Unionized Workplaces PDF

Unionized Workplaces 3 LEARNING OUTCOMES After completing this chapter, you will be able to: Understand the main differences between a unionized and non-unionized workplace. Describ...

Unionized Workplaces 3 LEARNING OUTCOMES After completing this chapter, you will be able to: Understand the main differences between a unionized and non-unionized workplace. Describe the evolution of labour law in Canada. Explain the process for certifying or decertifying a union. Understand the concept of exclusivity and explain its relevance to the system of labour relations in Canada. Describe activities that constitute unfair labour practices for unions and employers. Describe the contents of a typical collective agreement. Describe a typical grievance process, and understand the difference between grievance arbitration and interest arbitration. Understand the steps involved in calling a lawful strike or lockout and the ways in which legislation and the common law regulate activity during strikes and lockouts. Understand the evolution in Charter case law involving union membership, collective bargaining, and strikes. 55 56  Part I The Legal Framework Introduction individual employment This book outlines the law governing contracts of individual employment—that is, con- contracts negotiated between tracts negotiated between an employer and each employee individually, without the involve- an employer and each em- ment of an association or a regulatory agency. Of course, in the majority of non-unionized ployee individually, without jobs, there isn’t much negotiation between the employer and the employee. The employee the involvement of an asso- applies for a job and takes it as is—with the terms of work, including pay, set by the em- ciation or regulatory agency ployer. While competitive labour markets temporarily give some additional bargaining power to employees, the balance of power generally rests with the employer. The reality is that there is an imbalance of power, as well as information, between employ- ers and individual employees, which can lead to unreasonable terms of work in some cases. That is why Canadian law sets minimum standards for terms of work (Chapter 6), protects privacy (Chapter 10), and regulates workplace safety (Chapters 8 and 9). This imbalance has also prompted courts to find certain “implied terms” in all contracts of employment, such as the duty of fidelity; the duty of fair treatment; the requirement for reasonable notice in the event of a without-cause dismissal (Chapter 14); and other terms, such as a presump- tion against “restraint of trade” clauses (Chapter 15; and see generally Chapters 2 and 5). Before most of these legislative and common law protections emerged, however, there was another movement that sought to rebalance the relationship between employers and employees. The labour movement that emerged before the Industrial Revolution (Webb & Webb, 1920) eventually established the right of workers to organize themselves into unions and to have the unions represent them at the negotiating table. The result was a more bal- anced negotiating position on the basis of a contract that represented the collective workers for a particular industry or workplace. Without a “collective agreement” in place for all its workers, an employer with a legally unionized workforce could not operate. The ability of unions to negotiate employment terms that provide greater pay, job se- curity, protections, and benefits to employees has raised employment standards generally through the regulations that governments began to adopt in the 20th century. But this abil- ity was hard-won, facing initial resistance from courts and legislatures. This chapter provides a fairly broad overview of labour law in British Columbia (BC) and Alberta, though it does illustrate the main principles with some of the specific rules in legisla- tion and case law. The chapter has five sections. The first is on the history of collective bargain- ing law in Canada (which we will call “labour law”). The second looks at the establishment of a union in a particular workplace and the bargaining of a new union’s first collective agreement. Next is an overview of collective agreements: their role in a unionized workplace, some man- datory and common terms in them, and the grievance arbitration procedure for interpreting and enforcing them. The fourth section reviews the use of strikes and lockouts, the ultimate form of economic pressure. The chapter concludes with a consideration of the role of the Canadian Charter of Rights and Freedoms (the Charter), including several recent decisions that have considerably strengthened constitutional protection of unions. Also within this chapter (along with Chapter 7 on human rights), we take a brief look at the debate over vac- cine mandates and mask requirements that were imposed during the COVID-19 pandemic. Chapter 4 complements the following discussion of provincial labour law by outlining the labour law regime for federally regulated employers under the Canada Labour Code. Many of the principles in the federal statute are the same as those in BC and Alberta.  Chapter 3 Unionized Workplaces   57 ­ eaders who would like a briefer overview of collective bargaining law in Canada can there- R fore read the “Canada Labour Code: Part I—Industrial Relations” section of Chapter 4. History and Premises of Labour Law The modern labour law regime in Canada did not emerge until the years immediately after the Second World War, and certain fundamental principles were still being established as recently as the 1970s. The history of labour law before the 1940s in England and Canada was one of initial hostility toward unions; followed by begrudging acceptance of the right to unionize; and finally, in the second half of the 20th century, protection and empowerment of unions. One labour law scholar has identified three fundamental features of labour law in Canada: 1. The ability of individual employees to join together and form a union. 2. The ability of the union to force the employer to bargain with it, and not with individuals. 3. The ability of the union to resort to economic sanctions (chiefly, the withdrawal of labour through the exercise of the right to strike) to support bargaining demands (Rayner, 2007, at 2). Until the post – Second World War era, Canadian law did not support the second of these features—which we will call “exclusive bargaining power.” Since the union was not the exclusive bargaining agent for the employees it represented, the third feature, the “right to strike,” was a much weaker bargaining tool. An employer could permanently hire other workers to replace those on strike. Despite limitations on the bargaining power of unions before the Second World War, they were able to establish milestones in improvements to wages, hours of work, and work- place safety. These milestones began to set a template for early versions of employment standards legislation and thus influenced the development of individual employment law. By the 1920s, collective bargaining gradually established the 8-hour workday and 48-hour workweek—though it was not until the 1940s that provinces began to adopt this standard in legislation for non-union workers. The late 1940s and early 1950s also began to see legis- lated standards for holidays and vacation pay, both of which had been a feature of collective agreements for decades. Collective agreements also helped to spur minimum-wage laws. Unions were at first reluctant to see legislated minimum wages for a number of reasons, including the fear that these would reduce the importance of having a union. Nonetheless, such laws began to emerge before 1920 (Doorey, 2020, at 282). The Wagner Act Model of Labour Law In the 1930s, the US government passed a statute known as the Wagner Act that estab- lished a certification process enabling unions to exclusively represent employees in a defined unit and regulating the right to strike. Canada adopted this model in 1944, when Prime Minister William Lyon Mackenzie King used the War Measures Act to assert federal juris- diction over labour, enacting order in council PC 1003. The principles established in PC 1003 became part of the Industrial Relations and Disputes Investigation Act in 1948, which 58  Part I The Legal Framework eventually became the Canada Labour Code in 1967. Provinces soon followed with their own legislation. Following is a list of the chief components of the Wagner Act model, as adopted by Canada in the 1940s and 1950s. Despite some variations from province to province, these principles continue to inform the statutes that each province has enacted: 1. The right of employees to join or form a union. 2. The process for certification of unions—and the duty of employers to bargain only with the union once it is certified (“exclusivity”). 3. The establishment of the collective agreement as an enforceable contract that con- tains mechanisms to resolve disputes over the interpretation or application of the agreement without resorting to work stoppage. 4. The regulation of strike activity, including a prohibition against work stoppages dur- ing the term of a negotiated collective agreement. 5. The duty for both the union and employer to bargain in good faith. 6. The prohibition of “unfair labour practices.” 