1

Labour Law CANS

Common Law Contract of Employment.................................................................................4
Seneca College v. Bhadauria 1981...................................................................................4
Reasonable Notice.................................................................................................................4
Edna Cronk v. Canadian General Insurance Co. (1994 Ont. CA).....................................4
Just Cause for Termination....................................................................................................5
McKinley v. BC Tel (2001 SCC).........................................................................................5
History of Unions and the Wagner Act...................................................................................5
The Constitution and Collective Bargaining ..........................................................................6
Delisle (1999 SCC) ............................................................................................................6
Dunmore v. Ontario (AG) (2001 SCC) ..............................................................................6
Health Services and Support Bargaining Assn. v. BC (2007 SCC)...................................6
Justifications for collective bargaining....................................................................................6
Union Security Clauses: Voluntary Check off, Rand Formula, Closed Shop........................7
2 ways a union can certify: Card and Vote............................................................................7
Union Certification Process: The Organizing Drive...............................................................7
What is an Employee? Control and Economic Dependence.................................................8
National Labor Relations Board v. Hearst Publications (1944 US SC).............................8
Winnipeg Free Press v. Media Union of Manitoba (1999 Manitoba LRB).........................9
Employees Excluded from Unionizing: Managers, Confidential Employees.........................9
Children’s Aid Society of Ottawa (2001 OLRB).................................................................9
What Qualifies as a Union?....................................................................................................9
S. 6(3) Unfair Labour Practices: Dismissal and Anti-Union Animus......................................9
Duchesmeau v. Conseil de la Nation huronne-Wendat (1999 CIRB)..............................10
S. 6 Unfair Labour Practices: General.................................................................................10
Canadian Paperworkers Union v. International Wallcoverings (1983 OLRB).................10
Westinghouse Canada (1980 OLRB)..............................................................................10
Certification and Bargaining Freeze.....................................................................................10
Employer’s Defences: Business as Usual, Reasonable Expectations................................11
Simpsons Ltd. v. Canadian Union of Workers (1985 NSLRB)........................................11
Employer Speech.................................................................................................................11
United Steelworkers of America v. Wal-Mart Canada (1997 OLRB)...............................12
S. 7 Union Solicitation on Employer Property......................................................................12
Canada Post (1995 CIRB)...............................................................................................12
S. 14 Remedies for Unfair Labour Practices........................................................................12
National Bank of Canada Int’l Union (1984 SCC)............................................................12
R. v. K-mart Canada (1982 Ont. CA)...............................................................................13
Professional Responsibility of Lawyers................................................................................13
Law Society v. Rovet (1992)............................................................................................13
The Bargaining Unit.............................................................................................................13
How do labour boards determine the appropriate bargaining unit?.................................13
Metroland Printing (2003 OLRB)......................................................................................14
One Employer, Multiple Locations.......................................................................................14
(De)Certification...................................................................................................................15
Sectoral Certification in Under-Represented Workplaces...................................................15
Fast Food Workers.......................................................................................................15
Sale or Transfer? Successor and Common/Related Employers.........................................15
Ajax (Town) v. Union........................................................................................................16
Common or Related Employer Applications........................................................................16
 2
White Spot v. BC Labour Relations Board (1997 BCSC) pg. 365...................................16
Duty to Bargain (In Good Faith)...........................................................................................16
How bargaining ends...........................................................................................................17
Noranda Metal Industries (1975 CLRB)...........................................................................17
Content of the Duty to Bargain in Good Faith: Hard vs. Surface Bargaining......................18
United Steelworkers of America v. Radio Shack (1980 OLRB).......................................18
Union v. Canada Trustco (1984)......................................................................................18
Langille and Macklem: “Beyond Belief: Labour Law’s Duty to Bargain” pg. 410.................18
Royal Oak Mines v. Canada (Labour Relations Board) (1996 SCC)...............................18
CAW Canada v. Buhler Versatile (1991 MLRB)..............................................................19
First Offer = Last Offer, “Final Offer”....................................................................................19
Last Offer Selection..............................................................................................................19
Duty to Disclose and Share Information..............................................................................19
Westinghouse Canada (1980 OLRB)..............................................................................19
Consolidated Bathurst Packaging (1983 OLRB).............................................................19
S. 53, 54: Joint Consultation and Adjustment Plans ...........................................................20
Remedies for Bargaining in Bad Faith.................................................................................20
Royal Oak Mines v. Canada (1996 SCC)........................................................................20
Buhler Versatile................................................................................................................20
S. 55 First Contract Arbitration.............................................................................................20
Yarrow Lodge (1993).......................................................................................................21
Industrial Conflict: Why do we allow strikes? Why do workers strike?................................21
Public Sector Unions on Strike.............................................................................................21
S. 59, 60: How do you get into a legal strike position in BC?..............................................21
The Constitution and the Right to Strike..............................................................................22
Alberta Reference (1987 SCC)........................................................................................22
What is a strike? Why not strike?.........................................................................................22
CWC v. Graham Cable TV/FM (1986 CLRB)..................................................................23
Ontario Secondary School Teachers’ Federation v. School Board (1999 OLRB)...........23
BC Terminal Elevators Operators’ Assn. v. Grain Workers’ Union (1994 CLRB)...........23
Strike Prohibition and Sympathetic Action...........................................................................24
Int’l Longshoremens’ Association v. Maritime Employers’ Association (1979 SCC).......24
S. 63 BC’s Exception to Picket Line Rule............................................................................24
Hot Cargo and Hot Edict Clauses........................................................................................24
Lockouts...............................................................................................................................25
Westroc v. Union (1981 OLRB)........................................................................................25
Jurisdiction: 3 Forums Regulating Industrial Conflict ..........................................................25
Disputes arising from strikes and picketing..........................................................................26
Strike and the Purposive Definition......................................................................................26
BC Public School Employer’s Assn. v. BCTF (2005 BCCA)...........................................26
Picketing and Freedom of Expression.................................................................................27
Why do we allow picketing?.................................................................................................27
S. 65 Types of Picketing: Primary, Common Sight, and Secondary ..................................27
Canex Placer Limited (1975 BCLRB)..............................................................................28
Harrison v. Carswell (1976 SCC).....................................................................................28
Secondary Picketing............................................................................................................28
Why would we want to limit secondary picketing? .......................................................28
Why do we allow secondary picketing?........................................................................28
Hersees of Woodstock (1963 Ont. CA) pg. 524..............................................................28
 3
The Charter, Striking and Picketing.....................................................................................29
K-Mart v. UFCW (1999 SCC)...........................................................................................29
Pepsi v. Union (2002 SCC) pg. 532.................................................................................29
Re Canadian Forest Products (Canfor Mill) (2006 BCLRB)............................................29
Ally Doctrine.........................................................................................................................30
Industrial Conflict: Job Rights of Strikers and Replacement Workers.................................30
Royal York Hotel (1962)...................................................................................................30
CALPA (Eastern Provincial Airways)...............................................................................30
Why allow temporary replacement workers?.......................................................................30
Why does BC ban temporary replacement workers?..........................................................30
S. 72, 73 Essential Services ...............................................................................................31
Result of Essential Services Declarations: Interest Arbitration............................................31
The Individual Employee under Collective Bargaining........................................................31
McGavin Toastmaster Ltd. V. Ainscough (1975 SCC)....................................................32
Allen v. Alberta (2003 SCC).............................................................................................32
Steele v. Louisville & Nashville Railroad Co. (1944 US SC)...........................................32
Union’s Duty of Fair Representation....................................................................................32
Content of the Duty..............................................................................................................33
How far should duty of representation extend? 3 approaches............................................33
Human rights issues and the Duty.......................................................................................33
Central Okanagan............................................................................................................34
K.H. v. CEP Local (1997 Sask. Labour Relations Board)................................................34
Lavigne v. OPSEU (1991 SCC).......................................................................................34
R. v. Advanced Cutting and Coring (2001 SCC).............................................................34
Employment Standards Legislation.....................................................................................35
Re Becker Milk Co. (1973 OESA designee)....................................................................35
Re: Renaud (1999 BCEST)..............................................................................................35
Termination of Employment ................................................................................................36
Slaight Communications v. Davidson (1989 SCC)..........................................................36
Avenues to Address Employment Discrimination: Charter, Human Rights Act, Tort..........36
Formal vs. Substantive Equality...........................................................................................37
Direct vs. Adverse Effect Discrimination (and Employer’s Defences).................................37
BC v. BCGSEU (The Meiorin Grievance) (1999 SCC) ...................................................38
Vriend v. Alberta (1998 SCC)...........................................................................................38
Employment Discrimination..................................................................................................38
Grounds for Discrimination: Sex..........................................................................................39
Bliss (1979)......................................................................................................................39
Brooks v. Canada Safeway (SCC)...................................................................................39
Janzen v. Platy Enterprises (1989 SCC).........................................................................39
Shaw v. Levac Supply (1991 Ont. Bd. Inq.).....................................................................39
Grounds for Discrimination: Disability..................................................................................40
Shuswap Lake General Hospital v. BC Nurses’ Union (2002 BCCA).............................40
Union’s Duty to Accommodate ............................................................................................40
Central Okanagan School District v. Renaud (1992 SCC)..............................................40
Globalization of Labour........................................................................................................41
What role does the law play in achieving ideal labour conditions?......................................41
International Labour Organization........................................................................................42
 4

