Class Notes (838,406)
Canada (510,881)
JS380 (30)

Unfair Labour Practices during Organization.docx

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Justice Studies
Stefan Idziak

Unfair Labour Practices during Organization  the employer has an incetive to try and derail certification because unionization will cost money and cut into profits  labour legislation seeks to avoid this by prohbiting unfair labour practices  most commonly occur during organization, because this is the employers best chance to derail the union entirely  BC Labour Relations Code o 6(3) it is an unfair labour practice to discriminate or take action against organizing employees o 6(4) gives employers an addtional protection where employee status can be changed for proper cause or where reasonably necessary for the proper conduct of business  Board may order reinstatement or damages, or may immediately certify union  where a decision is motivated even in part by animus, this is an unfair labour practice o burden on employer to disprove animus Duchesnau v. Conseil de la Nation Huronne-Wendat [1999] CIRB No.1 (Canada Industrial Relations Board) Facts  P dismessed from long time employment  he says it is due to animus, the employer calims it is from workplace misconduct, amounting to fraud o but P was acquitted at a preliminary hearing of all criminal charges Analysis  code provides that workers have right to select bargaining agent  during organization drive, board is particularly careful to protect employee rights and will ensure no employer animus  even if there is a pretext to fire, anti-union animus, even if just incidental, that will be an unfair labour practice.  Employer bears burden of proof to rebut presumptino of anit-union animus.  Board to determine whether animus palyed any part at all in the dismissal.  On a BoP in this case, the board found that it unprobable that the P's union activities had nothing to do with the termination.  So while P's behavior questionable, the employer could not prove that it's dismissal was not provoked in part by anti-union animus Ratio:  during organization period, there is a presumption of anti-union animus that the employer must be able to rebut on a BoP  even if there is a pretext to fire and the animus plays only an incidental role, dismissal will still be an unfair labour practice.  discussion problem  shows that "proper cause" provision has some teeth  where you have a clear procedure applied in a non-discriminatory fashion, this may be enough to discharge the presumption of anti-union animus o basically where the termination occurs with acceptable procedural fairness, 5(4) may protect. Non-Motive Unfair Labour Practices  some statutes uclear as to whether motive plays a role  if not, the section may outlaw any employer action that has a chilling effect on a union.  BC 6(1) makes it unfair to interfere with the administration or formation of a trade union o does not explicitly require animus o because it is so broad, it has the potential to swallow up all the other labour provisions  typically what is required is that there be a finding of no anius, and then a balancing decision between the interests of the union and the business purposes Canadian Paperworkers Union v. International Wallcoverings, [1983] OLRB  Employer kept company going by using strike breakers  union learned about strikebreakers, confronted them  some members fired o some of these members assaulted scabs, damaged vehicle, etc o some were found not to have even been there at all. Analysis  ss. 66 and 70 prohbiti certain anti-union acts when there is animus  64 prohibits acts, but there is no express requirement of animus o if this is the case, how can 64 be interpreted such that it does not make ss. 66 and 70 obsolete?
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