Topic 2- BC Labour Relations Code

LECTURE OVERVIEW
1. Labour law jurisdiction
2. Labour relations code
3. Role of labour relations board
4. Excluded employees
5. Unfair labour practices
6. Certification of trade union
7. Fair representation + decertification
8. Duty to bargain in "good faith"
9. Disputes & resolution
10. Collective action + limitations
11. Final thoughts
 
LABOUR LAW: FEDERAL OR PROVINCIAL?
Is labour law regulated under federal or provincial jurisdiction? Both
 11 labour codes in Canada: 1 for each province
 BC: BC labour relations code
o Applicable? Non-federal industries
o Disputes? Via BC labour relations board
 1 for federally regulated industries/jurisdiction
o Canada labour code (see next section)
o Adjudication? Via Canada industrial relations board
o e.g., in vancouver
 Look in Canadian constitution (sections 91 + 92) to see whether particular industry is regulated
by provincial or federal law
EXAMPLES: FEDERAL & PROVINCIALLY REGULATED INDUSTRIES
 Federally regulated industries: Canada labour code applicable per s. 91 of constitution
o Banking, telecommunications, inter-provincial commerce e.g., trucking, air travel
o Criminal laws, postal service, defence, first nations, taxation
 Provincially regulated industries: BC labour relations code applicable per s. 92 of constitution
o Education, health care, prisons, provincial taxation
o Administration of justice, property & civil rights, natural resources
 
RATIONALE FOR LABOUR RELATIONS CODE
1. Regulate inevitable conflict between employers & employees
2. Belief that employee input into managerial decisions (via unions + collective bargaining) benefits
employees and society
 
KEY ASSUMPTIONS
 Unions + employers given autonomy to create collective agreements that meet their own needs
 Belief that unions + employer are able to (usually) resolve their own disputes
 
LABOUR RELATIONS BOARD: "LBR" CERTIFICATION & DISPUTES
If labour relations code ('the code') is violated, LRB can order:
1. Violator to "cease & desist" violating the code
 2. Payment of money
3. Reinstatement of wrongfully discharged employee
4. Any other appropriate order
 
EXCLUDED EMPLOYEES: MAY NOT JOIN TRADE UNION
certain employees are excluded from collective bargaining rights:
1. Managers: those are can discipline and/or have right to fire employees
2. Those who work in confidential labour relations jobs e.g. financial managers; access to
confidential info
 
UNFAIR LABOUR PRACTICES
Conduct of employer & union prohibited by the code is an unfair labour practice and
 Conduct by managers + union officials prohibited
 All employees are prohibited from interfering with rights of employees to join a union
Employers may not discipline/lay off employees during union certification process except if:
 Dismissal/termination for just cause
 
EMPLOYER'S RIGHTS TO COMMUNICATE
 Employers entitled to communicate their views on their business + how unionization may affect
their business
 However, they must not use intimidation or coercion
 Above rules also apply to unions + employees
 
CERTIFICATION REQUIREMENTS
Before granting certification, labour relations board must answer/determine 3 questions:
1. Is applicant union a true union (not dominated by employer)?
2. Is employee group appropriate for collective bargaining?
3. Is there sufficient employee support for the union?
APPROPRIATE BARGAINING UNIT
 Definition: an employee group determined by the labour relations board (LRB) to be appropriate
for collective bargaining
 Determined by extent employees share community of interest with one another
o e.g., similar skills, duties, working conditions
o Physical + admin structure of the employer
o Functional integration
o Geography etc.
 