Common Law Contract of Employment

- Most employees have no written contract of employment
- Employment relationship can be subject to any agreed upon terms that do not
offend statutes such as the Employment Standards Act, Human Rights Code,
Occupational Health and Safety Act, Workers’ Compensation Act
- In practice, employers dictate these terms

To end employment relationship:

- Employer must have “just cause” for termination or provide “reasonable notice” (or
pay in lieu of notice)
- Wrongful Dismissal:
o The employer dismisses the employee without alleging cause and without
giving notice or wages as required by the contract (express or implied)
o The employee quits in response to a repudiatory breach of the employment
contract by the employer (constructive dismissal)
o The employer dismissed the employee, alleging a cause that is not proved
o The employee is dismissed in breach of a statutory rule governing the
employment relationship or in breach of the administrative law duty of
procedural fairness
Where the contract refers to notice, the court looks to intentions of the parties, however,
this is rarely done, so courts will decide what is considered a reasonable notice period

Seneca College v. Bhadauria 1981

- Court won’t recognize common law tort of discrimination
- Common law doesn’t let you sue for refusal to hire (for any reason)
- Court can’t force parties to enter into contractual obligations with one another, or to
enter into an employment relationship
- Court recognized “wrongful hiring” – damages for people who are lured away from a
good job for a better one, but in the end, the new job sucks

Reasonable Notice
- ESA: contains minimum standards of reasonable notice (statutory guarantees)
- 2 weeks if employed one year, extra week for each additional year, max 8 weeks
o Bring complaints before employment standards adjudicator
- Common law guarantees are way higher… So why do we have these statutory
minimums? Why is the # of weeks so low?
o Want to encourage people to go back to work
o It’s only for people who were dismissed without cause, so employers would
argue just cause, if termination pay minimum was way higher
- Wrongful dismissal lawsuits: asking for reasonable notice, not reinstatement
- Upper limit of reasonable notice: 2 years

Edna Cronk v. Canadian General Insurance Co. (1994 Ont. CA)

- Issue: what is the period of notice is she entitled to?
o Trial judge treated her like upper management b/c of length of service, age,
gender, lack of education and training, few options for employment, stigma
- CA: Cronk wasn’t entitled to the same period of notice as someone in management
 5
o Employers need to predict what they’ll need to pay if they downsize
o Re-employability isn’t only factor to consider when determining notice
o There’s less stigma getting let go from crappier jobs
- Common law can’t force an employer to keep someone on
- Common law can’t restore your employment, even if you have seniority, but it can
ensure that you’re entitled to money
- Dissent: Weiler found it “troubling” b/c of the compounding inequality

Just Cause for Termination

- Employers can specify what is “just cause” for dismissal, as long as it doesn’t
violate the statute, but they rarely set out the terms (problematic)
- Q of degree: Is it enough that the employee did something “wrong” to get fired?
- Courts are reluctant to find just cause
- Most employers just pay off the worker, don’t argue “just cause” b/c employers
should use other methods to deal w/misconduct (discipline) before firing worker
- No such thing as “near cause” for dismissal (standard for just cause is very high)

McKinley v. BC Tel (2001 SCC)

- Is any degree or kind of dishonesty enough for just cause?
- Usually, dishonesty is enough for just cause, but need to look at circumstances
- Dishonesty must be seriously fraudulent before it amounts to just cause
- The test is whether the employee’s dishonesty gave rise to a breakdown in the
employment relationship

History of Unions and the Wagner Act

- Unions were criminalized, viewed suspiciously as criminal conspiracies to artificially
raise wages to raise prices, manipulate the market, disrupted economy
- Also: politically suspicious, linked to (gasp!) communism
- Laws changed, forming a union wasn’t illegal – but still, no legal obligation on the
employer to recognize or bargain with the union
- Earliest strikes were “recognition strikes” which are illegal today