7. The establishment of an administrative body (Labour Relations Board) to enforce labour relations codes. The Wagner Act model considerably strengthened the position of unions and unionized workers in Canada, but it also involved trade-offs. The most significant gain for unions was the certification process, which grants unions the right to be the exclusive bargaining agent representing workers in a defined bargaining unit. The Wagner Act model also gave workers the right to strike without endangering their jobs. Employers are required to allow all striking employees to return to their jobs at the end of the strike. Whereas the previous regime merely legalized strikes (i.e., overrode the common law rules that made striking a tort and a crime), the new law created a special rule for unionized labour: they could go on strike without being treated as if they had quit. The Wagner Act model truly set labour law apart from the law of the individual contract of employment. The trade-offs for the right to strike included mandatory conciliation before a strike or lockout could occur, the requirement of a strike vote by the workers, and a prohibition on strikes during the term of the collective agreement (known as the “peace obligation”). The second and third of these two restrictions make “wildcat strikes” illegal. Workers cannot simply walk off the job en masse in response to an act by the employer. Furthermore, there is a statutory “freeze” on the terms and conditions of employment during the period of conciliation. (Note: As discussed below, BC has dispensed with the conciliation process, replacing it with the option for the employer or union to request mediation.) Establishing a Union This section sets out the basic principles for establishing a union in a workplace that has not unfair labour practice yet had one and for the negotiation of the first collective agreement. It also defines the most an allegation that the em- common types of unions and explains the concept of an unfair labour practice, which is ployer or union has engaged the basis for most labour relations board decisions. It is a high-level overview, so we will not in behaviour that is prohibited explore the provincial legislation in depth. However, since this is a heavily regulated area by the Labour Relations Code of law, and since some readers may wish to look at the rules more closely, we have included  Chapter 3 Unionized Workplaces   59 references to some of the relevant sections of the Labour Relations Code in BC and Alberta (abbreviated as LRC or as the BC Code and Alberta Code). Phases of Establishing a Union The establishment of a union may be seen as having three phases: 1. Organizing phase. In this phase, employees begin talking among themselves about unionizing their workplace, or representatives from an existing union start to talk with workers about unionizing. There is no defined timeline for this phase, except that it ends when the employees or union apply for certification. Even during the organizing phase, before a union is in place, there are rules governing the behaviour of employers, employees, and unions. 2. Certification phase. This phase runs from the date of a union’s application for certifi- cation to the date the Labour Relations Board (LRB) decides whether or not to certify Labour Relations the union. This is normally the shortest phase, with fairly well-defined timelines. Board (LRB) 3. Collective bargaining phase. Collective bargaining occurs from the date a union the government agency or employer gives notice to commence bargaining until the date an agreement responsible for interpreting, is achieved (or until decertification of the union, in the event the union fails to applying, and enforcing prov- achieve an agreement and either the employees apply to decertify, the union simply incial labour relations codes; LRBs oversee certification ceases to exist, or another union tries to take it over). and decertification processes and act as tribunals hearing Terminology and Types of Unions disputes over unfair labour Labour Relations Board. The LRB is the government agency responsible for interpret- practices, strikes, lockouts, ing, applying, and enforcing provincial LRCs. LRBs oversee certification and decerti- and any other matters related fication processes and act as tribunals hearing disputes over unfair labour practices, to the Labour Relations Code strikes and lockouts, and any other matters related to the LRC. It is important to note that LRBs do not normally make decisions about the content of collective agree- ments. That is left to the parties to negotiate, and specially trained arbitrators typ- ically adjudicate those disputes. Rather, the LRB is responsible for ensuring fairness in certification, bargaining, strikes, and lockout processes. Bargaining unit. A bargaining unit is the group of employees for which the union bargaining unit negotiates a collective agreement. All employees who work in this “unit” are bound the group of employees for by the collective agreement, as is the employer. Being an employee within a bargain- which the union negotiates ing unit does not make an employee a union member. Managerial employees are a collective agreement generally excluded from bargaining units to prevent the employer from interfering with a union’s internal activities. Membership. As noted above, being an employee in the unit for which the union has exclusive bargaining rights does not automatically make a person a union member. Nor- union member mally, employees will sign a card and pay a small membership fee to join. If an employee a person admitted to member- has a fundamental objection to being a member of the union, the employee may (in some ship in the union organization cases) choose not to be a member. However, the union is still obligated to negotiate on behalf of that employee and is still required to represent that employee in disputes with the employer, and the employee is bound by the employment terms the union negotiates. Membership in the union enables a person to participate in the governance of the union itself. This includes the right to debate and vote on decisions the members make at general meetings of the union. Non-members do not generally have the right to participate in votes or decisions and may not attend general meetings. 60  Part I The Legal Framework union density/coverage There are three votes that employees in the bargaining unit have the right to par- the percentage of work- ticipate in even if they are not members: ers who are unionized, as – A representation vote, for the decision whether the union should be certified for opposed to working under that unit or decertified. Alberta requires this vote. However, it is noteworthy that individual contracts of the BC Code was changed to allow a union to certify without a representation employment; also called vote if at least 55 percent of employees in the proposed bargaining unit are mem- union coverage bers in good standing of the trade union (the LRB would order a vote only if the union security 55 percent threshold has not been met, provided that 45 percent of employees in refers to any requirements the unit signed union membership cards). in the collective agree- – A ratification vote for approval of the first or renewed collective agreement; ment that employees in Alberta leaves it to the union to decide whether non-members can vote to ratify; the bargaining unit either note that neither province requires ratification—it is up to the union to decide be members of the union whether to ask members to ratify. or pay dues to the union – A strike vote; section 39 of the BC Code also specifies that ratification votes (if held at all) and strike votes must be by secret ballot. In Alberta, all three types of union shop a type of union security vote are by secret ballot (s 15(2) of the Alberta Code). whereby all employees in the Union density/coverage. Union density/coverage simply refers to the percentage of bargaining unit must become workers who are unionized, as opposed to working under individual contracts of members of the union within employment. We mention the term here mainly because it provides some context a specified period of time for the relevance of unions to workers across Canada. Union density in Canada has (usually after a probationary been relatively stable at around 30 percent since the late 1990s. Public sector work is period); employment is con- the most highly unionized at around 70 percent, while the private sector is around ditional on joining the union 15 percent. Alberta has the lowest union coverage rate (24.9 percent) of any province; in BC, the union coverage rate is 30.1 percent (Statistics Canada, 2024). closed shop Union security. Union security refers to any requirements in the collective agree- a type of union security whereby a person must ment that employees in the bargaining unit either be members of the union or be a member of the union pay dues to the union. Almost all unions in Canada have some type of security before getting the job; the clause. employer is only allowed Union shop. In a union shop, all employees in the bargaining unit must become to hire current members members of the union within a specified period of time (usually after a probationary of the union to work in a period). The employer does the hiring, but the employment is conditional on joining particular bargaining unit the union. If an employee refuses to join a union organization, the employee cannot work there. open shop Closed shop. In a closed shop, a person must be a member of the union before get- a system whereby union mem- ting the job. The employer is only allowed to hire current members of the union bership is optional and pay- ment of dues is also optional to work in a particular bargaining unit. Today, closed shop unions have hiring-hall systems in place where employers contact the union to find workers for a specific job. Rand formula shop Closed shops are less common than union shops and tend to be associated with the a variation of the open shop construction trades and film and music industries. union, this is what most Open shop/Rand formula shop. In a true open shop union, membership is optional labour legislation requires and payment of dues is also optional. The Rand formula shop is a variation of the employers to accept if the open shop union. In a Rand formula shop, the employees do not have to be union union requests it; in a Rand members, but they are still required to have an amount equivalent to union dues formula shop, the employees deducted from their pay and remitted to a charitable organization agreed upon by the do not have to be union union and the employer. The Rand formula was created to provide financial security members, but they are still required to have union dues to unions and prevent the problem of “free riders” who benefit from the union’s work. deducted from their pay  Chapter 3 Unionized Workplaces   61 As noted above, a union is required to represent all members of the bargaining unit, whether they are members or not. Representation can be a costly endeavour, and it was seen as unfair that a person who chose not to be a member would get all of the benefits without incurring any of the costs. Agency shops. An agency shop is where non-members within the bargaining unit agency shop pay the union for the costs of collective bargaining rather than pay regular dues that a type of union security cover a broader range of union activities. These are exceptionally rare in Canada—as where non-members are completely open shops (i.e., dues-optional shops). within the bargaining unit pay the union for the costs Regardless of which type of shop applies, there are three principles to keep in mind: of collective bargaining, rather than pay regular 1. If you are in the bargaining unit, the union negotiates for you, whether you are a mem- dues that cover a broader ber or not and whether you pay dues or not. Membership gives you more of a say range of union activities in union governance, but non-membership does not exempt you from the union’s authority to negotiate on your behalf and to pursue grievances on your behalf. 