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Lecture 9

LAW 529 Chapter Notes - Chapter 41-42: Labor Management Relations Act Of 1947, Bargaining Unit, National Labor Relations Act


Department
Law and Business
Course Code
LAW 529
Professor
Pnina Alon- Shenker
Lecture
9

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Chapter 41: Collective Bargaining and the Making of a Collective Agreement
Canadian collective bargaining model borrowed key concepts from American Wagner Act
o majoritarianism, exclusivity, and union certification
union and employer legally required to “bargain in good faith” in making collective agreement.
Decentralized, very local with one employer and one union
The Effects of Union Certification
certification is the beginning of the transition from common law to collective bargaining regime
union is now official, exclusive representative of employees in the bargaining unit
collective agreement in effect, common law that governs individual contracts no longer applies
a legal obligation imposed on both employer and union to bargain with each other when terms
are unfavorable instead of walking away or ignoring party
collective bargaining in creation of collective agreements is occurring without work stoppages
How collective Bargaining Works
Bargaining Structure: identity and number of parties involved in collective bargaining, and scope of
employees covered by that bargaining; “single employer–single union–single location” most common
bargaining takes places at the level of individual workplaces
can also be single employer, single union but multiple locations; most common in Canada
in public sector common to bargain collective agreements for various categories of workers
process begins when one party sends over the notice to bargain
Notice to Bargain: letter from union or employer to other party that formally begins the process of
collective bargaining; initiates the collective bargaining process (renewal 2 to 4 months before expiry)
Chief Negotiator: The lead spokesperson representing a party in negotiations; talks on behalf of party
Business/Staff Representative: employee of union, job is to negotiate, administer collective agreements
Local Union President: person who leads a sub-unit of a union (local union); may represent a single
workplace or group of workplaces within a defined geographical area or sector elected by union
members and are (or were) employees of unionized employer
union presents proposal first; common practice NOT rule
BARGAINING PROTOCOL-> what issues dealt with in what order
Monetary Issues: Subject in collective bargaining impose direct costs on employers; wage, benefit,
pensions
Non-Monetary Issues: Subjects in collective bargaining relate to contract language, such as text of a
grievance procedure or management rights clause
Ratification (Of A Collective Agreement): vote by unionized employees in favor of accepting a proposed
collective agreement; law requires collective agreement to be ratified by majority of bargaining unit

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pre-negotiation stage- list of outcomes and bottom
lines made, employees surveyed about issues they
want union to negotiate
negotiation stage- meeting to identify and reach
agreement on matters, zone agreements, can lead
to industrial conflict
settlement stage-write up the agreed upon collective agreement terms
Types of Legal Rules Regulating Collective
Bargaining
Statutory Freeze Provisions maintain prior
pattern of the employment relationship in its entirety
business as before test used- what was done before the statutory freeze
Rule found in collective bargaining legislation prohibits employer
from altering terms of employment
(1) Certification Freeze: without the union’s consent during processing
of an application for certification; lasts until labour board dismisses
union’s application bcus union’s organizing attempt failed OR union wins certifications and serves
employer with notice to bargain-> triggers the second freeze
(2) Collective Bargaining Freeze: without the union’s consent during the period of collective bargaining;
applies at each round of collective bargaining for as long as union represents workers
The Duty to Bargain in Good Faith and Make Reasonable Efforts to Conclude a Collective Agreement
Legal obligation to bargain in good faith and with reasonable efforts, objective and subjective
o is party making an honest attempt to reach a collective agreement?
o compares the party’s behavior to that of others in the industry.
veers from industry norm in a way that impedes conclusion of agreement=party
not making reasonable efforts to conclude collective agreement
rules applicable to process of CB (how CB takes place) and rules that regulate substance of CB
(what is proposed during collective bargaining)
1. The Procedural Duty to Bargain: The How of Collective Bargaining
duty to bargain is concerned with process of CB
rules intend to encourage parties to engage in rational and informed discussion about proposal
a. Duty to Meet and Be Prepared to Negotiate
“don’t waste the other party’s time” rule
basic requirement on parties to make themselves available to meet within a reasonable period
can send person to the table on behalf of party; must not just be sitting their taking notes
b. Duty to Provide Information and Respect the Union’s Role as the Employees’ Exclusive Representative

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employer must provide union with information it requires to perform its job as legal bargaining
representative of employees.
names, contact information, terms and conditions of employment of employees
failure to provide this information is a violation of the duty to
employer must also not attempt to undermine union in minds of employees
c. The Duty to Be Honest and to Disclose Plans That Will Affect Bargaining Unit Employees
The duty to bargain requires honesty
o Lying to other party is a violation of the duty to bargain
union would want to know about a possible closure
o bargain higher severance packages or right to vacant jobs at other locations
International Woodworkers of America Local 2-69 v. Consolidated Bathurst Packaging Ltd.> The Duty to
Disclose Information in Collective Bargaining
employer must answer union questions truthfully
employer must disclose on its own initiative decisions that have already been made and that
“will have a significant impact on terms of employment,” such as discontinuance of workplace
2. The Duty to Bargain and the Substance of Bargaining Proposals: The What of Collective Bargaining
a. Bargaining Illegal Terms
Neither party can propose an illegal term
o violate human right, occupational health and safety, or employment standard legislation
requires some terms be included in every collective agreement
o violation of duty to bargain for a party to refuse to include such terms
Mandatory Arbitration Clause requires all disputes arising under the collective agreement to be
referred to binding labour arbitration to be resolved
b. Terms That Can Be Proposed, but Not “Bargained to Impasse
parties who are unable to agree on a particular term must drop term from their proposals and
cannot use term as basis for a strike or lockout
occurs when proposed term in dispute holds up settlement -> status quo must prevail
c. Hard Bargaining Versus Surface Bargaining
key distinction in CB law between lawful hard bargaining and unlawful surface bargaining
Hard Bargaining: lawful strategy in CB involves a party using its superior bargaining power to insist upon
collective agreement terms that favor its own interests; anticipated
Surface Bargaining: involves a party going through motions of bargaining but having no intention of ever
concluding a collective agreement; violation of the duty to bargain in good faith
EX: proposal includes contract clauses that proposing party knows other side will never accept
usual remedy is to order party to go back to engage in lawful bargaining and to send a
statement to employees advising them of the unlawful conduct
Royal Oak Mines Inc. v. Canada (Labour Relations Board)-> Proposing Untenable Contract Terms
employer engaged in unlawful surface bargaining
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