CERTIFICATION PROCESS
1. 45% or more employees in proposed bargaining unit must sign union cards
2. Union applies for certification to LRB
3. Wages + employment terms 'frozen' while application is pending
4. Secret ballot representation vote held to determine true wishes of employees
5. If majority (at least 50% +1) votes for union, then LRB grants certification
DURING CERTIFICATION APPLICATION: "BUSINESS AS USUAL"
 While certification application is pending, an employer is prohibited from making changes in
terms of employment
o Referred to as "statutory freeze"
  This means no unscheduled changes in rates of pay or other employment terms/conditions can
be made during this period without the LRB's permission
 
EFFECT OF CERTIFICATION
 Union becomes "exclusive bargaining agent" for all employees in bargaining unit (whether or
not they are signed-up union members)
 There are legal differences between employees working in non-union and unionized workplaces
NON-UNION VS. UNIONIZED WORKPLACES

 
DUTY OF FAIR REPRESENTATION
 Union's right: exclusive representative of all employees in bargaining union
 Union's duty: it must represent all employees fairly + in good faith (renegotiation +
administration of collective agreement)
 However:
o Does not mean that all employee demands must be placed on bargaining table or all
grievances taken to arbitration
 
REVOCATION OF BARGAINING RIGHTS: DECERTIFICATION
 Decertification- procedure for terminating union certification
 If successful, union removed as bargaining agent
 Collective agreement becomes void
DECERTIFICATION PROCEDURE
1. At least 45% of employees sign decertification application
2. Employees apply to LRB
3. Secret ballot representation vote held to determine true wishes of employees
4. If majority (at least 50% + 1) votes for decertification
5. LRB grants decertification
 
MAIN REASONS IN HAVING UNION REPRESENTATION IN BARGAINING UNIT?
 one of the main reasons in having a union represent a bargaining unit is that the union, as the
bargaining agent negotiates wages + other terms of employment with the employer
 In order to achieve this goal, good faith bargaining is necessary
DUTY TO BARGAIN IN "GOOD FAITH"
  Legal requirement that parties sincerely attempt to reach agreement
 A deliberate strategy to avoid agreement is bad faith bargaining (an unfair labour practice)
ACTIONS DEEMED TO INDICATE BAD FAITH
1. Surface bargaining: pretending to bargain but there is no interest to reach agreement
2. Refusal to meet the other party in early stages of bargaining
3. Objectives to composition of a bargaining team of the other party
4. Unlawful strike or lockout threats
5. Circumventing the union: bargaining directly with employees
6. Failing to provide info relevant to bargaining
7. Failing to explain bargaining proposals
8. Changing position without justification in attempt to avoid reaching an agreement
9. Last minute bargaining demands
10. Illegal demands: demands contrary to law
 
LABOUR-MANAGEMENT DISPUTES: 2 BASIC TYPES- VERY IMPORTANT
1. Disputes over content of NEW collective agreement (interest dispute)
a. Strike/lockout may occur + mediator may assist parties
2. Disputes over the meaning of CURRENT collective agreement provisions (rights dispute)
a. Grievance must be filed + may go before grievance arbitrator
b. Strike/lockout may not occur
 
METHODS OF RESOLVING COLLECTIVE BARGAINING DISPUTES X 4
1. Voluntary settlement (with or without mediation)
2. Strikes or lockouts
3. Interest arbitration
4. Government legislation (see last PP slide)
METHOD 1: MEDIATION- 'SUGGESTION'
 Mediation uses "power of persuasion" to assist parties to compromise (or collaborate) in order
to reach voluntary agreement
 Mediator cannot impose agreement; thus, non-binding
 So:
o Mediation not always successful in helping parties reach agreement
METHOD 2: ARBITRATION- 'FINAL'
 An arbitrator is empowered to make a final + binding decision in labour disputes
 2 types of arbitration
 