2. The employer still does the hiring. In a closed shop, however, the employee’s admis- sion to membership in the union is a prerequisite of employment. The union deter- mines whether or not the individual has the necessary qualifications and skills for the job, and the employer contacts the union to offer the job to the union member recommended by the union. 3. For all unions, the employer normally deducts union dues from the employee’s pay and remits them to the union. Certification Process Basic Procedures The process of certification is reasonably straightforward, aside from the political man- oeuvring that can go on during the organizing period. There are a few steps and a few key requirements, some of which are strict (e.g., time limits and the percentage of employees who must support the application) and some of which are discretionary (e.g., the require- ment that a bargaining unit be “appropriate for bargaining”). They are as follows: 1. A certain proportion of the employees in the proposed bargaining unit must indi- cate support for, or have already joined, the union. In BC, it must be 45 percent. In Alberta, the proportion required is 40 percent. In BC, the workers must have joined the union; in Alberta, workers can either join or declare in writing their wish to have the union represent them. 2. Once a union signs up the required proportion of bargaining-unit workers, it applies to the LRB for certification under section 18(1) of the BC Code and section 32 of the Alberta Code. 3. The LRB then determines whether the proposed bargaining unit is “appropriate for bargaining.” The BC and Alberta statutes give the LRBs complete discretion. LRBs will normally consider the following factors when evaluating bargaining-unit appropriateness: a. community of interest or similarity in skills, interests, duties, and working conditions; b. the nature of the employer’s organization, including the physical and administra- tive structure of the employer; 62  Part I The Legal Framework c. functional integration; d. geography (i.e., a preference for a unit in a small or connected area); e. the practice and history of the current collective bargaining relationship, if any relationship is in place; f. the practice and history of collective bargaining in the industry or sector; g. the viability of bargaining structures—most LRBs prefer larger units, rather than small and fragmented groups; and h. agreement of the parties—if the union and employer agree that a unit is appro- priate, the LRB may give that some weight in its decision (Alberta Labour Rela- tions Board, 2003). 4. Next, the LRB confirms the number of employees in the unit (usually using the employer’s payroll records) and confirms that the proofs of membership are valid and amount to at least 45 percent in BC or 40 percent in Alberta of the bargaining- unit employees. 5. For this next step, the process diverges between what is required in BC and in Alberta. A major change occurred in BC effective June 2022, which simplifies the certification process. In BC, once the minimum threshold of 55 percent of mem- bership is established and an appropriate bargaining unit has been demonstrated to the LRB, the LRB will certify the union. No further action is required. This is often referred to as “card check certification.” In cases where the union demonstrates at least 45 percent but less than 55 percent of employees in the unit are members, then it will order a secret ballot vote within five days of the application date pursuant to section 24. In Alberta, once a valid bargaining unit has been demonstrated and 40 percent or more of this unit has signed up for membership, the LRB must then order a secret ballot representation vote within 20 working days (25 days for a mail- in vote). In Alberta, the outcome of a secret ballot vote will be determined on the basis of the ballots cast by the majority of employees who participated in the vote. If the majority vote in favour of the union, the LRB will issue a certification order and all employees in the bargaining unit will become unionized. While this is the normal process for certification, it can occur where the employer voluntarily recognizes the union without requiring the voting procedures in the Code. The LRB can also order a remedial certification if the employer has engaged in an unfair labour practice that may have influenced the outcome of a certification drive. In May 2019, the BC Code was amended to provide the LRB with broader discre- tion to use certification as a remedy to an unfair labour practice. Previously, reme- dial certification was reserved for circumstances where the LRB determined that “but for” the employer’s unfair labour practice, the union’s organizing efforts would likely have been successful. This required evidence of a downturn in union support or organizing momentum following the employer’s unlawful activities. However, the current language in the BC Code permits the LRB to remedially certify a union if the “board believes it is just and equitable in order to remedy the consequences of the prohibited act” (s 14(4.1)(c)). The ability to use certification as a remedy to an unfair labour practice is also available in Alberta, and the Salade case establishes the framework the LRB will use to determine when it is appropriate to apply this remedial action.  Chapter 3 Unionized Workplaces   63 Remedial Certifications in British Columbia CASE Salade Etcetera! Inc (A Division of Vegpro International) v United Food and Commercial IN Workers International Union, Local 1518, 2020 BCLRB 34 POINT Facts In Salade, the LRB considered an application by a union alleging that the employer committed unfair labour practices by terminating an employee who, at or around the time of termination, was known to have been in contact with the union about potentially certifying the workplace. The union also claimed the employer effectively terminated the employment of another employee who was also involved in the organizing campaign. Relevant Issue Did the terminations constitute an unfair labour practice and, if so, what was the appropriate remedy? Decision The LRB held that the employer had committed an unfair labour practice. While the evidence showed the employer genuinely had concerns about the first employee’s performance prior to it learning of the organizing, it could not demonstrate that its decision did not wholly involve anti-union animus. The LRB found that the employee’s involvement in union organizing played “at least some role” in the decision to terminate his employment. As for the latter employee, the LRB held that the timing and purpose of a particular discussion with the employee that led to his dismissal was related to his organizing activity and, ultimately, was a violation of the Code. In awarding remedial certification, the LRB commented at length on its views with respect to how the new section 14(4.1) of the Code should be interpreted (emphasis added): 153 I find the countervailing policy issues put forward by the parties can be reconciled having regard to the new remedial certification language of the Code and the specific facts of this case. The Union organizing campaign was in its infancy. The Union had one meeting with employees and successfully recruited two inside organizers to begin the process of testing the workforce for support. I have found that the Employer terminated the employ- ment of the two inside organizers upon learning of their involvement in a certification cam- paign. Employees in the workplace would have known Esposito and Scheerschmidt had begun approaching employees about the Union, and would be aware their employment was swiftly terminated. The Union did not present evidence of the psychological effect of the dismissals on the employees but the Board has acknowledged the evidence of indi- vidual employees has minimal probative value, and there is little, if any, room for the prac- tice of calling employees to testify regarding the effect or impact of impugned employer conduct (Cardinal Transportation, para. 324). 