Unit 4 - Lesson Objectives

Question 1

What is the importance of PC 1003?

Answer 1

Granted workers collective bargaining rights including protection from anti union discrimination by employers and a limited protected right to strike, an imposed on employers a legal duty to bargain with unions representing a majority of workers

Question 2

What were PC 1003 key provisions?

Answer 2

Gave workers the right to join a union, the right to collective bargaining, the right to strike and lockout, and the right to picket in support of a strike.

Question 3

What are the characteristics of an average unionized worker?

Answer 3

the average union worker is female, works in the private sector, is aged 45 -54, works full time, and works in a workplace that have over 500 employees

Question 4

How has the state’s relationship to unions and unionized workers evolved over time?

Answer 4

Unions were once rejected by the government. The shift in government attitudes toward unions shifted over time, due in large part to the protests and advocacy of working men and women demanding their right to have a union.

The tensions between the state and working people has not ebbed over the decades. Despite the system’s stability, there is an ongoing struggle between those who wish to see stronger unions and those who wish to diminish the unions’ role. The state, too, struggles with its own tendencies to dampen union activity through their own direct interventions.

Question 5

What effects do unions have on business?

Answer 5

It has been found that the productivity benefits of unions do not match the added costs of a unionized workplace. In the studies on employment it has been found the employment grew in unionized workplaces an unionized workplace. Innovation in the workplace has been found to be restricted in a unionized workplace. Countries with strong union presence have a high level of civic engagement and more extensive social programs

Question 6

What is the duty of fair representation?

Answer 6

A legal obligation imposed on unions to represent employees who fall within the scope of their representation rights in a manner that is not arbitrary, discriminatory, or in bad faith

Question 7

How does the duty of fair representation affect union action?

Answer 7

Arbitariness - unions must turn their attention to the issues involved, investigate them, and make reasonable decisions based on their investigation.

Discrimination - unions must not violate human rights statues, such as by discriminating on the basis of the prohibited grounds found in those statues, or make decisions based on personal favouritism or biases.

Bad faith - unions must not make decision based on personal animosity, revenge, pettiness or dishonesty

Question 8

What happens when a union is decertified?

Answer 8

The union ceases to represent the employees. Any collective agreement that was in effect ceases to operate and the employees are thrusted back into the common law regime.
The employees and the employers can return to a situation akin to anew common law hiring, so that the employment terms can be re-bargained. However this is unworkable in practice as work must continue seamlessly and there would not be time for new bargaining between the employer and each employee
Employer and employees also have the option of carrying over the terms of the collective agreement and making them implied terms

Question 9

What are the legal questions asked by labour boards before granting a certification? Why do they ask these questions?

Answer 9

1. Has a trade union filed the application? Most Canadian collect bargaining statues permit only trade unions to apply for certification
2. Is the application “timely”? If the employer is not unionized any union can apply. However, there may be restrictions on a union that had previously filed a unsuccessful application relating to the same/similar group of employees. If the employer is unionized, then is the union raid taking place during an open period?
3. Who is an employee for the purpose of union certification applications? To determine bargaining unit size

Question 10

What are the pillars of the Canadian collective bargaining model?

Answer 10

Majoritarianism and exclusivity

Majoritarianism - a prinicple of the Wagner modle, it asserts that a union must secure the support of a majority of the employees to win the right to act as their representantive

Exclusivity - a prinicple of the Wagner modle, it asserts that the union choosen to represent workers becomes the sole or exclusive legal representative for that group of workers

Question 11

What are the legal steps and considerations in the certification process?

Answer 11

Trade union status
Timeliness of certification application
Required employee status

Question 12

Trade union status

Answer 12

Most Canadian collective bargaining statutes premit only trade unions to apply for ceritifcations so this is the fist thing that a labour relations board will check

Question 13

Timeliness of certification application

Answer 13

Restrictions exist on when a union can apply for certification, so labour relations boards must next ensure that the application is “timely”. These restrictions break down generally as follows:

1. If the employer is not unionized then any union can apply to represent its employees at any time.
2. If the employer is unionized, then an epplication for certifcation by another union to respresent the unionized employees can only be filed during an open period defined in collective bargaining legislation

Question 14

Required employee support for the Union and Collective bargaining

Answer 14

1. Who is an employee for the purpose of union certification application
2. Who is employer
3. Defining the appropriate bargaining unit
4. Measuring employee support for collective bargaining: the card-check model and the mandatory certification vote model

Question 15

What is an unfair labour practice?

Answer 15

Unfair labour practice - an action undertake by someone acting on behalf of either a union or employer, or on their own behalf, that violates one or more provisions in the collective bargaining legislation

Question 16

What kinds of actions would be considered unfair labour practice?

Answer 16

1. Intimidation and coercion prohibition - it prohibited employers from punishing workers who join or support employee associations, either by refusing to employ them or by imposing conditions in their contracts that seek to restain employee from exercising any rights protected by the legislation
2. Interference and domination prohibition - it prohibited employers from providing “financial or other support” to an employee association, and from dominating or interfering with the formation or administration of employee associations

Question 17

How does the law regulate the collective bargaining process?

Answer 17

There are three types of legal rules that govern the collective bargaining process

1. Statutory freeze provisions (employers cannot alter any terms of employment)
2. The duty to bargain in good faith
3. Make reasonable effort to conclude a collective agreement

Question 18

How do a strike and lockout differ in the law?

Answer 18

Strike - legislation can assign a particular definition to the word strike. In Canada, strikes are usually defined to include both (1) a collective refusal by employees to preform work, and (2) a deliberate collective slowdown by workers that is designed to restrict the output of an employer (commonly known as a work to rule)

Lockout - a tactic where by an employer refuses to premit employees to report to work and to pay the employees in order to apply pressure on the employees and their union in collective bargaining

Question 19

What are the preconditions to a legal strike?