Wagner Act (US)

o Guaranteed right to join a union and bargain collectively
o Employer must recognize union as the only way to bargain with the workers
o All workers represented by the same union, and all had to be bound by the
terms of employment that the union negotiated
o Right to strike if failed negotiation
o If workers were happy, they could choose not to be unionized
- Roy Adams: Unions help individuals get greater economic power, workers shouldn’t
be forced to join
- Europe: the focus isn’t on the economic effects, but on industrial democracy – value
in allowing workers to participate in their own negotiations… so unionizing is
universal, assumes that no rational person would refuse to join, issue of recognition
of the union is not a big deal
- North America: employers try to interfere with formation of unions, like an election
campaign where the employer “campaigns” to show why union is bad
- Collective bargaining legislation in Canada is not universal and excludes certain
 6
occupations from forming union, collective bargaining, striking

The Constitution and Collective Bargaining

- 1987 Labour Trilogy SCC: Charter s. 2(d) does not protect the following rights:
o Right to organize (a union)
o Right to bargain collectively: force employer to recognize, bargain w/union
o Right to strike
- S. 2(d) only protects the right to form an association and to gather in groups to
exercise other protected rights, such as freedom of expression, religion
- Protects the right to do things in a group that are legal for the individual
- Issue: what about things that are only meaningful when you do them as a group?
Court couldn’t come to a conclusion, didn’t say that it automatically made that a
protected activity
- Dickson: 2(d) should protect the right to organize, bargain collectively, and strike
- Some said, the trilogy happened because the labour movement was super strong at
the time, but it was (mostly) reversed, restrictive approach has been expanded
Note: s. 32 Charter applies to government, public employer, challenges to legislation

Delisle (1999 SCC)

- RCMP officers prohibited from forming a union, but 2(d) wasn’t violated, b/c RCMP
officers have an association that does the same thing that unions do, and they
weren’t vulnerable group, so as a practical matter, officers were still protected

Dunmore v. Ontario (AG) (2001 SCC)

- S 2(d) extends the right to organize and form a union to vulnerable workers (but not
to bargain collectively or strike)
- Note: legislation passed to limit/restrict the effects of Dunmore

Health Services and Support Bargaining Assn. v. BC (2007 SCC)

- S. 2(d) protects right to bargain collectively, negotiate contract
- Limitations: the right is procedural, and there’s no right to get a particular outcome,
it just guarantees access to a procedure:
o Recognize and bargain with the union
o Duty to bargain in good faith
- 2(d) is only violated when there’s ‘substantial’ interference w/collective bargaining
- Court: s. 15 wasn’t violated (right to equality)…not about discriminating against
workers (female dominated group of hospital cleaners)

Justifications for collective bargaining

1. Industrial Democracy
o Labour is not a commodity, people aren’t resources to be traded
o Work is a site of participation of individuals who collaborate on decisions

2. Economic Model
o Helps workers achieve gains in the workplace
o Response to inequality in the workplace
o Theory implies that it’s a sign of failure on the side of management, because
 7
it shows that workers aren’t happy
o Model has driven labour legislation in US and Canada

Union Security Clauses: Voluntary Check off, Rand Formula, Closed Shop
Individual workers can’t negotiate outside of the union agreement, so some people don’t
support it because they think they are worth more, would rather bargain individually

Voluntary Check off

- Weakest form of union security
- Don’t have to join union, but you can
- If you join, and you identify yourself as a member, employer will take garnish your
wages and pay dues to union
- Minimum standard in BC
- Problem: free riders get benefits of collective agreement, stuck with what the union
negotiates on their behalf, but not forced to join

Rand formula
- No union membership requirement but, everyone must pay dues, and everyone’s
bound by collective agreement
- Most unions in Canada negotiate for this one because everyone has to pay
- Employer might object b/c of philosophy, not necessarily because it affects them
- Deals with problem of “free riders” who get benefits but don’t pay dues
- Lowest statutory minimum in Federal, Ontario
- Challenged under Charter s. 2b, 2d in Lavigne

Closed Shop
- Highest form of union security
- All workers must join the union and pay dues
- Common in construction industry
- Union has control: can expel worker from union, so employer is forced to fire him
- Challenged under Advanced Cutting

2 ways a union can certify: Card and Vote

1. Card
o Union signs up certain % of workers (60), present to labour board
o Public process
2. Secret Ballot Vote
o Need a simple majority (50% + 1) of employees in the bargaining unit (who
would be bound by the results)
o Employers prefer the vote system b/c there’s less pressure by the union to
sign ballots, and they can use that time to campaign against the union
o Method required in BC

Union Certification Process: The Organizing Drive

Need to be employee, not excluded by the statute, to be eligible to bargain collectively
Organizing Drive
- Union signs up workers, when there are enough supporters, apply for certification
o S. 18: In BC need 45%
 8
o There may be some dispute over what is the appropriate bargaining unit
o S. 22: Board may include/exclude employees from proposed bargaining unit
 Managers, independent contractors don’t count
- Employer has an incentive, at this stage, to prevent certification
- If employer commits unfair labour practices during the drive, violates statutory
provisions, union can go to the Labour Certification Board to complain
- Problem: even if the Board enforces remedies, it might be too late, the union
incentive might be quashed
- It’s also possible for unions to create unfair practices and employers complain
Certification
- At 45%, apply to Board for certification – if yes, representation vote (within 10 days)
… in union’s interest not to have a long organizing drive
- S. 24: If Board is satisfied with application, a representation vote must be conducted
within 10 days. Board can order a re-vote if < 55% of employees in the unit vote
- S. 25: If a majority of those that vote in appropriate bargaining unit vote for union
representation the Board must certify the union (need 50% + 1 of the people voting)
- S. 27: If a union is certified it is the exclusive bargaining agent for all employees in
the bargaining unit
- S. 30: The Board can designate an amount of time that must pass before a union
can re-apply for certification

The bargaining process

- Parties negotiate an agreement
- Agreement must be ratified
- If no agreement then strike/lockout
- If differences cannot be resolved, the legislature may pass back to work legislation
o Parties will then have to participate in binding “interest arbitration” and the
arbitrator’s agreement will be imposed on the parties

What is an Employee? Control and Economic Dependence

1. Control
2. Ownership of tools
3. Chance of profit (sets prices, decides remuneration)
4. Risk of loss
- Only employees are entitled to form a bargaining unit and to bargain collectively
- Even if you are an employee, sometimes you’re not entitled to bargain collectively
(like managers or certain professionals)
Dependent contractors:
- May own tools and have control, but still economically dependant on employer
- Considered employees for the purposes of collective bargaining:

