IRE244H1 Lecture Notes - Lecture 5: Bargaining Unit, Strike Action, Card Check
10 Oct 2018
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IRE244 Lecture 5: Bargaining Under the ORLA
● ORLA Restrictions on the CA
○ Statutory Freeze
■ After a certification application has been filed, the employer cannot
unilaterally alter terms and conditions of employment.
■ Changes must be negotiated through a collective agreement
○ A Collective Agreement (CA) is a written contract that sets out the terms &
conditions of employment for union members in a bargaining unit.
○ Copy of the collective agreement must be provided to each member of the
bargaining unit.
○ The OLRA requires a minimum term of one year for the CA.
● No Strike Provision/ Arb Required
○ No strike provision
■ Strike or lockouts are not permitted during the term of the collective
agreement
○ Arbitration of grievances required
■ Disputes during the collective agreement must be referred to binding
arbitration.
■ Collective agreements are deemed to contain arb provision if one is not
negotiated
● Strike Definition in ORLA
○ In ORLA the definition of a strike includes:
■ “a cessation of work, a refusal to work or to continue to work by
employees in combination or in concert or in accordance with a common
understanding,
■ or a slow-down or other concerted activity on the part of employees
designed to restrict or limit output;”
● What’s a Strike?
○ E.g., Police are prohibited from striking
■ An outbreak of the “blue flu” during negotiations
● All of a sudden a lot of employees are calling in sick saying they
got the flu
■ If it was coordinated or encouraged by the union then this could be
considered a strike
○ E.g., Wearing non-regulation clothing (e.g. baseball caps)
■ It may be going against employer policy but if it’s not actually slowing
them down on the job then it’s not concerted activity
■ Not a strike
○ E.G., Police stops responding to small issues (e.g., minor traffic infractions)
■ Slowing work down, police not doing their full job
■ Considered a strike
● Enforcement: Fines Under ORLA
○ Maximum fines for contravening any provision of the ORLA(including an illegal
strike or lockout):
■ Up to $2000 per day of strike or lockout for employees or managers
● Jan 2018: Bill 48: $8500/day
■ Up to $25000 per day for unions or organizations
● Bill 48: $100,000/day
■ Illegal (i.e. “wildcat”) strikes are a very small component of overall strike
activity
● Duty of Fair Representation
○ Principle of Majority Rule
■ Once majority support is gained, union becomes the exclusive bargaining
agent on behalf of all employees in the bargaining unit
○ Union has Duty of Fair Representation for all employees in the bargaining unit
(both union members and non-members)
■ Union must represent ,embers in a manner that is not “arbitrary,
discriminatory, or in bad faith”
● Duty to Bargain in Good Faith
○ Duty to Bargain in Good Faith
■ Requires parties to make “every reasonable effort” to conclude a
collective agreement
■ Cannot refuse to meet with the other party
■ Boulwarism prohibited
● Cannot take a position and refuse to budge (even if it’s a
“reasonable” position)
● “Take it or leave it” deal
■ Surface bargaining is prohibited
● Doing things that is avoiding conclusion of collective agreement
● Ex: not showing up to bargaining table, or saying you need a
response in an unreasonable time limit, or stall too long of a time
saying you can’t meet with the person for a long time
■ Hard bargaining is permitted
● Ex: taking your position and make demands that the other party
finds unappealing
■ If you can establish a reputation of the “take it or leave it” deal then you
will have a strong position
● Problem is long strikes, since employer is saying no matter how
many strikes the employees organize they won’t budge, another
problem is that union can take the same technique
● Compulsory Conciliation
○ Parties must meet with a Conciliation Officer before a strike can take place
○ If an agreement is not reached, Minister has the options of:
■ Either appointing a tri-partite Conciliation Board,
■ Or issuing a No-Board Report
○ Cooling off period; strike or lockout not permitted until 14 days after a No-Board
Report is issued
■ Rationale is that maybe people go on strike because they’re upset or
angry, but if there’s time for them to cool down they’ll become reasonable
and not strike
■ May be heating-up period?
● Allows employer to ship out product and build up inventory before
strike, strikers may rally up employees for the strike, basically
giving both parties time to prepare for strike
○ Criticism is that forcing people to go through this isn't going to be effective,
should happen voluntarily, like marriage counseling if every couple thinking about
divorce was forced to go through marriage counseling even if they don’t want to
● Bill 40 “Anti-Scab” provision
○ Bill 40 (NDP legislation) permitted picketing on quasi-public property
○ Bill 40 also prohibited the use of replacement workers (known as “scabs” in the
labor movement) during a strike
■ Called scabs if you’re an employee and aren't striking, very derogatory
■ Attempted to stimulate a “classic” strike situation (i.e. workplace closed
down during strike)
○ Very controversial and symbolically important
○ guaranteed right to return to their jobs for 6 months
■ Not very practical for employees to hire workers with high level skills for
unknown time because they don’t know how long the strike will last for
● Really sour the labor relations point, union will be really upset,
horrible labor climate
○ Little empirical impact because very few employers used replacement workers
○ Bad for both sides, no productivity in the workplace, etc.
○ Repealed by Bill 7 Companies are allowed to hire replacement workers during
strike
○ Strikers guaranteed right to return to their jobs for 6 months
■ Bill 148 eliminated this
● Strike and Ratifications Votes
○ Strikes not legal unless approved in a secret ballot strike vote (taken more than
30 days before CA expires, or after expiry)
■ Often what happens is that quite early in negotiations, union will take
strike vote, and there is a high vote yes for striking because people aren’t
really sure if they’re going to strike or not, it’ll just give them some
leverage
○ Collective Agreement does not become effective unless approved by more than
50% of employees voting in ratification vote to ratify the agreement
● Union Security: Definition
○ Union security
■ A clause that requires bargaining unit employees to join the union and/or
to pay union dues.
■ Relates to the financial security of the union and union discipline of
employees.
Document Summary
After a certification application has been filed, the employer cannot unilaterally alter terms and conditions of employment. Changes must be negotiated through a collective agreement. A collective agreement (ca) is a written contract that sets out the terms & conditions of employment for union members in a bargaining unit. Copy of the collective agreement must be provided to each member of the bargaining unit. The olra requires a minimum term of one year for the ca. Strike or lockouts are not permitted during the term of the collective agreement. Disputes during the collective agreement must be referred to binding arbitration. Collective agreements are deemed to contain arb provision if one is not negotiated. In orla the definition of a strike includes: A cessation of work, a refusal to work or to continue to work by employees in combination or in concert or in accordance with a common understanding,