Answer 19

The workers are unionized
No collective agreement covering the striking employees is in effect
The union and employer have engaged in collective bargaining with the intention of reaching a newcollective agreement, but failed to reach an agreement
The union has conducted a strike vote, and a majority of bargaining unit employees’ ballots support a strike

Question 20

What are the preconditions to a legal lockout?

Answer 20

The moment workers can strike, an employer can lock out. That is when there is no collective agreement the is covering the employer and the effected employees

Question 21

What are the different ways jurisdictions handle replacement workers and picketing?

Answer 21

Everywhere but BC and QC employers can hire replacement workers to fill the jobs or striking or locked out workers.
With picketing workers hope to persude those doing business with and workingfor the employers to change their minds.

Question 22

What is interest arbitration?

Answer 22

Interest arbitration is a mechanism used to resolve disputes in the collective bargaining process. In binding interest arbitration, disputing parties agree in advance to accept the terms of a deal as decided by a neutral third party

Question 23

What are the ways the parties may end up in interest arbitration?

Answer 23

Interest arbitration route is available in four situations:

1. Voluntary interest arbitration
2. Bargaining despites involving public sector workers are referred to mandatory interest arbitration
3. Interest arbitration as a result of back-to-work legislation
4. Interest arbitration as a result of first contract arbitration

Question 24

Voluntary interest arbitration

Answer 24

A procedure in which a union and employer agree to refer outstanding collective bargaining issues to an interest arbitrator to resolve

Question 25

Mandatory interest arbitration

Answer 25

Statutorily required interest arbiration to resolve collective bargaining impasses. Replaces the right to strike and lockout

Question 26

Back-to-work legislation

Answer 26

A statute enacted for the specfic purpose of bringing an end to a lawful work stoppage by referring outstanding bargaining issues to an interest arbitrator for final resolution

Question 27

First contract arbitration

Answer 27

A statutory provision that refers a collective bargaining impasse during negotiations for a first collect agreement to interest arbitration. Conditions for accessing first contract arbitration vary by jurisdiction

Question 28

Which collective agreement terms are mandatory?

Answer 28

Union recognition clause
No strike or lockout clause
Mandatory arbitration clause
Madatory union security clause (only in Manitoba)
Madatory just cause for discipline or dismissal clause (only in British Columbia and Manitoba)

Question 29

Which collective agreement terms are implied?

Answer 29

Employment standards (i.e. minimum wage)

Question 30

Which collective agreement terms are prohibited?

Answer 30

Terms that violate statutes, such as human rights, employment standards, or criminal statues

Question 31

What is the significance of reserved management rights?

Answer 31

Reserved (or residual) management rights, which stipulates that the employer maintains sole discretion over any matter not explicitly addressed in the collective agreement. This gives strong incentive for unions to ensure that all potential matters of interest are included in the agreement.

Question 32

How has the scope of labour arbitration expanded in recent years?

Answer 32

The Weber decision: labour arbitrator’s authority to enforce the common law and the charter
The Parry Sound decision: Labour arbitrator’s authority to apply employment-related statutes

Question 33

The Weber decision: labour arbitrator’s authority to enforce the common law and the charter

Answer 33

The Weber v. Ontario Hydro (1995) decision stands for the following preoposition: in any dispute that can be said to arise directly or “inferentiall” from a collective agreement, unionized employees, unions, and employers have forfeited their rights to sue in the common law courts for torts or bring Charter challenges before the courts, and have agreed to be bound by the grievance and labour arbitration process

Question 34

The Parry Sound decision: Labour arbitrator’s authority to apply employment-related statutes

Answer 34

The Parry Sound (District) Social Services Admin Board v. O.P.S.E.U., Local 324 (2003) decision indicated that employment-related statutes are incorported into collective agreements, and therefore arbitrators can enforce those statutes in arbitration involving unionized employees covered by a collective agreement

Question 35

What is just cause?

Answer 35

A term in a collective agreement between a union and an employer that requires that the employer demonstrate “just cause” ir a good business reason, to discipline or dismiss an employee

Question 36

How does just cause differ from common law?

Answer 36

A just cause provision is one of the most important benefits unions negotiate, and it fundamentally transforms the legal treatment of disicpline and dismissal that exists in the common law regime. It means that in union settings, the employer must have a reason to act in disciplining an employee and the reason must be just and fair. Other jurisdictions not require just cause provisions, but unions and employers nevertheless almost always agree to include them in collective agreement

Question 37

What are essential services?

Answer 37

Services that are essential to protect the health, safety, or security of the public. For example, police officers, firefighters, and medical practitioners perform essential services. Some governments consider services that are important to the public, such as public transit or mail delivery, as essential services.

Question 38

What are the limits to strikes and picketing in the public sector?

Answer 38

There are three models for dealing with strikes in essential services:

1. The “no strike” model, where strikes and lockouts are illegal
2. The “unfrettered strike” model, where the standard strike/lockout regime appears
3. The “designation” model, where strikes are permitted but certain workers or positions are designated as essential to ensure that enough workers remain at work during a strike to ensure that essential services are continured

Picketing is more restrictive during public sector strikes that it is in private sector strikes. Public sector strikes may not impede or restrict access to essential services.

Question 39

What topics cannot be bargained in the public sector?

Answer 39

Pensions
Appointments (including seniority)
Job classification
Assignment of duties
Layoffs

Question 40

What are the principles an arbitrator must consider in public sector arbitrations?

Answer 40

1. The replication principle
2. The conservatism principle
3. The necessity principle
4. The comparability principle
5. The ability to pay principle