National Labor Relations Board v. Hearst Publications (1944 US SC)

- To determine if a worker is an employee, must look beyond the form, and at the
substance of the relationship, and ask a purposive question: are the workers in an
economically vulnerable position in relation to the employer?
o Inequality of bargaining power
o Who determines terms of employment
 9
Winnipeg Free Press v. Media Union of Manitoba (1999 Manitoba LRB)
- Test to determine if paper carriers are employees or independent contractors: Look
at nature of degree of control by employer
- This case: employer has lots of control, considering it’s off-site
o Paper co. sets the rates, supervises, supplies, has the risk
o Delivery people can deliver other things too, they can find their own
replacements if they’re away (both employer and employee)

Employees Excluded from Unionizing: Managers, Confidential Employees

- Practicum, interns, articling student: depends on the facts of the case
- People on workfare (people receiving social assistance sometimes work for
government, excluded from unionizing -- but is that constitutional?)
Managers
- Divided loyalty: represent employer, but they’re also employees
- Conflict of interest: manager can exercise too much control over workers’ decisions
to unionize, how to bargain; workers might be pressured to go w/manager’s position
Supervisors
- Not in the same unit as employees, but not managers
- S. 29 allows “supervisors” (not managers) to have separate bargaining unit
Confidential employees
- Even if they’re not managers, if they have access to confidential management
labour relations plans, they shouldn’t be in unions (exception)
- Narrow exception

Children’s Aid Society of Ottawa (2001 OLRB)

- Labour Code s. 29: supervisor can form a separate bargaining unit (form a union) if
they don’t exercise managerial functions, not excluded
- Relevant factors:
o How much power do they have? Do they have labour relations power to hire,
fire, discipline, etc, or even provide input about those actions?
o Is there a potential conflict of interest?
o Can they exercise even a slight bit of “real managerial authority”?

What Qualifies as a Union?

- The purpose of the organization must be structured around labour relations
- Written constitution that members sign/ratify
- System of electing officers to serve, collecting dues
- Can’t be an association that the employer creates, funds, dominates
- BC s. 1: unions is required to have a “local character” – it needs to be a local union,
with local interests (but you can have a branch of a more national union)

S. 6(3) Unfair Labour Practices: Dismissal and Anti-Union Animus

- S. 6(3) employer can’t fire or discipline employee for being member or leader of a
trade union except for proper cause (but this is hard during certification stage)
- To show an unfair labour practice, need a connection or nexus between discharge
of employee and the union organizing drive
- Generally, the connection is presumed, and the employer has the onus to show that
the decision was not motivated by anti-union animus
 10
- Anti-union animus need only be a factor, not the sole reason for discipline to
constitute unfair labour practice

Duchesmeau v. Conseil de la Nation huronne-Wendat (1999 CIRB)

- Anti-union animus only needs to be part of the reason for dismissal
- Having “just cause” for dismissal isn’t the only test, because you have to show that
his union involvement had no effect
o Activities were ongoing, employer knew about it for years
o The employer wasn’t happy that a union was being formed
- Employers should institute progressive discipline and record bad behaviour, not wait
to discipline misconduct b/c when the union certification drive starts, estoppel arises

S. 6 Unfair Labour Practices: General

- S. 6: It’s an unfair labour practice to interfere in the formation and certification of a
trade union (regardless if an individual employee or group is targeted)
- Without anti-union animus, the impact on the union must be pretty significant
- No intent required: employer’s action need not be motivated by anti-union animus
o That helps unions, but it can be interpreted too broadly, b/c anything
employer does could be construed as having negative impact on the union
- Board will look at the effects the employer’s actions have on the trade union
o Burden is on employer to disprove

Canadian Paperworkers Union v. International Wallcoverings (1983 OLRB)

2 ways to approach general unfair labour practices:
1. Balancing approach
o Look at impact on the infringement on the union
o Motive isn’t important
o Only find unfair labour practice when the impact on the union is significant
2. Motive Requirement
o Can establish indirectly
o Look at surrounding factors, draw interferences to determine motive to
interfere with the union
o Problem: hard to separate anti-union animus from what’s actually in the
employer’s best interests
- Still we’re uncertain about how motive plays a role, kind of skirted the question
- Boards have broad jurisdiction, discretion to give remedial rewards
- Reducing costs isn’t automatically unfair labour practice (Kennedy Lodge OLRB)

Westinghouse Canada (1980 OLRB)

- Employer had duty to inform the union during collective bargaining that it was a
possibility that the plant would be closing
- High watermark, this principle has been narrowed, case had unique set of facts
- Now: need real evidence of deception and clear motive of anti-union considerations
to establish an unfair labour practice

Certification and Bargaining Freeze

S. 32 Certification Freeze
 11
- Between filing application for certification and vote (starts when application is made)
Bargaining Freeze
- From point that negotiations for new collective agreement begin (after certification
or during final months of agreement) until workers are in the position to strike
- S. 45(2) During statutory freezes, employer is restricted from changing terms of
employment, firing, disciplining
- It does not matter that the change may be one that benefits employees: Exchange
Parts Co.
- Proof of anti union animus is not required, the concern is that the change will
undermine bargaining
- Proper cause: employers can discipline/discharge if there’s proper cause
- Employer has burden to show that there was no anti-union animus
- Not absolute: “Business as usual”, Reasonable expectations tests
- Freeze periods have limits, but otherwise, if it’s not during a freeze, employers can
contract work out (business as usual, reasonable expectations)

Employer’s Defences: Business as Usual, Reasonable Expectations

Business as Usual Test
- Normal change that reflects normal business conditions
- Problem: what if there’s a significant change to the business during the freeze? Can
they do that without violating the freeze?
- BC: employer can apply for authorization/permission from the Board
- CIBC: not issuing anticipated raises when union is organizing violates freeze
Reasonable Expectations Test
- Sometimes it’s not business as usual, but action was within reasonable
expectations of employees

Simpsons Ltd. v. Canadian Union of Workers (1985 NSLRB)

- Even though it’s not “business as usual”, employer’s actions were within the
workers’ “reasonable expectations” b/c financial difficulty, therefore permissible
o Actions didn’t violate statutory freeze or constitute unfair labour practice
- However, contracting out work for whole department wasn’t within reasonable
expectations, unfair business practice

