Lecture 14: Components of the Duty to Bargain in Good Faith
Subjectiv erequirement to bargainin good faith
objective requirement to make reasonable efforts to come to an agreement
normally as long as you are acting in good faith, you are on solid ground
but Royal Oaks looks at the objective component
o what exactly does it mean to make "reasonable efforts"?
reasonable efforts requires us to look at comparable standards and practices in the
o is the employer totally out of step with the rest of the industry?
where the employer's position is totally out of step and totaly intractable, this can be
a violation of the duty to bargain in good faith.
Royal Oak Mines v. Canada (LRB)  SCC
Arises after long intractable and very violent strike.
o employer brought in scabs, which continues to be legal in NWT
Union member blew up a mine car, killing some scabs
BOard found violation of good faith in several areas
o most particularly in employer's refusal to bargain unless the union dropped
the issue of reinstatement and dsicipline of several employees accused of
BOard order that the employer put back on the table a tentative agreement it had
pur forwadr years earlier, which the union had then rejected, with the exception of
four issues on which the employer had changed its position.
o parties would be given 30 days to reach agreement, after whcih point binding
Analsyis (Cory J.)
Parties must bargain in good faith and take all reasonable steps to enter into a
o good faith subjective standard
o resonable efforts objective standard
ascertainable by looking to comparable stadnards and practices with
the particular industry
so making proposals or taking stances that the other party would never agree to
cannot be every reasonable effort
o since reasonable effort objetive, Board must look to the industry to see
whether other employers have refused similar claues
o if it is common knowledge that resual to accept a clause would be unaccetable
to any union, that clinging to that position is not bargaining in good faith.
Certain highly egregious stances will allow a rasonable inference that the party is not
taking a real effort to meet agreement.
o refusal of basic standard terms.
so refusla to even talk about terms that are standard in other members of the
industry may lead to the board finding the employer is not making every reasonable
effort to reach an agreement.
here, union involvment in dismissal is such a term, and refusal to discuss it is
evidence that the employer is not taking all reasonable steps. Since board correctly found employer not bargaining in good faith, and SoR patently
unreasonable, the Board's finidng should