154 I find the new Code language, when applied to a case such as this one, allows for a substantively different approach to remedial certification. By way of comparison, in Cardinal Transportation, the Board addressed the interpretation of the recently repealed remedial certification provisions, which at that time had just been implemented. It noted the legislative changes meant unions no longer had to prove they would have been “very likely” to obtain majority support, and it moved to the lower threshold that a union “would likely” have obtained the required support (Cardinal Transportation, para. 325). In contrast, I find the current legislative amendment was not intended to simply further move the bar for remedial certification to something less onerous from an evidentiary perspective, but rather the Board now has the discretion to respond to an employer’s unlawful actions with a remedial certification where it is just and equitable to do so. This con- tinues to be analyzed having regard to such factors as the severity of the employer’s actions and whether the union had an ability to see if it had support among a group of employees. On the facts of this case, and under the new language in the Code, I find the Union was not required to demonstrate the consequences of the Employer’s actions on their level of support where two inside organizers were swiftly dismissed as a direct consequence of their attempt to gauge interest in unionization among (Continued on next page.) 64  Part I The Legal Framework their peers. Requiring the Union in the present case to demonstrate the type of evidence the Employer deems necessary would continue to incentivize a “hit hard, hit early” approach to defusing organizing campaigns. 155 These findings are not divorced from the Board’s policy around the former reme- dial certification provision. When discussing the factor of membership support prior to and subsequent to an employer’s unfair labour practice the Board noted its policy must not per- mit an employer to gain the fruits of its illegal conduct (Cardinal Transportation, para. 320). The Board also had a significant increase in its preparedness to order remedial certi- fication where the unfair labour practice involved the discharge of employees active in the organization campaign. As noted in Cardinal Transportation: “This kind of employer conduct involves the use of the ultimate economic weapon (discharge or termination of employees’ jobs) in order to deny employees’ exercise of freedom of association. No employer should have the benefit of these ‘drastic’ and unlawful measures; and this is even more the case where an employer moves deliberately and severely at the start of a union organizing drive in order to ensure the effectiveness of its anti-union conduct” (para. 321). 156 The above comments informed a “but for” approach to ordering remedial cer- tification but I find they are also relevant to the notion of what is just and equitable to remedy the consequences of a breach. This is because the consequence of the breach like the one in this case was to terminate the Union’s organizing campaign at a vital and vulnerable time when the effect on employee choice is immeasurable. The LRB concluded that it was just and equitable to order remedial certification, based on the fact that the “timing and manner” of the two dismissals could “reasonably be understood as having the effect of ending the Union’s organizing drive in its tracks” (at para 157). The LRB concluded that it was not necessary for the union to show that the actions had consequences on its organizing attempts or prove that it had sufficient membership support to justify the order. Despite the foregoing, the LRB did recognize that its decision should not be taken to mean reme- dial certification is a “forgone consequence” of an unfair labour practice, and it recognized the fol- lowing factors as relevant to the determination: (1) the nature and severity of an employer’s actions, (2) the likely effect those actions had on the employees and the union’s ability to organize them, and (3) the stage of the union’s organizing campaign. The LRB rejected the employer’s argument that an order for remedial certification would “impose” the union on a group of individuals who may not wish to be represented. The LRB considered the fact that it is capable of issuing conditions on such an order (e.g., that the collective agreement reached must be ratified) as capable of mitigating this concern. The LRB concluded by restating the following non-exhaustive factors intended to guide the LRB’s assessment of whether remedial certification would be just and equitable (at paras 64 and 65): The seriousness of the unfair labour practice, assessed objectively in terms of its effect on the LRB’s ability to ascertain the true wishes of employees by way of a representation vote. The factual context surrounding the unfair labour practice, including the point or stage of the or- ganizing campaign when the breach occurred and any circumstances that mitigated or exacerbated its effect. Whether a different remedy would adequately address the consequences of the unfair labour prac- tice and whether it would have a sufficient deterrent effect. An appropriate remedy also needs to provide deterrence, so as not to become merely a “licence fee” for breaching the Code. The employer applied to the LRB for reconsideration but was unsuccessful (Salade Etcetera! Inc (A Division of Vegpro International) v United Food and Commercial Workers International Union, Local 1518, 2020 BCLRB 109). The LRB’s reconsideration panel agreed that the change to section 14 of the Code was intended to broaden the circumstances in which the LRB would order remedial certification and generally upheld the original panel’s interpretive approach.  Chapter 3 Unionized Workplaces   65 Effect of Certification Certification has effects on the employer, on the union, and on other unions that may be interested in representing the same employees. The main effect, of course, is that the em- ployer has to negotiate with that union and can no longer negotiate with individual employ- ees in that bargaining unit. This is the exclusive right to bargain discussed above. It gives the unionized employees greater negotiating power, especially in BC, where it is illegal to hire replacement workers during a strike or lockout. This is not the case in all provinces. Alberta does not prohibit the employer from hiring replacement workers (often referred to by union activists as “scab labour”). However, if the workers are highly skilled or engage in dangerous work that requires extensive safety training, it may be difficult for employers to find replacements. There are also effects on other unions, which face restrictions on their ability to “raid” the bargaining unit (i.e., try to take it over) once a union is certified. Although the law does allow other unions to attempt a takeover (and in so doing protects the right of employees who are unhappy with their union to switch to another one), it sets limits. For example, both provinces prohibit raiding for several months after a new certification or during a legal strike or lockout. Decertification There are four main reasons a union can lose its bargaining rights: 1. Employees no longer support the union and apply to decertify it. 2. The union or employer has ceased to operate. 3. Another union has raided it—that is, applied for certification to replace the existing union. 4. The LRB has ordered it under the BC Code. This may happen because of a violation of the BC Code by the union. The process of decertifying or revoking the bargaining rights of a union is virtually iden- tical to the process for certification. It requires the support of the majority of employees in the bargaining unit, and the LRB will investigate to ensure that this is the case. If another business buys a unionized employer, the new owner is bound by the collec- tive agreement. This is called successorship. It usually takes a complete shutdown of an successorship operation to end the union’s status as the certified bargaining agent for those employees. In union certification survives the event of a merger of two corporations that each have unions in place, the LRB has the a merger, an acquisition, or authority to determine a suitable new bargaining unit and to sort out certification status. another business combina- (When a collective agreement is in place, the transfer of an operation to another city is not tion whereby the bargaining rights are not extinguished a closing down—it could be treated as an illegal lockout, unless the transfer and any layoffs by the change in business follow the procedure in the collective agreement.) ownership or structure Collective Bargaining Part 4 (ss 45-55) of the BC Code and division 10 (ss 59-63) of the Alberta Code establish the processes for collective bargaining. The union or employer serves notice to the other party that it wants to start negotiating. Bargaining does not need to start right away upon certification. One party must give notice. In Alberta, if this is not a first contract and a collective agree- ment is already in place, notice to bargain must occur not less than 60 days and not more than 120 days prior to the expiry of the collective agreement (in the BC Code, s 46 just says that 66  Part I The Legal Framework notice may be given any time within four months before an existing agreement expires). Once either party gives notice, bargaining must begin—the other party cannot refuse. Bargaining Process There is no specific time limit for negotiating the first or any subsequent collective agree- ment. The only requirement is that the parties meet and make every reasonable effort to enter into a collective agreement. The parties can bargain any issue that they deem relevant to the employment relationship, provided it does not violate other legislation. For example, a clause allowing discrimination on a ground prohibited by human rights legislation would bridging refers to a collective agree- not be enforceable. ment that applies to the There are two key requirements related to bargaining that are important to understand. parties at the time notice to First, when the parties are renegotiating an existing collective agreement that has expired, bargain is served continuing the terms and conditions of that collective agreement bridge until a new agreement is to apply to the parties until reached or until there