Employer Speech
- Employer’s expression during certification process or organizing campaign is limited
- BC s. 8 employers have more scope: Employers have right to speak to workers as
long as it’s not coercive or intimidating
o BC looks to the effects of the employer’s speech, context, and content, to
determine if it’s coercive or intimidating
o BC promotes more free speech (so Wal Mart isn’t applicable here)
- Employers are limited to giving accurate statements of fact, correct false statements
made by the union, but not to express negative opinions about union
- Even if employer interference in a union organization campaign is found to be an
unfair labour practice, it may be too late to fix the damage that has been done
- Canada's international obligations/ILO principles - courts are increasingly using
international norms to interpret labour legislation. This may result in a change of
approach to employers who impede organization of unions/freedom of association
 12
United Steelworkers of America v. Wal-Mart Canada (1997 OLRB)
- Employer committed unfair labour practice under s. 6(1) equivalent which prohibits
interference with trade union
- Management didn’t answer the store closure question, said “no comment”
- Management didn’t distance themselves from worker’s speech at employer-
sponsored, mandatory “captive audience” meeting, or let union reps respond
- The managers circulating the store was a “high risk strategy”
o Can’t say, we’re here to answer Qs, but then refuse to answer the big one
- Remedy: Board automatically certified the union b/c the union had so much support
prior to all this nonsense, the damage had already been done
- Government repealed the Board’s power to give automatic certification
- Questions of motive are more complex
- Board will look to the effects of the interference, if they were foreseeable

S. 7 Union Solicitation on Employer Property

- Unions may not organize or recruit on employer’s property or on company time
o Exception: when workers live at the job site
- It’s ok to hit up workers in the parking lot or the break room off-hours

Canada Post (1995 CIRB)

- LCUC is trying to “raid” and displace CUPW to represent postal workers
- BC Code s. 24 Raid provision: raids are allowed, but only during certain times
- Argument that there was a security issue with strangers on premises failed

S. 14 Remedies for Unfair Labour Practices

- Reinstatement of fired workers
- Back pay
- Damages to compensate the union for monetary losses
- Order a new vote
- Order union access to the employer’s premises
- Cease and desist: every violation of the code, employer is ordered to “cease and
desist” and is required to post that notice on a bulletin boardS.
- 14(4)(f) Automatic certification
o Extreme remedy of last resort, used sparingly
o Balance support the union had with the extent of the employer’s violation
o Not used often b/c majority of workers may not necessarily want a union,
might apply for decertification right after, process of collective bargaining
won’t be effective b/c workers might not back up the union demands
- Labour Board can provide remedies, not punitive remedy (fines, damages)
- Criminal Code s. 425: Offenses by employers (similar to the Labour Codes rules)
o Some labour codes have quasi-criminal provincial offenses

National Bank of Canada Int’l Union (1984 SCC)

- Labour boards don’t have jurisdiction to award punitive damages or levies (above
and beyond costs), just remedies that are remedial in nature
- Freedom of expression: can’t force employer to say it supports union if it doesn’t
 13
R. v. K-mart Canada (1982 Ont. CA)
- Example of punitive damages case, quasi-criminal penalty imposed
- Employer entered into fraudulent contract to hire anti-union employees, manipulate
bargaining unit
- Union was certified, couldn’t reach collective agreement, ultimately de-certified
- Ont. CA raised fine to $100 000 – provincial fine, in addition to Labour Board’s
actions to compensate union (Board’s remedies aren’t necessarily enough to deter
employer conduct, especially when it’s a large employer)

Professional Responsibility of Lawyers

- Labour law is extremely divided, don’t often switch sides (union or management)
- Often, union-side lawyers have social justice goals, ideological background
- Ethical pressure: often, one single client is your bread and butter, you feel
pressured to do shit for them
- Lawyer can’t disclose employer’s actions to Labour Board because of solicitor-client
privilege, but you can excuse yourself as counsel
- Duty to report another lawyer’s misconduct only if you have independent evidence
of their actions, not if you know about it through privileged information

Law Society v. Rovet (1992)

- Rovet put anti-union employer in touch with guy who could supply them with
employees who would vote against the union
- Rovet backdated contracts (forged documents)
- Rovet was billing the firm for personal expenses
- Law Society suspended Rovet from practicing law for 6 months, benchers 1 year
- One bencher dissented, said he would have disbarred Rovet
- This wasn’t just a single lapse of judgment, it was ongoing pattern of dishonesty

The Bargaining Unit

- A group of employees defined on the basis of the employer for whom they work and
the positions they occupy
- Only one union represents an individual bargaining unit (no “minority unionism”)
- Serves as electoral constituency, basis for collective bargaining
- Not always clear who’s in the bargaining unit – not necessarily all employees
o Sometimes 2nd location/branch run independently (e.g. banks, franchises)
o Sometimes one company has various departments with lots of workers
o Different categories within the same department, e.g. part time vs. full time
- Issue: should part time workers be included in unit? Unions don’t bargain for the
needs of part time workers
- Risk of decertification depends on how the bargaining unit is organized
o Individual franchises have less bargaining power, more often decertified
- Employers initially wanted internally organized representation, then external unions
- Problem today: Globalization! Labour market doesn’t have jurisdictional boundaries,
employer can move their operations to different states

How do labour boards determine the appropriate bargaining unit?

- Typically labour boards prefer bargaining units that envelop and are limited to one
location and generally don’t like a unit to include more than one location
 14
- However, sometimes boards will allow a union organized in one location to organize
another location and add those employees to the same union
o This is sometimes seen as a good compromise
- Sometimes boards will allow an employer to have more than one union for separate
functions if there is significant differences in community of interest between the
employees in the functions
o Air Canada has 3 different bargaining units: one for pilots, one for ground
crew, and a third for flight attendants (and some workers, like office people,
aren’t part of a union) b/c workers have different community interests, one
union can’t necessarily bargain effectively on behalf of all 3 groups
o This is the exception to the rule but often occurs, especially in federally
regulated industries
- ICBC and CUPE (1974, BCLRB): the preferred bargaining unit is as broad one
comprising all of the employees of a single employer
- There should be a community of interest among the employees in question
- Fragmentation can create labour relations problems if there are lots of smaller
bargaining units, striking independently
- Broad unit will have more power, promote uniform terms of employment
- Note: different job categories can get different perks from the same collective
agreement (wages, benefits can differ within the one agreement)
- Result: Cuts down on unions fighting over which workers are in their unit
o CBC had 12 unions operating at once, unions just spent time fighting over
which workers fall under their jurisdiction, because then the get more dues
Employer can apply to Board for consolidation to combine, reorganize bargaining structure

