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Lecture 15

lecture 15.docx

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Justice Studies
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Stefan Idziak

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Lecture 15: Substantive and Procedural Obligations Imposed by the Duty to Bargain  Clearly cannot propose terms that are illegal by statute  certain things can be put into dispute and bargained over, but an impasse can never lead to strike/lockout o typically matters determining the boundaries of the collective agreement relationship o like the size of the bargaining unit o or proposals to implement multi-employer bargaining where only single- employer bargaining exists.  Other than these exceptions, the parties are free to include most anythingn in the bargain, and press them to or beyond the point of impasse. o however, labour boards have put some restrictions on this freedom  Surface bargaining is not permited, while hard bargaining is. Surface Bargaining vs. Hard Bargaining  Hard bargaining is allowed, surface bargaining is not  surface o going through the motions with no intent to reach agreement  hard o parties may take firm intractable positions on things. United Steelworkers of America v. Radio Shack [1980] Can. LRBR Facts  the employer had a history of unfair labour practices  LRBR had found against the employer in the past  union served notice to bargain, and requested information on the names and statuses of the members of the bargaining units  employer set out letters ridiculing the union and promising that no employee would ever have to pay dues to work at radio shack  Employer had many very outre demands during negotiation  Then new bargainers arrived, and a lot of progress has made  New bargainers said that unless the union threatened to strike, no more progress would be made  during strike, employer behaved a bit fishy and sent letters to employees thanking those that had crossed the picketline. Analysis  Clearly some progress was made after the new bargaining agents arrived. o many outstanding issues were concluded. o seems consistent with a purported "change of hear" in management.  however, new bargainers had no actual authority to reach agreement- upper management retained this control, and refused to testify o this guy had a record of extreme animus and impropriety o plus thank-you letter and behavior during the strike did not demonstrate a "change of heart" at all.  no one from management came forward to discrebe change of hear or explain why the previous deep-seated animus "disappeared".  bargainers were pretty distant from management  union scepticism understandable given the history of labour relationship.  given the history of management's animus, they needed to justify why they had such extreme demands in order to show they weren't merely seeking to provoke a strike.  the fact that no one high-up was willing to testify seen as pretty damning.  a lot of employer suborness might be understandable in normal circumstances, but given history requires explanation.  The employer's sutbborness on union security, in light of past misdeeds, leads to the conclusion that it is motivated by animus.  "Where an employer has acted as the Respondent has and over so long a period of time, it may require a particularly courgaeous employee to [request that dues be deducted from pay check]. Therefore, when this same employer rigidly ties his position to voluntary recovable checkoff, his conduct is open to the interference that he is motivated" by animus.  Just because what the employer was offering met the statutory minimum does not mean it was not bargaining in bad faith. o when viewed in concert with anti-union actions, it may itself be efidence of bad faith.  Given the history, the employer's "hard bargaining" on these issues was more likely that nont aimed at avoiding a collective agreement and part of its desire to undermine the union.  This is "surface bargaining": going through the motions of bargaining without the intention of concluding a collective agreement o just a subtle but effective refusal to reconize the trade union . o must be disfferentiated from hard bargaining  individuals may stick to positions they know are not likely to reach agreement iout of self-interest  inference of surface bargaining requires looking at totality of evidence.  it is only when the conduct of the parties on the whole demonstrates that one side has no intention of concluding a collective agreement that a finding of surface bargaining can be made. Dissent  Basically thinks that the majority was wrong to be so sceptical about the "leapord changing its spots"  company was in genuine hard bargaining and had run to irreconcilable differences  new bargaining agents made a lot of progress gives evidence of bargaining in good faith Ratio  parties may bargain with positions they know are not likely to meet agreement, even where they can predict no agreement will be possible, if this is out of self-interest  however, where looking at the totality of evidence, if it is clear the stubborn position is intended to avoid an agreement, this is "surface bargaining" and an unfair labour practice  also look at the points of res
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