is a strike or lockout. Bridging ensures that the employer continues (1) a new collective agree- to pay employees and abide by the terms and conditions of work that are already in place. ment is in place, (2) the right The second important requirement is that the parties engage in good-faith bargaining. of the union to represent the Bad-faith bargaining is a contravention of the Code that is evaluated on a case-by-case basis. employees is terminated, or The Alberta LRB Procedure Guide outlines common issues that arise in bad-faith bargain- (3) there is a strike or lockout ing, including the following: good-faith bargaining refusing to meet once notice to bargain has been served, the parties meet and make refusing to attend meetings, genuine efforts to reach attending meetings unprepared to bargain, agreement; this does not undermining the union by negotiating directly with the employees, require that they agree to surface bargaining (e.g., reactivating signed-off proposals, adding new proposals late proposals from the other side, in the dispute, stalling), and but they cannot deliberately sabotage bargaining efforts illegal bargaining proposals (that conflict with other legislation or terms already to avoid reaching agreement agreed to by the parties). There are generally three options available to the parties if bargaining is proceeding interest arbitration slowly or breaks down completely: a form of dispute resolution that occurs when a collective 1. Either party can request that the LRB appoint a mediator to assist them in settling agreement is being negoti- the outstanding issues. A mediator will work with the parties to try to reach a mu- ated; the parties propose tually acceptable resolution. However, the recommendations of a mediator are not the terms and conditions binding on the parties. If either party applies for mediation, it does not prevent a of the collective agree- strike or lockout from occurring. ment, and the arbitrator 2. Either party can initiate job action to try to move bargaining forward. When it is decides the content of any clauses that are in dispute initiated by the employer, it is a lockout. When it is initiated by the union, it is a strike. Strikes and lockouts are discussed in more detail later in the chapter. grievance arbitration 3. The parties can agree to voluntary interest arbitration. In this case, the LRB will also known as “rights arbi- appoint an arbitrator who will request proposals from the parties and make a deci- tration,” occurs when a col- sion about the contents of the collective agreement. The decision of the arbitrator is lective agreement is in force; binding on the parties. Interest arbitration is different from grievance arbitration, a form of dispute resolution which occurs when a collective agreement is already in place and the parties have a where an arbitrator decides disagreement about how it is interpreted. on the correct application or interpretation of an existing It should be noted that special provisions of both the Alberta and BC codes apply collective agreement clause when it is the first time the parties have negotiated an agreement after the union has been  Chapter 3 Unionized Workplaces   67 c­ ertified. Parties often have greater difficulty reaching their first agreement. Therefore, both the Alberta Code and the BC Code provide mechanisms for first contract arbitration. In first contract Alberta, mandatory interest arbitration can only occur after a strike or lockout notice has arbitration been served and usually after attempts have been made to mediate a settlement between a legislated requirement for the parties. The BC Code eliminated strike or lockout notice as a precondition for interest interest arbitration in the arbitration, which can (but not invariably) lead to a first collective agreement being imposed place of a strike or lockout by an arbitrator. that applies only when a workplace is newly unionized Once the employer and union have agreed on the terms of a tentative collective agree- and the parties are unable to ment, there is normally a process where employees in the bargaining unit have an oppor- reach their first agreement tunity to vote to accept or reject the contract. This is called ratification. If the tentative agreement is not ratified, the parties go back to the bargaining table. If it is ratified, it is ratification signed by authorized representatives of the union and the employer and it becomes a a process where employees binding contract. Individual employees are not required to sign a copy of the agreement. in the bargaining unit Furthermore, the labour relations codes in each province require that a copy of the collec- vote to accept or reject a tive agreement be submitted to the LRB. contract negotiated by the union on their behalf Effect of Execution of the Collective Agreement The main effect of a collective agreement is that the employer, employees, and union are bound by the terms and conditions they bargained. This may seem obvious, but the parties may still have disagreements about what they meant when they bargained the terms. This is why grievance mechanisms are included in all collective agreements. Collective agreements are generally much longer and more detailed than individual employment contracts. They may address wages and benefits; job requirements; scheduling; hours of work; vacation; procedures for hiring, promotion, or transfer; and other important issues that may affect the employment relationship, such as harassment and discrimination. They tend to evolve and become more complex over time. Where an employment contract might be 4 or 5 pages long, a collective agreement might be 40 or 50 pages. It is also important to stress that all employees in the bargaining unit are bound by the agreement the union makes on their behalf, regardless of their membership status. Another effect of concluding an agreement relates to raiding unions. Under section 19 of the BC Code, upon execution of the collective agreement a “collective agreement bar” kicks in prohibiting another union from “raiding” for a prescribed period. The practice of raiding is when one union seeks to replace another. Alberta relies on the “certification bar” described above, but the effect is the same. In BC, once there is a collective agreement, another union may only apply for certification during the seventh or eighth month of the last year of the agreement if the agreement is in force for a term of three years or less, or during the seventh or eighth month of the third year of the agreement and thereafter in the seventh or eighth month in each subsequent year of the agreement if it is in force for a term of more than three years (s 19). This is known as the open period. The BC Code was amended in June 2022 to create an exception for the construction industry, allowing union raids to occur annually in July and August (s 19(2)). After the agreement’s expiry, another unit can apply at any time even if the current union is negotiating a new agreement, but not during a strike or lockout and not for a period of 22 months after a raid application is dismissed by the LRB. In Alberta, another union may attempt certification only if there is no collective agreement in place in the last two months of an existing collective agreement or in the 11th and 12th months each year of an existing agreement (s 37). 68  Part I The Legal Framework Finally, another important effect of the execution of a collective agreement is that the peace obligation agreement bars strikes or lockouts for the term of the agreement. This is called the peace a prohibition on strikes or obligation. A union cannot call a strike, and an employer cannot lock employees out, dur- lockouts during the term of ing the term of a collective agreement. the collective agreement Unfair Labour Practices Most of the disputes that LRBs hear in their roles as adjudicators are about unfair labour practices. These can include allegations that the employer or union has acted improperly during the organizing phase, during the certification phase, or later during the collective bargaining phase. There are many unfair labour practice cases involving allegations that the employer is trying to stop a union from becoming established or “bust” one that is already in place. Unions can also commit unfair labour practices, such as pressuring employees to join or censoring dissenters. Unfair labour practices also include bad-faith bargaining by either side. General Rules for Unfair Labour Practices From the organizing phase to the period after a collective agreement is signed, there are gen- eral obligations on both the employer and union that prohibit them from certain types of conduct (set out in ss 4-9 of the BC Code and ss 147-155 of the Alberta Code). Most unfair labour practice complaints heard by LRBs are against employers. LRBs try to level the play- ing field as much as possible, especially when it comes to establishing a union and negotiat- ing the first collective agreement, which is the time at which the union has the least amount of leverage. This is because the right to unionize is protected by the Charter and there is an inequality of power between employers and employees. The concern is that employers will use their power over not-yet-unionized employees to prevent the union from being established. Most unfair labour practices committed by employers are in the realm of management decisions that affect employees. These range from acts that target individual employees to shutting down an entire operation. More specifically, employers are prohibited from any of the following actions: altering rates of pay or terms and conditions of employment during the certification process or after notice to bargain has been served; refusing to bargain in good faith with a certified union; participating or interfering in the formation or administration of a trade union, or contributing financial support to the union; refusing to employ or discriminating against someone because the