Lecture 15: Substantive and Procedural Obligations Imposed by the Duty to
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
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
o going through the motions with no intent to reach agreement
o parties may take firm intractable positions on things.
United Steelworkers of America v. Radio Shack  Can. LRBR
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.
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
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.
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
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
also look at the points of res