jobs.‖
The union ―signed a sweetheart deal‖ with our competitor.
Said offered FOS, but union rejected.
―We are worried the union is out of touch with the industry and its members.‖
Calling people at home.
Going too far:
If the information is a gross mis-statement of facts which tend to unjustly malign the union such that
ability to represent its members was harmed.
Attempting to bargain directly with employees.
Statements of fact or opinions reasonably held about the business may be expressed to employees
after negotiations have reached an impasse.
Statements that unjustly malign the union will be a ULP.
Communications which amount to an effort to bargain directly with employees are a ULP..
(viii) Subject matter of bargaining
Illegal demands cannot be brought to impasse. For example, demands to shrink the bargaining unit may
not be carried to impasse; B.C. Telephone Company (1977, Canada), Tan Jay (supra). Buhler.
When does the duty arise?
The duty to bargain in good faith first arises as soon as notice to bargain is given by one party to the other,
ss. 60, 61, 62.
In general, any significant effort by a party to revive long-stalled negotiation imposes a duty on the other to
meet and bargain, provided that there is a real willingness by the reviving party to make accommodations.
Artistic Woodwork Co. Ltd. (1973, Ontario)
· Even after an impasse or during a strike, an indication of preparedness to make new concessions will
revive the duty.
Metropolitan Stores (1987, S.C.C.)
· The duty is not suspended if the employer attempts to seek judicial review of certification; in the interim,
the employer is obliged to commence bargaining.
· The duty ends with the conclusion and execution of a collective agreement, except that s. 80 requires the
employer to administer the agreement in good faith.
(f) Enforcement of the duty
Radio Shack (supra)
· A wide range of remedies was ordered, with the following stated objectives:
(1) Redress monetary losses
(2) Provide an opportunity to recapture negotiating momentum lost as a result of the breach
(3) Get the parties back to the table to work out their own agreement
· But recall limitations on remedies: not punitive, must be compensatory, and board cannot impose a
collective agreement (except pursuant to s. 87).
Digby (1983, S.C.C.)
―Sections 33(a) and 34(2) did not empower the Labour Board to require the employer to make the
specified collective agreement proposals. The power to secure compliance with the duty to bargain in good
faith could not be converted into one respecting reinstatement, restitution or compensation and legal costs.
Section 33(a) merely obliged the bargaining parties to meet and bargain and to make every reasonable
attempt to sign a collective agreement. Section 34(2) was limited to enforcing the obligations imposed on
the parties under s. 33. The words "in the opinion of the Board" did not avoid this limitation, for the Board
was only entitled to form such an opinion with respect to what was necessary for compliance with s. 33.
The Board had jurisdiction to order a complete proposal to be submitted and responded to, but could
not stipulate that the proposal include a wage schedule with progressive increases or the modified Union
security provisions. Both parties agreed that the employer would not contract out bus driving and that the
Union would not strike or withdraw its services.‖
A board can order withdrawal of terms, but cannot impose provisions of an agreement.
The parties should make their own agreement.
Royal Oak Mines (1996, S.C.C.)
A tentative agreement was reached, based on employer’s final proposal, but employees rejected it by 83%.
Result was a violent, 18-month strike. There was a full riot, which resulted in the firing of 42 picket line
violators. The employer refused to arbitrate these dismissals, and this led to a major explosion, caused by
the striking employees, which killed nine replacement workers. The parties still refused binding arbitration,
and the employer rejected the proposals of mediators. Meanwhile, an employee association was formed but
three separate certification applications were rejected because of concern that it was employer-dominated
(s. 43). The employer refused the board’s request for a final proposal, and also rejected the conciliator’s
final report as a basis for settlement. Finally, after the employer refused a request to retable the previously-
accepted offer and further refused to bargain until the issue of the employee association was resolved by the
board, the union alleged a breach of DTBGF.
Held, by the board, that there had been a breach of both the objective and subjective branches of the duty;
there was no intention to reach an agreement and no reasonable steps were taken to do so. The employer
was ordered to retable the offer, and a back-to-work protocol was implemented. Further, the offer was
altered: the requested seven-year term was shortened to three years, and changes were made to provisions
concerning statutory holidays, wages, security inspections and more. Objective test used: conduct and
proposals, not personal animosity. Court says Digby approach would be a cruel waste of time.
· At SCC, held, that the board had not exceeded its jurisdiction in so ordering. Because of the exceptional
circumstances, this was not patently unreasonable, per Lamer C.J.C., and per Cory J., even the correctness
standard was met. This was not imposing an agreement, per se, but giving the employees another chance to
ratify what was in effect a previous agreement—this is more than justified, given the tragic circumstances.
· Also: it is a breach of DTBGF to refuse even to discuss a term that is present in other agreements
in comparable businesses within the industry. (Really?)
· Per Major J., dissenting, there is no reason to impose new terms that have nothing to do with the actual
breach of DTBGF. This is, in effect, the imposition of a full collective agreement, and the board thus
overstepped its boundaries in looking beyond the actual breach.
Taking to impasse a proposal that the other party must not ever accept violates the objective branch
of the duty.
