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Lecture 11

JS380 Lecture Notes - Lecture 11: Billable Hours, Professional Responsibility, Bargaining Unit


Department
Justice Studies
Course Code
JS380
Professor
Stefan Idziak
Lecture
11

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Lecture 11: First Contract Arbitration
If the parties cannot make an agreement following the first collective bargaining
period, most jursidctons will require arbitration
Jurisdictional differences include
o whether minister screens to see which cases will get arbitration
o whether the labour board may ulitmately impose a collective agreement.
o whether the terms of the agreement are to be decided by the board or by an
abitrator
o whether a finding of breach of the duty to bargain is a prereq of the process.
Manitoba allows the imposition of subsequent collective bargains where there has
been bad-faith bargaining or where it is unlikely a settlement will be reached.
Yarrow Lodge Ltd. et al v. Hospital Employees' Union et al. (1993) BCLRB
Analysis
Principles of First Contract Arbitration
o designed to address break down in negotiations resulting from the conduct of
one of the parties
not just an extension of unfair labour practices remedies
o actual bargaining should be encouraged to reach first collective bargain
o mediators should be assigned early into fist collective agreement disputes
o arbitration should preferably not be imposed at the end of the negotiation
process were the relationship has already been broken, but once the mediator
has found the "stumbling blocks" in the dispute and knows what needs to be
avoided
Factors to be considered in assessing whether first contract arbitration
o bad faith or surface bargaining
o conduct from the employer demonstrating a refusal to recognize the union
o party adopting an uncompromising position without justification
o party failing to make reasonable efforts to conclude agreement
o unrealistic demnads or expectations
o bitter/protracted disputes where settlement seems unlikely
o not an exhaustive list
Factors for the imposed agreement
o no breakthrough or innovative clauses, but not bound to be status quo or
industry standard either.
o arbitrators should use objective criteria
comparable terms and conditions paid to similar employees performing
similar work
o internal consistency and equity among employees
o employer financial state is a critical factor when made known to the
employer.
o economic and market conditions of the sector must be considered.
Jean Sexton, "First Contract Arbitration: A Canadian Invention" (1991)
Objectives of first contract abritration
o end the current dispute
o allow parties to get used to one another.
BC
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