person is a mem- ber of a trade union, indicates support for a trade union, participates in a strike, or files a complaint under the Code; intimidating, dismissing, or threatening to dismiss an employee for becoming a member of the union; suspending, disciplining, or discharging an employee for joining the union or for refusing to cross a picket line; or bargaining with any person or organization that is not the certified bargaining agent for the employees in the bargaining unit. Students and employers are often surprised that it is an unfair practice for an employer to give the employees benefits during the union certification process or during bargaining. The codes in both provinces are explicit about this: increases or decreases in wages are forbidden  Chapter 3 Unionized Workplaces   69 during these “freeze periods,” as they are often referred to. Wage increases are as forbidden as decreases. The employer cannot make any changes during the freeze periods, unless those changes are things that are routinely done, such as regular merit-based pay increases (which labour boards may treat as a “business as usual” exception). These rules don’t prevent an employer from suspending, transferring, or laying off employees or from disciplining them where there is proper and sufficient cause. It is also important to note that employers are not prevented from expressing their views, so long as they do not use coercion, intimidation, threats, or undue influence. The BC Code restricts an employer’s freedom to communicate to employees such that the employer is only permit- ted to make statements of “fact or opinion reasonably held with respect to the employer’s business” (s 8). Employer’s Right to Communicate to Employees Must Be Tied to Fact and Opinions That Are Reasonable and Linked to CASE Employer’s Business IN POINT Sysco Fine Meats Vancouver (A Division of Sysco Canada) v Teamsters Local Union No 213, 2020 BCLRB 78 Facts This case involves a certification campaign undertaken by the Teamsters Local 213 (“the union”) at a warehouse facility operated by Sysco Fine Meats in Vancouver beginning in January 2020. When the employer became aware of a certification campaign, they began a series of communications with their employees related to the unionization drive, urging employees to be well informed. The em- ployer also deferred the introduction of new wage increases and a new pension program, arguing that when they became aware of the certification campaign, they were required to freeze current work conditions pursuant to section 32 of the BC Code. The union challenged both moves by the employer as unfair labour practices. Relevant Issues Did the employer breach section 32 when it deferred compensation changes that were announced prior to the certification campaign? This issue is relevant because the union argued that this under- mined their position, as the average employee might draw an inference that were it not for the union’s certification drive, they would have received the changes to their compensation. Did the employer also engage in an unfair labour practice under section 6 of the Code by com- municating in a manner in breach of section 9 (which prohibits coercion and intimidation) and con- trary to section 8 (which places limits on how far an employer can communicate)? Decision The BC LRB first considered whether the employer was in breach of the Code when it deferred previ- ously announced compensation changes. Section 32 of the Code prohibits employers from altering the terms and conditions of employment during an application for certification. This is designed to ensure that an employer cannot influence employees during a certification campaign. While the LRB has previously interpreted this restriction to allow employers to make some changes that were part of “business as usual,” acknowledging that organizations operate in a constant state of flux, it is the con- text and nature of such changes that the LRB will scrutinize. In this case, the LRB rejected the notion that this deferral was part of “business as usual” and found the employer in breach of ­section 32. The LRB considered the timing of the decision of these compensation changes and their deferral, conclud- ing that an employer who has resolved to make changes to the terms and conditions of employ- ment to the advantage of employees, and who after an application of certification cancels those changes, has also altered the status quo ante to its advantage. “Business as usual” (Continued on next page.) 70  Part I The Legal Framework would require that employer carry through with its decision to make changes once that decision has crystalized. (at para 54) On the second issue, relating to the employer’s communications, the LRB considered both sections 8 and 9 together. Section 8 allows communication to employees as long as it is a “fact or opinion rea- sonably held with respect to the employer’s business.” Section 9 provides protection against coercion and intimidation, stating that “a person must not use coercion or intimidation … that could reason- ably have the effect of compelling or inducing a person … to refrain from becoming or to continue or cease to be a member of a trade union.” In applying these two sections together, the LRB looked at the employer’s series of communications to determine whether (1) the information provided was factual, (2) whether information that was not factual was of “opinions reasonably” held about the employer’s business, and (3) whether these communications could be considered to have the effect of deterring an employee from joining or remaining with the union. Two of these communications included the following: The employer urged employees to consider if they “really want to be represented by this sort of group” (at para 84) and to ask, “Who are these union people who say they want to represent me? How well do I really know them? Why are they doing this? What’s in it for the union and the union organizers personally?” (at para 84) The employer also stated, “Unions get their money from you. You pay them union dues which are taken straight off your hard-earned pay cheques. The more members, the more money the union receives. And are you confident as to where all of this money goes? Ask yourself if the union organiz- ers’ own interests are your own interests?” (at para 85) The LRB concluded that this kind of communication was not protected by section 8 because there were at minimum factual inaccuracies, and several comments breached section 9 as they constituted “undue pressure for the purpose of controlling or influencing the employees’ freedom of association [to join or remain with a union].” The LRB further found that the employer incorrectly blamed the union as part of the explanation for why the previously announced compensation changes were not implemented, had called into question the motivation of the union and its organizers, and issued what amounted to “anti-union communication” that was not protected by section 8 and was a clear violation of section 9. Unions have similar prohibitions that prevent them from intimidating employees or employers or restricting their right to communicate with each other. More specifically, unions are prohibited from engaging in any of the following: refusing to bargain in good faith; preventing a person from becoming a member for discriminatory reasons; attempting to compel an employer or employers’ organization to bargain with a union that is not the certified bargaining agent for the employees in the bargaining unit; bargaining collectively or entering into a collective agreement when another union is the certified bargaining agent; attempting to organize workers on the employer’s property without the permission of the employer (though s 7(1) of the BC Code does allow this activity during breaks); using coercion, intimidation, threats, or undue influence to encourage or discourage an employee from becoming a member of a union; requiring that an employer terminate an employee because the employee has been expelled or suspended from membership in the trade union (except where the em- ployee failed to pay the fees uniformly required to be paid by all members as a condi- tion of acquiring or retaining membership in the union); and disciplining or expelling a member for continuing to work during a strike or for refusing to engage in any activity that is a contravention of the legislation (e.g., refus- ing to participate in a wildcat strike).  Chapter 3 Unionized Workplaces   71 It should also be noted that unions owe their members a duty of fair representation. duty of fair This generally means that they must carefully consider any grievance filed by a member and representation make a determination about carrying that grievance forward based on reasons that are not unions must act in good discriminatory or arbitrary. faith, representing their Two important principles for unfair labour practices are motive and onus. members in a manner that is not arbitrary, discrimin- Motive atory, or in bad faith Before or after the certification and collective bargaining freeze periods discussed above are in effect, an employer is allowed to increase or decrease wages, dismiss employees, or change working conditions as long as it does so for a valid business reason and is not violating the terms of a negotiated collective agreement. In other words, its motive cannot be to harm the union. This is often referred to as having an “anti-union animus.” A non-unionized em- ployer must, of course, comply with the common law and the BC Employment Standards Act or Alberta Employment Standards Code, and once a collective agreement is in place the employer must follow its rules. But even if the employer does comply with the law or the agreement, if its motive for a particular action is to try to break or undermine the union, that is an unfair labour practice. Onus The question then becomes a matter of proving anti-union animus. Even in the case of an employer closing down an operation