Metroland Printing (2003 OLRB)

- Test whether a bargaining unit is appropriate:
1. Do the people in the unit share a community of interest?
2. Would proposed bargaining unit pose serious labour relations problem?
- Presumption: working together gives employees a sufficient “community of interest”

One Employer, Multiple Locations

- Don’t want multiple strikes
- Industries are so interconnected, sometimes a strike at one location will affect
productivity of another location
- Employers generally want one union for both branches or factories
- Workers will want the perks that the other branch gets, too
- Option 1: one bargaining unit per location
- Option 2: one unit/union for each location, but if union organizes another location,
they get that one too (roll others into existing unions (unions like this)
o Practical: employers don’t have to bargain two collective agreements
o More employees, harder to organize union
- Option 3: must organize all franchises/branches, or none (employers like this one)
- Generally, bargaining unit is restricted to one location: Labour boards don’t like to
split up different bargaining units that are geographically fixed, comprised of
workers at one location (the agreement will reflect different departments, skills
within that unit or location)
Michelin
 15
- 2 locations or branches, one employer: employers like to have two locations lumped
together as one bargaining unit, even if they’re at different locations
- However, general presumption against having one union for multiple locations

(De)Certification
- Statute bars union from repeatedly trying to apply for certification
o 6 month minimum to file another application if workers vote no
- Grace period after union is certified:
o Can’t be decertified
o Another union can’t come in to displace the first union
- Some work forces are more prone to decertification than others
o Workplaces where there’s high turnover, few # of workers, small company
o Part time workers who don’t see the job as long term
- Majority of employees of private sector (service sector jobs) don’t have access to
unions… so what do we do with them?

Sectoral Certification in Under-Represented Workplaces

- One collective agreement would bind all employers and workers in a certain
industry or service sector, across employer boundaries (construction, fast food)
o Different employers tied to one union, bound by one collective agreement
- Labour Board would identify a sector (e.g. fast food workers in Burnaby) where
there’s a need, so they’d keep adding workers from this category to the union
- Multiple unions could represent the workers from the one sector
Fast Food Workers
- It’s a business that can’t be moved off-shore, so ideal for sectoral bargaining
- However, hard to organize fast food workers:
o Few employees
o High turnover rates
- So a couple locations will unionize, but they won’t get better wages or benefits than
the other non-unionized franchises – which prompts decertification
- Sectoral certification tried to solve this problem by lumping all workers in a particular
industry in a defined location, unionize one, then unionize 2nd location, where
workers would be covered by the 1st collective “master agreement”
- Employers fought hard against sectoral certification:
o Puts small independent businesses in the same bargaining units in the same
category as big conglomerates – this might be a good thing, but they might
have different needs/constraints
o Didn’t want to be bound by agreement that they didn’t negotiate
o Don’t want to lose control of workers, who might belong to different unions
- Another problem: the definition of “fast food” isn’t always clear, hard to define…
some might say, we’re a bakery or a café, not a fast food restaurant

Sale or Transfer? Successor and Common/Related Employers

- Successor provision: if there’s a sale or transfer of a business, the union’s
bargaining rights attach to the new employer
- How do you decide if there’s been a sale of a business?
o Sometimes it’s clear (new owners, same business)
 16
o Sometimes it’s not clear: the nature of the business changes, most
employees aren’t kept on but some are
- General rule: there must be a transfer of at least a part of a business as a “going
concern” – doesn’t have to be a formal sale, broad definition
- Simple transfer of assets doesn’t amount to a sale of a business, just a transfer
- Contracting out work: not a sale, it’s a matter for collective bargaining, so bargaining
rights didn’t go to the new workers (so no successorship)
o That’s why unions fight contracting out

Ajax (Town) v. Union

- Ajax has contract w/Charterways to provide workers for city busses. Ajax decides,
they don’t want to contract out bus driver services, they want to hire their own bus
drivers… but they hire the majority of the existing workforce
- General rule: there should be some functioning economic unit (but not in this case)
- Held: it was a transfer of business b/c there was a stable, well-trained workforce
that was supplied by Charterways which was considered value unit (analogous to a
functional economic unit)
- The stability of the workforce constitutes a distinguishing “part” of the business
- Ajax argued: we didn’t renew the contract, we have no legal relationship with
Charterways… courts said, it doesn’t matter, it looks too much like a transfer

Common or Related Employer Applications

- Technically, employed by A (Jazz air) but true employer is B (Air Canada)
- Employees want unions to treat 2 employers as a single employer for bargaining
purposes b/c larger unit, plus bigger company to negotiate with

White Spot v. BC Labour Relations Board (1997 BCSC) pg. 365

- S. 38: Restaurants are under common control or direction, so effectively there’s one
employer, workers can negotiate White Spot agreement, no autonomy for franchise
- Reasons: White Spot has control over the following things:
o Where to get supplies
o Set prices
o Set menu items
o Give frequent quality checks
o Gilley must pay an advertising fee
- Doesn’t matter that there’s no anti-union animus; rather, board looks at control
factors, pragmatic approach

Duty to Bargain (In Good Faith)

- S. 45-47: After union has been certified (or in final months of agreement), employer
will serve notice to bargain  triggers or compels both sides to start the process of
negotiating a new collective agreement
- This triggers bargaining freeze (employer can’t change terms of employment, etc) to
facilitate reasonable amount of time to bargain, to avoid a strike
- Unique situation b/c unlike private contract, parties can’t walk away from table
- S. 54(1): If the employer decides to do something which affects terms, conditions of
employment of a significant number employees, the employer and union must meet
in good faith, collaborate and make an adjustment plan
 17
- Duty to Bargain
o Duty to make every reasonable effort to conclude a collective agreement
o Failure of one side can lead to unfair labour practice complaint
o Substantive component: duty to bargain in good faith
o Objective component: every reasonable effort to conclude an agreement
- Purpose of the duty:
o Ensure just result?
o Prevent surface bargaining? Control the process?
o Union must be able to bargain for what is important to its members
considering the realities of the job
o Unions should not be in a position where they bargain for things that will
become irrelevant due changes in the workplace
o Duty does not allow one side to withhold pertinent information, as the
process is designed to give both sides an opportunity to present their
positions and come to a rational agreement
o Rules about the process promote informed, rational negotiating
- “In good faith” permits hard bargaining (bargaining in your self interests)
- Duty of employer to recognize union as the legitimate, exclusive bargaining unit of
employees, and to bargain with the union in good faith
- Duty to bargain increases union membership b/c workers know that the employer
will have to bargain in good faith
- Statutory rules shape the provisions: provisions can’t violate human rights code,
discriminate
o Unions like to preserve seniority in workplace (don’t want employer to
promote based on merit or choice). Problem: seniority sometimes violates
human rights code or other statutes: disabled person will get lighter work, but
unions want to give lighter work to the senior worker who chooses it
- Issue: how involved should the law be in the bargaining process?

