Alteration of Working Conditions: The Statutory Freeze
no unlitaral changes to the wokring conditinos during the certication and bargaining
PRe-certification freeze begins when certificate is filed, and ends when application
dismissed or certificate issued.
then bargaining freeze kicks in and substists until there is a legal strike/lockout
Point is to avoid employers from undermining union
o this means even bona fide business decisions may be illegal during the freeze
o even doing things that are in the favour of workers may lead to an unfair
don't want bribes or punishments.
Canadian Imperial Bank of Commerce
o during freeze period, Bank gave raise to all non-organizing branches but not
branch that was organizing.
o Board applied "busniess as before" test and found an unfair business
o shcheduled pay raises must continue as before
BC allows some changes in conditions
o employer can apply to board to have conditions of employment changed,
even during the freeze
o board may allow these changes if "business as usual" and "business as
perhaps based on resaonable expectations of parties?
Simpsons Limited v. Canadian Union of Brewery, Flour... (1985) N.S. LRBR
Employer department store, in some difficulty.
union recently certified. Just prior to notice to bargain, employer made big lay offs
across the workforce, including in certified unit.
o some of the work that was laid off was replaced by contractors.
Board accepted that the layoffs were done without anti-union animus.
But bargaining freeze meant "business as before" was supposed to keep going
o this is a hard test though.
Typcially first time events are rejected by the board
o however, sometimes layoffs are ok during the freeze, even where that was
the first instance of lay offs.
Goes to reasonable expectations model instead
o what would a reasonable employee expect to constitute his or her privileges
in the specific circumstances of that employer?
o it may be reasonable for employees to expect an employer to respond to a
sginficant downturn in buseiness with layoffs, even if this is the first round of
o of course, severity and extent of layoffs must be proportionate to the severity
of the economic circumstances.
o Must be an absence of animus.
So layoffs ok
but would a reasonable employee expect a downturn to be met with layoffs, then
have those layoffs replaced with contract workers?
o during the freeze, the employers abliity to contract out is limited. Ultimately the board found that the lay offs were ok, but that the contracting out was
not, because "the introduction of a new means to continue to have the work
performed" aws outside the employees' reasonable expectations?
Ontario Public Service Employees Union v. Royal Ottawa Care Group
Hospital reduced benefits during bargaining freeze.
hospital says it was acting in response to serious budgetary pressures.
o reducing savings without impairing other benefits or patient care.
freeze captures bonafide actions that may nonetheless undermine organization.
aim is to facilitate bargaining, not protect employees from persecution
"business as usual" model is flawed, since obviously when unionization occurs, the
business must change.
o indeed, if business continue to act unilaterally as it did before, it would violate
reasonable expectation not much help, since no easy way to determine how
reasonable employee expectations may be ascertained.
o besides, given the organizing employees should reasonably expect that these
kinds of decisions will be the product of bargaining.
Board moves to a third approach, that reads the freeze provisions in light of the need
to bolster the bargaining process, reinforce the status of the unioin as bargaining
agent, and provide a firm (if temporary) starting point for the collective bargain
National Labor Relations Board v. Exchange Parts Co., (1964), USA USA USA
basically boils down to changes that benefit the employees are also not allowed.
"Danger of a fist inside the velvet glove".
employees will assume that what can be given can be taken away...
new benefits are also inappropriate during the statutory freeze.
Unionization and Wal-Mart in Canada
Plourde v. Wal-Mart Canada Corp.  SCC
D closed its store during negotiations with union over a first collective geement
P argued that when Wal-Mart closed the store and he lost his job, this should be
understood as dismisal motivated by anti-union animus
trbinual and lower courts said that Wal-Mart had permanently closed the store, so it
doesn't matter what the motivations were
o can't order reinstatement, and can't order Wal-Mart to reopen the store
SCC rule 6:3 in favour of Wal_mart
o Binnie said that 15-17, which deal with dismissal for union activity, could not
apply where the employer had p