entirely, the employer may not have committed an unfair labour practice if the employer can show that it had valid business reasons for this decision. Who has the onus? Generally, the onus (i.e., burden of proof) is on whoever files an unfair labour practice complaint. However, there is a unique reverse onus clause in the BC Code (s 14(7)) that says for reverse onus certain specified allegations of unfair labour practices, the employer has the primary onus a provision within a statute of proving that it has not committed an unfair labour practice. The union need only prove that shifts the burden of proof that an employer’s action has had some impact on an employee or set of employees, and the onto the individual specified employer has to disprove unfairness. to disprove an element of the information; typically, this provision concerns a shift The Collective Agreement in burden onto a defendant rather than the claimant This section provides an overview of collective agreements, focusing on three things: 1. the collective agreement’s role surrounding all workplace relationships for the employees in the unit—and the residual role of other legal rules, including employ- ment standards; 2. some of the standard terms in collective agreements, including terms that the BC and Alberta codes require to be included in agreements; and 3. grievance and arbitration procedures. Collective Agreement as a “Collective Employment Contract” The Alberta Code defines a collective agreement (s 1(1)(d)) as: [A]n agreement in writing between an employer or an employers’ organization and a bargaining agent [the union] containing terms or conditions of employment, and may include one or more documents containing one or more agreements. 72  Part I The Legal Framework The BC Code’s definition (s 1(1)) is: [A] written agreement between an employer, or an employers’ organization authorized by the em- ployer, and a trade union, providing for rates of pay, hours of work or other conditions of employ- ment, which may include compensation to a dependent contractor for furnishing his or her own tools, vehicles, equipment, machinery, material or any other thing. Once a union is certified, it is not a mere agent (even though it is called a “bargaining agent”). It is the principal. That means it represents the employees and can make certain decisions regarding the administration of the collective agreement on its own, without the need to obtain approval from the employees, although this will depend to some degree on the constitution and by-laws of each individual union. Collective Agreement as the Employment Contract The most important point to understand here is that the collective agreement is a legal contract and therefore a rule book that governs how employers manage their operations. It specifies not only the terms and conditions of work but also the procedures for managing change in the workplace and the dispute resolution regime in the event of a disagreement over the interpretation or application of the agreement. With some limited exceptions, the parties do not look elsewhere for workplace rules. They do not rely on common law prin- ciples of contract or employment law. The leading case establishing the unique nature of the collective agreement is McGavin Toastmaster Ltd v Ainscough, a 1976 decision of the Supreme Court of Canada. This deci- sion established that once a collective agreement is in place, there is no longer an individual employment contract. The collective agreement is not a collection of individual employ- ment contracts; it is its own agreement, negotiated between the union and the employer, and enforced by the union and the employer through the grievance and arbitration pro- cedures contained within the agreement. In McGavin Toastmaster, the union went on a wildcat strike, which was a violation of the collective agreement. The employer treated this as a “fundamental breach” of the agreement, based on a principle from the common law of contract. It therefore fired all employees, ignoring the layoff procedures in the agreement. The Supreme Court ruled that the employer had no right to do so; even though the union had violated the agreement, the employer was required to use the remedies in the agreement in response to this violation. Subsequent cases applied this rule and held that individual employees cannot take their employer to court over work-related matters. The collective agreement sets out all of the terms of the working relationship, and if a dispute involves the interpretation and applica- tion of the collective agreement, a dispute must go through the grievance and arbitration process that every agreement must include. Common Terms in Collective Agreements Here we will first review some basic terms that BC and Alberta require employers and unions to include in their collective agreements. Then we will consider some other terms that are not required but are found in most agreements. The BC Code requires collective agreements to include the following terms and often sets out default versions, which are “deemed” to be part of the agreement if the actual agreement omits them: Peace obligation (ss 57-58)—stating that there will be no strike or lockout during the term of a collective agreement.  Chapter 3 Unionized Workplaces   73 Just cause for discipline or dismissal (s 84)—requiring that the employer have just and reasonable cause for any disciplinary action against an employee. Arbitration (s 84)—sending disagreements about the interpretation, operation, or violations of the collective agreement to arbitration or another dispute resolution method (discussed under the heading “Grievance Arbitration Process,” below). “Technological change” and joint consultation (ss 53-54)—requiring a joint consul- tation committee (employer – union) and imposing on the employer the duty to give the union notice of changes in operations that will affect employees in the unit (known as “technological changes”—a term that means much more than changes in digital or mechanical technology and encompasses, for example, scheduling rear- rangements). These clauses usually require the employer to meet with the union to develop an adjustment plan (usually through the joint committee). Interestingly, recent negotiations in Canada and the United States have featured early discussions on the potential impacts of artificial intelligence. This is a trend that will likely con- tinue as certain job functions (and potentially entire occupations) are replaced by artificial intelligence. Duration (s 50)—specifying that all collective agreements must last for at least a year (they usually last for three to five but can vary). The Alberta Code is less prescriptive, leaving the contents of a collective agreement up to the parties to negotiate. The Code itself prohibits strikes during the life of a collective agree- ment (ss 73-74), but there is no requirement that this be explicitly included in the agree- ment. Similarly, the Alberta Code does not mandate just cause provisions, though they are usually an implied term if not specified in a collective agreement. There is no require- ment regarding technological change or joint consultation. The only collective agreement clause mandated by the Alberta Code is with respect to the inclusion of a dispute resolution mechanism. Section 135 indicates that collective agreements must contain a method of resolving differences in the interpretation, application, or operation of the collective agree- ment. However, there is no requirement that arbitration be the final step in that process. If a collective agreement does not include any type of dispute resolution mechanism, section 136 of the Code provides the clause that will be automatically included, which contains the process for binding arbitration. Finally, if the parties fail to negotiate the duration of a col- lective agreement, section 129 deems the term to be one year from the date the agreement commenced. The following terms appear in many collective agreements, though they are not man- dated by LRCs: Recognition clause. All agreements have a clause in which the employer formally rec- ognizes the union as the representative of the employees in the union, even though it is not strictly necessary, since the Code already gives the union recognition. This clause typically includes a description of the bargaining unit. Union security clause. This clause specifies the type of union to be established (closed, open, etc.) and includes the obligation of the employer to collect dues from all employees in the unit. Preamble. Most collective agreements have a preamble that expresses the desire of the parties to work collaboratively to support the employment relationship and explains the purpose of the collective agreement. 