STRIKES & LOCKOUTS

 
REQUIREMENT FOR LEGAL STRIKES
1. Collective agreement has expired
2. Union + employer have engaged in good faith bargaining
3. Strike vote was held and majority of those who voted, favour strike action
4. Written notice given to employer + labour relations board
5. 72 hours pass since notice
6. If mediator was involved, he/she confirmed stalemate (unsuccessful mediation) but NOT
required in BC
NO MIDTERM STRIKES/LOCKOUTS
 While collective agreement in force, strikes + lockouts are prohibited
 As a trade-off for parties losing access to 'strike weapon', grievance arbitration is used as a
substitute
PICKETING: OFTEN DURING STRIKE ACTION
Patrolling near employer's place of business by striking/lock-out employees to:
1. Publicize existence of labour dispute, and
2. An attempt to persuade others not to work for or do business with employer
PICKETING
 Picketing may also take place at any site employers use to do work that is usually done at its
locked-out premises
 Pickets can follow the 'work' to any site to which the employer moves that work i.e., work
referred to as above
PICKETING ALLIES
 Ally- someone/some organization that assists employer in a lockout or in resisting a strike
 If ally does work usually done by the employer, ally may be picketed, i.e., pickets may move to
business of ally to accomplish their picketing goal/spread their message
SECONDARY PICKETING- DEF. & LAW
 Recent supreme court of Canada decision has affected laws that regulate picketing
 Secondary picketing? Is picketing at a location other than the workplace of the striking
employees
 Only violated the law if a 'wrongful' action is involved & at 'non-ally's' business
SECONDARY PICKETING IN BC
 BC LR code prohibits secondary picketing unless striking union obtains declaration via LRB:
o 2nd business has 'allied' itself with the struck employer i.e., changed relationship with
business as to assist/doing work normally done in business
 Thus, if 2nd business actions result in reduction of economic pressure of strike, business is
designated 'ally'; declaration allows 2nd picketing
 Difficult to avoid 2nd picket
REPLACEMENT WORKERS: "SCAB"
 Also referred to as 'strikebreakers'
 Employer can continue to operate its business at struck/locked-out location by using managers +
other staff that are not part of the bargaining unit of striking workers
 Employer can only use persons that usually work at the struck/locked-out location itself
 Employer may not bring in employees from other locations of the employer
Employer is prohibited from using:
1. Newly hired employees or
2. Employees who usually work in another location of employer
… to replace striking/locked-out employees
ISSUE OF REPLACEMENT WORKER BAN: OPINIONS FROM STAKEHOLDERS
 Employers say: replacement labour ban is unfair since they have harder time to continue
operations
 Unions say: allowing replacement workers reduces willingness of employees to unionize AND
 Unions say: allowing replacement workers tend to lead to more picket line violence
 Opinion: use of replacement workers worsens employer-union relationship
ESSENTIAL SERVICES: DESIGNATED/CONTROLLED STRIKE MODEL
 Those services important to public safety/health or welfare
o Includes K-12 education/nurses
o Strikes + lockouts still legal if essential services except re* but:
o Restricted in scope
 Note: firefighters + police have separate law
o Essentially: can't strike- interest arbitration is used instead of strike/lockout if no
agreement between government & *
  Doctors in private practice are not covered by labour relations code
 
ESSENTIAL SERVICES: 3-STEP PROCESS TO RESOLVE DISPUTE
e.g. of process if employer-employees dispute + employees are rendering 'essential services'
e.g.: hospital nurses/teachers
Step 1
 Mediator helps hospital management + nurses' union determine minimum level of nursing
services needed to prevent
 Immediate + serious danger to public
Step 2
 If both sides reach agreement on minimum service level, those services are then designated as
'essential'
 Some nurses/teachers could strike but minimum service level must be maintained by other
nurses as to maintain essential services
Step 3 (if needed)
 If the employer + union can't reach an agreement, labour relations board will set essential
services levels
 
ESSENTIAL SERVICES: PRINCIPLE BEHIND THE LAW
 Balance between access to 'strike weapon' (available to most unionized workers) and
 Public interest in maintaining public health, safety or welfare, including K-12 education
 However
o Government retains right to ignore its own essential services law + pass 'back-to-work'
laws but
o Public sector employees can't be denied access to the collective bargaining process
 
FINAL THOUGHTS
Strong, responsible unions are essential to industrial fair play. Without them the labour bargain is wholly
one-sided. The parties to the labour contract must be nearly equal in strength if justice is to be worked
out + this means that the workers must be organized + their organizations must be recognized by
employers as a condition precedent to industrial peace