Remedies are the in the special competence of the board.
Extreme situations call for extreme remedies.
· Per Mitchell: This new position on DTBGF was prompted by the severity of the situation in this case.
Probably, the key is community interest; economic power will override reason (i.e., Canada Trustco) only
until grave consequences result; then, the board may step in.
(f) FIRST CONTRACT LEGISLATION
Either party may apply for an imposed first agreement where
(1) notice to bargain has been given by one party to the other;
(2) a conciliation officer has been appointed and either the process has been exhausted or 120
days have passed since the appointment;
(3) all statutory freezes have expired (i.e., the 90 days under s. 10(2) and any s. 10(3) extension);
(4) no collective agreement has been reached.
The imposed agreement may be arbitrated privately by an arbitrator agreed upon by the parties.
If this route is taken, the arbitrator must settle the terms of the first contract within 60 days.
Where the parties prefer to have the board settle it, the board will inquire into the negotiations and if an
agreement is not reached within 60 days, shall, within a further three days,
(1) settle the provisions of a first collective agreement, or
(2) inform the parties that it believes a consensual agreement might be reached between the
parties within 30 days and therefore declines to settle the provisions itself.
If an agreement is not reached within these 30 days, the board shall settle the agreement within a further 30
days. (Result: the imposition of a first contract may take up to 123 days.)
The application by either party for an imposed first contract will terminate any strike or lockout in effect,
and the employer shall reinstate the employees (subject to certain terms and conditions).
In settling a first collective agreement, the board or arbitrator shall accept any provisions agreed upon in
writing by the parties, shall give the parties the opportunity to make representations and give evidence, and
may also take into account
(1) collective agreements in effect for employees performing similar functions under similar
(2) such other matters as will be of assistance and are fair and reasonable in the circumstances
(i.e., not limited to the positions put forth by the parties).
Case law has held that it is unwise to give breakthrough first agreements, as this might have the effect of
dissuading parties from vigorous bargaining.
SETTLEMENT OF SUBSEQUENT AGREEMENTS
87.1(1) After strike or lockout, either party can ask the board to impose a contract, IF.
(a) at least 60 days have elapsed since the strike or lockout commenced;
(b) conciliation has been attempted for at least 30 days during the strike or lockout.
Board to determine if good faith bargaining
87.1(3) On receiving an application, the board shall inquire into negotiations between the parties and
determine (a) whether they are bargaining in good faith and (b) whether they are likely to conclude a
collective agreement within 30 days if they continue bargaining. Can appoint a mediator or conciliator.
87.3(1) If the board finds breach of DTBGF or bargaining unproductive,
(a) strike or lockout shall be terminated.;
(b) the employer shall reinstate the employees as provided for in subsection 87(5); and
the board or an arbitrator will impose a CA.
87.3(5) Imposed CA is effective for one year following the expiry date of the previous collective
agreement, or for any longer period the parties agree to.
IX. STRIKES AND LOCKOUTS
First contract strike/lockout only after freeze and extension
s. 89(1) Where a union is certified and no collective agreement has been concluded, a strike or lockout is
only permissible after the conclusion of the s. 10(2) statutory freeze and any extension that may be ordered
under s. 10(3). (Must also have a strike mandate, s. 93.)
s. 89(2) No strikes or lockouts are permissible while a collective agreement is in force.
Note that in Manitoba, there is no requirement for conciliation before a strike. As long as no collective
agreement is in effect, a strike is timely (e.g., 12:01 a.m. if agreement ends at 12:00).
s. 93(1) No strikes may be authorized by the union until a strike vote has been conducted and a majority of
employees in the unit, s. 93(2), are in favour of a strike.
s. 93(3) Every employee in the unit is entitled to reasonable notice of the strike vote and a reasonable
opportunity to cast a ballot. The vote is by secret ballot, s. 93(4).
A common tactic is for the union to get a strike mandate at a very early stage of negotiations, in order to
send a message to the employer. This mandate does not require the union to declare a strike immediately
(or at all), s. 93(6); it can wait for a strategic time before acting.
If a strike mandate is refused, there can always be another vote at a later date.
In practical terms, the only truly legitimate strike mandate is over 90%.
s. 1 Definitions
“Lockout” includes the closing of a workplace, the suspension of work, an employer’s refusal to employ a
number of employees, or a substantial alteration in the normal pattern of work, if done to compel the
employees to agree to terms or conditions of employment.
“Strike” includes a cessation of or refusal to work, or a refusal to continue the normal pattern of work, or
any slow-down or restriction of output, done by employees in concert or by common understanding for the
purpose of compelling the employer to agree to terms or conditions.
In other words, even a ―work-to-rule‖ would constitute a strike.
Note that s. 94 preserves the right of the employer to discontinue or suspend operations in whole or in part,
provided the subjective element of employee compulsion is not there.
Inco Ltd. v. U.W.S.A. (1978, Man. C.A.)
Employees withdrew their services for one day as a protest against federal wage controls.
Held, this still constituted a strike, since the employer was affected despite the real motive. The union was
responsible for the losses sustained by the employer that day.