How bargaining ends

- Ideally, with a negotiated agreement that both sides can live with
o Not binding, but needs to be ratified by majority of workers
- Conciliation: when parties can’t reach an agreement, it’s an attempt to make sure
that the parties really are at an impasse, that there’s no option other than a strike
o May be followed by a strike or a lockout (workers must vote for a strike)
o Strike will end when economic pressure starts to take effect
- If strike goes on too long, legislature will force the workers back
o Interest Arbitration: if workers are legislated back to work, arbitrator gets to
impose a final agreement on both sides

Noranda Metal Industries (1975 CLRB)

- Union wanted to know cost of benefits employer was offering: violated duty
- Procedural limits on duty to bargain
- Duty to bargain in good faith: neither party can withhold information that is relevant
to the collective bargaining process (unless there’s a really good reason not to)
- Disclosure promotes informed, rational negotiating: the more info that is exchanged,
the more likely that the parties can reach an agreement
 18
- Issue: If the employer doesn’t already have the info, there’s no duty on the employer
to go out and get it, but if they have info, need to disclose

Content of the Duty to Bargain in Good Faith: Hard vs. Surface Bargaining
- Argue that the benefits offered are so low (or demands are so high) that the other
side isn’t bargaining in good faith
- Can the board review the substance of the bargaining proposal?
- Hard Bargaining
o Doesn’t violate duty to bargain in good faith
- Surface Bargaining
o Violates duty to bargain in good faith
o Simply going through the motions

United Steelworkers of America v. Radio Shack (1980 OLRB)

- Issue: how do you distinguish between hard bargaining and surface bargaining,
considering the employer fought hard against union certification?
- Held: employer’s actions as a whole considered surface bargaining
o Wrote thank-you letters to workers who crossed the picket lines
o Employer never called as a witness to testify anyone who could make
decisions on their behalf
o Employer not flexible in their approach (evidence, but not determinative)
o History of anti-union acts prior to certification
o Employer fought against the Rand formula (also not determinative)

Union v. Canada Trustco (1984)

- If the employer is genuinely willing to conclude an agreement, but only on their own
terms, it’s not surface bargaining (bargaining in bad faith), even if they’re anti-union
- If employer is acting rationally in their own self-interest, but they recognize the union
and prepared to conclude an agreement, it’s not surface bargaining
- Board’s reasons: the bargaining process is designed to put economic pressure, not
produce a particular ‘just’ end; particular results aren’t compelled, guaranteed
- Problem: employer says, you can unionize but we won’t give you benefits better
than non-unionized workers. So workers are paying union dues for no extra
benefits… Should that stance be allowed as hard bargaining?

Langille and Macklem: “Beyond Belief: Labour Law’s Duty to Bargain” pg. 410
- Trustco case doesn’t make sense – it strips the duty to bargain of any value
- Duty to bargain in good faith should include content because labour legislation is
there to promote meaningful collective bargaining, not just an employer being willing
to sign an agreement on their terms, but to seek justice!
- Can’t distinguish between bad faith bargaining and bargaining in self interest
- Employer will (obviously) always sign an agreement that’s in their self interest

Royal Oak Mines v. Canada (Labour Relations Board) (1996 SCC)

- Bitter strike, replacement workers, violence on picket line, 45 employees fired,
employer refused arbitration process wrt fired workers
- Duty to bargain in good faith: objective and subjective!
- Objective component: employer must make reasonable efforts to reach agreement
 19
- Substantive component: Board may look at substance of the proposal, compare to
another generally accepted standard or norm in the industry
- If employer won’t budge on a fundamental issue, considered surface bargaining
- Facts in this case were extreme, so can’t really draw general rules other than that
the Board can look at the substance of the proposals

CAW Canada v. Buhler Versatile (1991 MLRB)

- Employer offered less and less at each bargaining meeting: breach duty to bargain

First Offer = Last Offer, “Final Offer”

- Q: Is it a breach if the employer works out, ahead of time, how far they are willing to
go, and set it out at the beginning, and won’t budge on all those issues?
- In BC, employees can be forced to vote on the employer’s “final offer” if the union
isn’t being reasonable in putting it to the employers

Last Offer Selection

- Combines negotiation with arbitration
- Each side says, this is my final offer… then arbitrator picks the best one (not the
middle ground)
- Advantage: each side will propose the most reasonable position as possible, so
their offer is the one that’s chosen

Duty to Disclose and Share Information

- Noranda: duty to provide/share relevant information, facilitates bargaining process
- Issue: how far does this duty extend?

Westinghouse Canada (1980 OLRB)

- Employers don’t have pro-active duty to disclose if contemplating a significant
change except if the union asks about it, or if the decision has been finalized
o Bargaining is hard enough, don’t want to have to contemplate all hypothetical
scenarios that might not come to pass
o Disclosing possible shut downs might be construed as threatening
- Decision must be finalized: Hard to draw the line to determine at what stage the
decision is “made” (thinking about it, meeting about it, drawing up plans)
- Union has obligation to ask: union must show it’s an important issue on agenda
o Problem: onerous for union to ask about things the employer might be
contemplating – grasping in the dark
- Critics: why should unions waste time bargaining if, after 3 weeks, the plant will shut
down? Let’s focus on the important issues that affect workers long term, not artificial

Consolidated Bathurst Packaging (1983 OLRB)

- Westinghouse extended: employers cannot delay decision making until after the
collective agreement is finalized
- Board may find that a decision was effectively finalized, even if it wasn’t formal
- The more fundamental the decision is for workers (how it affects them), the less
final the decision needs to be; the decision needs only be highly probable
 20
S. 53, 54: Joint Consultation and Adjustment Plans
- If there are major changes in employment mid-contract that affect employees,
there’s a requirement to consult, ongoing meetings
o Practical, b/c some collective agreements are really long
- Consultation committee: on request of party, committee must meet every 2 months
to discuss workplace issues
o Just a dialogue, not a requirement that you have to change anything
- If employer introduces measures that affect “significant number of employees”:
o Employer must give Notice
o Employer must meet, in good faith, to make adjustment plan
- Note: doesn’t say how significant the change must be, or what percentage of
employees it must affect
- These things help deal with the harsh, stark impact of Westinghouse

Remedies for Bargaining in Bad Faith

- “Cease and desist” declaratory orders
- Order for “retraction” public statement that employer has violated code, and is
committed to respecting the code in future
- Costs of bargaining for time wasted
- Board’s remedies are meant to be restorative, facilitate process of collective
bargaining… not punitive remedies or imposed agreements
- Issue: should the Board go further and give more substantive remedies? Should
they require the employer to accept certain terms of the agreement?