74  Part I The Legal Framework Definitions. The preamble may be followed by a series of definitions. For example, the collective agreement may specifically define what constitutes a “regular w ­ orking day.” It may include definitions for full-time, part-time, casual, or probationary employees. The more complex the workplace, the more common it is to see important terms defined so that they are easily interpreted by arbitrators. Management rights. Management rights clauses establish who makes decisions about issues that are not specifically addressed within the collective agreement. There are two perspectives regarding management rights. The “residual rights” view suggests that the employer has the unilateral right to make decisions about anything that is not included in the collective agreement. The “Laskin view” is based on a proposal by labour arbitrator Bora Laskin, who went on to become the chief justice of the Su- preme Court of Canada in the 1970s. In a 1953 arbitration decision, Laskin argued that since the rest of the collective agreement was open to bargaining, these issues should also be resolved through bargaining (International Chemical Workers Union, Local 279, in re Rexall Drug Co Ltd). In practice, the residual rights view tends to prevail. However, these clauses generally: –  ensure that the collective agreement takes precedence over general management rights, –  require just cause before an employer can discipline or discharge an employee, and –  require that the exercise of management rights be reasonable and consistent with the spirit of the collective agreement. Just cause. The agreement may set out specific procedures for establishing just cause, in addition to the basic obligation that the employer have just cause (noted above). The concept of just cause under collective agreements is distinct from the common law (discussed in Chapter 13), but in practice, arbitrators and LRBs apply similar principles. In disputes about just cause, the issue is often proportionality between the offence (the employee’s wrongdoing) and the penalty (dismissal or other discipline). One difference between union and non-union workplaces is that the right of a dis- charged employee to be reinstated is available as a remedy in unionized settings, and arbitrators use it regularly. Grievance and arbitration. As noted above, collective agreements are required to include some type of mechanism for resolving disputes about the contents of the col- lective agreement. These are referred to as grievance mechanisms and are discussed more thoroughly below. Wages and working conditions. A series of collective agreement clauses are generally needed to establish rules regarding hours of work and the details of compensation. These may include a range of wage structures (hourly, piecework, salary), increments for years of service (seniority), job performance requirements, bonuses, profit shar- ing, and benefits (long-term disability, health care, dental, pensions). Internal labour market. These clauses address how employees move from one role to another within the organization and what happens if they leave the organiza- tion for reasons unrelated to just cause (i.e., layoff or job loss due to contracting out). This may include rules about job postings (when and where), layoff pro- cedures, bumping rights, severance pay, and contracting out. This is also where clauses regulating how the parties will manage the impact of technological change might appear.  Chapter 3 Unionized Workplaces   75 Seniority. Seniority protection is a cornerstone of most collective agreements. The agreements will often provide detailed formulas for calculating seniority. This is because seniority is normally a key factor in determining a range of rights within the collective agreement, such as wage increments, transfers, and promotions. More senior employees are given preference over junior employees, provided they have the requisite skills to do the job. Seniority also affects the order of layoff and recall and enables senior employees to “bump” more junior employees out of positions in the event of layoffs. Work environment and behaviour. These clauses address the physical work environ- ment, safety, and other factors that are particular to the work done in the bargaining unit. This may include the establishment of joint committees for safety or whether employees have to wear uniforms. This is also where clauses that address human rights and prohibit harassment might be included. Picket lines. Many agreements permit employees to respect picket lines of other unions at the same workplace. This means the employee is entitled to refuse to cross the picket line and cannot be penalized for doing so—except that the employer is not required to pay employees who refuse to cross the line. Given the number of different issues that can arise in the relationship between an em- ployer and a group of employees, it is not difficult to see how these agreements can become quite lengthy and complex. Grievance Arbitration Process Basic Principles and Procedures The grievance process is an essential part of a unionized workplace, and collective agree- ments usually set out quite a detailed regime for grievances, a regime that leads, if the dis- agreement is unresolved, to arbitration. Most collective agreement grievance procedures contain a number of remedial steps or stages, where the parties try to resolve the issue prior to sending it to arbitration. This usu- ally begins with informal meetings between the affected employee, the immediate super- visor, and a union representative. If this front-line group is unable to settle the grievance, there are several additional grievance stages with progressively more senior people involved (from both the employer and the union). Time limits are attached to each stage, and exceed- ing them may make a grievance inarbitrable. It should be noted that arbitration is the last resort and is generally reserved for those situations where the parties need clarification of truly ambiguous terms in the collective agreement, or for when one side or the other wants to make an important point (even if they know they may lose). Arbitration is an expensive and lengthy process, though usually cheaper and faster than a court case at common law. In grievance arbitration, both sides share in the cost of a neutral third-party arbitrator (whom they must agree on). In addition, there is the time required to prepare for the arbitration hearing, the cost of legal counsel, and the costs associated with the attendance of witnesses. For this reason, the decision to proceed to arbitration (versus giving up and accepting the employer’s position) belongs to the union, not the employee. In practice, the decision is normally made by union executives, though some unions may require a vote of members. Arbitration is the main process for disputes about the collective agreement and the work- place generally. There are some areas of shared jurisdiction between the LRB and arbitrators 76  Part I The Legal Framework in BC, but the default process is arbitration. The courts have little place here. Even where the decision of an arbitrator is reviewed by the courts (or the LRB in Alberta), there is considerable deference to the arbitrator’s expertise. Review of a decision will only consider whether the arbitrator’s decision was reasonable (except on questions of jurisdiction, general principles of law, or bad faith by the arbitrator—see Dunsmuir v New Brunswick ). Strikes and Lockouts We come now to another important feature of labour law: the right of workers to go on strike and the concomitant right of the employer to lock out their workers. This feature is distinct from the rights of non-unionized workers, for whom “going on strike” means quitting. (At best, individuals who walk off the job because of a dispute can claim that the employer has constructively dismissed them—see Chapters 11 and 14). It should be noted that resorting to a strike or lockout is not taken lightly by either party. There are costs asso- ciated with this kind of job action that can include loss of pay for union members, loss of business for employers, negative impacts on the public, and damage to the culture of the organization. If the employer and union cannot agree to terms for a collective agreement, the union can call a strike or the employer can lock out its workers. The idea is to use economic pres- sure to get the other side to agree to less favourable terms and conditions than they would like. A strike or lockout will shut down most if not all of the operations in the bargaining unit. At the end of the strike or lockout, the workers return to their jobs. Although some provinces, including Alberta, allow employers to hire temporary replacement workers, the BC Code (s 68) has a strict prohibition on the practice. Section 68 even prohibits employers from forcing managers to fill in for striking workers. All jurisdictions prohibit the hiring of permanent replacements (in Alberta, the law entitles striking or locked- essential services out workers to return to their jobs, bumping any replacement workers: s 90(1) of the public services that, if inter- Alberta Code). rupted, would endanger the This section sets out the basic rules around strikes and lockouts. It also outlines the BC life, safety, or health of the public; this includes services and Alberta procedures for declaring certain workers to be performing essential services, necessary to maintain the and thus removing their right to walk off the job. This summary focuses on strikes, rather rule of law and public se- than lockouts. Many of the rules for when lockouts are allowed are similar, though there are curity; essential services some differences. For example, if there is a single employer, the employer does not need to are defined in statute and hold a vote on whether to lock employees out. A lockout vote is only required where there may vary by province is an association of employers. The main rules for strikes and lockouts address two questions: (1) When is a strike or wildcat strike lockout allowed? and (2) What activity is allowed during a strike or lockout? a work stoppage initiated by bargaining unit workers without proper authoriza- When Can a Strike or Lockout Occur? tion or approval; it may be As noted in the summary of the Wagner Act model earlier in this chapter, modern labour started while the collective law allows strikes only at certain times. A strike that occurs at any other time is called a agreement is still valid wildcat strike. Wildcat strikes are “untimely” and illegal. Below we will turn to two ways in or during bargaining but which certain strike activity can become illegal: picketing at an illegal location and picketing without notice being given in an illegal manner, which may involve torts such as intimidation or assault, or the crimes or a strike vote taken of assault or “watching and besetting.”  Chapter 3 Unionized Workplaces   77 Certification Required Employees cannot go on strike, and employers cannot lock out employees, until after a union has been certified. This means that unions cannot hold what is called a “representa- tion strike” to try to pressure an employer and other workers to