M.E.A. (1979, S.C.C.)
Held, that the refusal by an employee to cross another union’s picket line in order to go to work constitutes
a strike, even if the collective agreement expressly confers this right on employees.
(2) STATUTORY SUPPORT FOR UNION SOLIDARITY
Refusal to perform work of striking unit
S. 15(1) If an employee refuses to perform work which would directly facilitate the business of another
struck employer within Canada, this refusal does not constitute a breach of the collective agreement and
will not give rise to any disciplinary action.
S. 15(2) The imposition of discipline in such a case is an ULP.
R.S.E.U. Local 832 v. Canada Safeway (1979, Man. Q.B.)
Cashier refused to charge customers for products made by Lucerne, which was on strike, so the employer
sent her home for failing to do her job.
Held, this was not disciplinary in nature; employer has the right to do this.
Employees can refuse to perform work of another bargaining unit which is on strike against a
Employers can send home employees who refuse to work for this reason, but not discipline.
Westfair Foods (1986, Manitoba)
Cashier refused to handle meat sent by a particular struck packer from out of province, so the employer sent
Held, this was not disciplinary. However, if the cashier had proven that there was other work which she
could have done without facilitating the business of the packer, the employer would have been obliged to
Employers are obliged to accommodate employees who refuse to perform work of those who are on
S. 15 It is an ULP to discipline an employee for refusing to do work that would ordinarily be done by a
lawfully striking employee, unless the employer proves that the discipline was in no way related to the
refusal to perform said work (i.e., a ―taint test‖).
Western Grocers (1992, Manitoba)
Truck loaders refuse to load trucks from Saskatchewan where co-workers on strike. Disciplined.
S. 15 only protects the refusal to do the work of striking employees within Manitoba—because the
board can’t be expected to determine what is a ―lawful‖ strike in another jurisdiction.
Westfair Foods (1996, Manitoba) (case saved in Labour file)
After employer voluntarily recognized one union in respect of employees at the Wholesale Club, the board
decided that the employees were already represented by another union, whose collective agreement had
recently terminated. In order to get around the s. 10(4) post-termination freeze on terms and conditions of
employment, the employer locked the employees out for one day and then invited them back at the old
terms and conditions.
Held, this was a lawful lockout, as s. 1 permits ―selective‖ lockouts and specifies no minimum duration.
Although the employer is entitled to continue to run its business during a strike or lockout, any such work
stoppage ends the s. 10(4) statutory freeze.
First contract legislation
Yarrow lodge v. Hospital Employees (1993) BCLRB:
Common tactics to destroy the union’s bargaining strength for a first contract include:
making the scheduling of negotiating meetings difficult,
arguing over the format of bargaining,
objecting to any and all collective agreement language,
putting forward proposals which it knows to be inflammatory,
speaking repeatedly in terms of "principle" or "prerogative", and
refusing to deal with any monetary issues until all the language in the collective agreement is
making it known that should the employees get rid of the union, they may in fact obtain the very
pay increases which they seek through collective bargaining
the employees in the bargaining unit become increasingly disenchanted at the union's lack of progress in
achieving a first collective agreement.
increase in the turnover of employees especially given the stress and conflict present in such situations,
new employees will most likely not favour the union.
undermine union to the point that decertification is successful.
First contract legislation intended to eliminate the incentive to campaign to destroy a newly-formed
The philosophical opposition to the imposition of first contract is framed in terms of the significant,
traditional values which we place on freedom to contract, free collective bargaining and the value of
"private ordering" or self-government.
Help to restore rational labour-management relations, possibility of an enduring relationship.
Only available after one or both of the parties have reached the point of being irrational – unable to back
down – because it will only be rational in the most exceptional and extreme situations to justify such a long
Remove incentive of sustained anti-union conduct.
First contract legislation – another area of imposed contracts -- has had a largely positive history, restoring
many previously unworkable relationships. Bargaining relationships now more commonly survive the
imposition of first contracts – and since the goal of the Act is to promote such relationships, this is a major
factor to consider.
The ―no fault‖ threshold should allow the Board to avoid protracted litigation.
The parties are free to amend the contract after one year.
It would be contrary to the act to protect the conduct of a party that seeks to deliberately frustrate the right
of another party to engage in free collective bargaining.
Therefore, an imposed first contract furthers basic values underlying free collective bargaining.
The parties have less of a commitment to an imposed contract.
The ―narcotic effect‖: less willingness to compromise, knowing that an imposed contract is available after
60 days. The pressure doesn’t build the longer the strike goes on, it lessens as the option draws nearer.
Avoidance of the full ―cathartic effect‖ of a strike/lockout – a positive element noted by the Woods Task
Force – leading ultimately to more realistic positions.
Loss of the ability to fully test the commitment of one party to its position. However, only the most
irrational parties would willingly participate in a strike lockout for 60 days, simply because they had the
option of an imposed agreement at that time.
It’s an ―out‖, or face-saving tactic, when one party is locked in an indefensible position and has a moral
obligation to back down.