Royal Oak Mines v. Canada (1996 SCC)

- CLRB had jurisdiction to order the employer to re-table an earlier offer (substantive)
that the union had accepted but the workers had voted against
- Also: union can order back to work protocol for fired workers (additional condition)
- Labour Boards usually get a high level of deference in judicial review
o Not patently unreasonable to force the mine to re-table an offer
- Test for Valid Remedy: Four conditions under which remedial orders will be invalid:
o Punitive
o Violate the Charter
o Inconsistent with policy objectives of the Code
 To promote industrial peace, balance w/free bargaining
o The order is not rationally connected to the breach

Buhler Versatile
- Employees on strike for months b/c of employer’s bad faith bargaining, lost tons of $
- Remedy: Board ordered employer to pay back wages to workers (ouch)
- Does that pass the test from Royal Oak Mines?
o It wasn’t a lock-out, workers chose to strike
o Hard to know if it was 100% the employer’s fault

S. 55 First Contract Arbitration

- Where parties have been unable to form agreement
o Radio Shack: both parties have fought leading up to certification, not likely
 21
that they will reach an agreement, and truly at an impasse
- Need positive strike vote
- One party can refer the case to mediation. If this fails, mediator can recommend a
strike or refer the dispute to arbitration
- Arbitrator will take the middle ground after hearing from both sides, decide terms of
the first contract, will be binding on both sides
- Like imposing certification on union (which often leads to decertification), first
contract arbitration usually sucks, but it’s better than nothing

Yarrow Lodge (1993)

- First Contract Arbitration isn’t a time for groundbreaking provisions, but outline key
issues as a starting point so the parties can hopefully go from there

Industrial Conflict: Why do we allow strikes? Why do workers strike?

- Employees may only strike over the negotiation of a collective agreement
- Employees may not be disciplined for striking (so long as the strike is legal)
- Ban on recognition strikes (forcing employer to recognize union though strike)
- Ban on grievance strikes
- Union’s only card that they can play is their labour (leverage)
- Parties can’t just walk away, like in a private contract, and bargain with someone
else… generally, employer has more power
- Hope that strike will push parties towards an agreement

Public Sector Unions on Strike

- Public sector unions don’t gain as much leverage from strike b/c city isn’t a profit-
making enterprise, but in fact the city is saving $ (unlike commercial enterprise,
which saves $ on wages but loses $ b/c business can’t operate)
- So, why do city workers go on strike?
o Public pressure on city to settle the strike because people are pissed that
they aren’t getting services, but still paying taxes
- Has it worked?
o Workers seem to be the ones responsible, they’re on the front lines
o Hurts the poorest members of society
o Looks bad b/c all the other municipalities have accepted their agreements
o People are dumping their garbage in the suburbs
- Why do workers vote in different ways (inside workers vs. outside workers)?
o Outside workers can take other jobs, supplement their income b/c there’s a
labour shortage, transferable skills, working construction jobs
- Issues aren’t always in focus: library workers are holding out for pay equity,
because it’s a predominantly female work force

S. 59, 60: How do you get into a legal strike position in BC?
- S. 57(1): You can’t strike while the CBA in force
Step 1: Bargain collectively in good faith until the point of impasse (s. 59)
- How do you know if you’ve reached that point?
- Submit it to a process of mediation, conciliation to help parties get through impasse
- If truly at impasse, mediator will issue a report that allows the union to vote
Step 2: Take a strike vote in accordance with regulations (s. 60)
 22
- Majority of voters must be in favour of going on strike
Step 3: Must serve written notice of strike on employer and Board
Step 4: Union must wait at least 72 hours (max. 3 months) after serving notice to strike
o Allow for last minute bargaining
o Allows employer to prepare for shutdown of their business
- There’s been a lawful lockout, not discontinued for more than 72 hrs (s. 59(2)(a)(ii))
- S. 78: Employer can request that workers vote on last offer if employer thinks that
union is not taking a valid offer to workers, they can by-pass the committee
- S. 74 Process of strike can be delayed if a mediator is appointed

The Constitution and the Right to Strike

Alberta Reference (1987 SCC)

- S. 2(d) does not include right to strike: not fundamental to warrant charter protection
- 2(d) only protects the ability of people to pursue/engage in lawful activities in groups
that are permitted to an individual
- There is no direct individual analogy/equivalent to the collective action of a strike
- Policy reasons:
o Encourage negotiation
o Encourage stability in marketplace
o Avoid intervening in delicate balance between labour and management
o Ultimately, this is government policy, not for courts to second-guess
o Concern that courts would have to hear challenges that, as matters of
complex social policy, belong in specialized tribunals
o Mitigate adverse effects on 3rd parties who don’t have control over dispute
Dissent (Dickson)
- International law recognizes the right to strike as a necessary component of right to
bargain collectively, and collective bargaining is protected under 2(d)
- Violation of s. 2(d), not saved under s. 1 b/c taking away the right to strike is not
limited to just essential services
Note: Remember progression of constitutional protection available to union activities:
Dunmore, Health Care workers  we can expect that this question about whether s. 2(d)
protects right to strike will come up again, b/c it protects right to bargain collectively

What is a strike? Why not strike?

- Can’t strike while collective agreements is in force
- Broad, can extend to things that cease/slow down work
- Partial strikes may provoke a lockout by employer
- Refusal to cross another union’s picket lines is a strike unless in agreement
- Collective action that disrupts employer’s operation and output (objective definition)
o Purpose (get employer to agree to terms of employment) isn’t there anymore
- Employer can’t discipline workers for participating in a legal strike
- Often a union does not want to go on a strike but wants to pressure employer
through some other action where employer still has to pay them
o Refusing overtime, work stoppage, political protest, organized “sick days”
o These kind of pressure tactics often prompt lockout by employer
- Issue: when would these actions amount to a strike?
- A strike requires some measure of common action by employees
 23
- S. 1: A strike is (1) cessation or slowdown of work by employees, in combination or
in concert, (2) to restrict or limit production, but does not include act or omissions:
o required for employee safety or health reasons – s. 63(3)(a)
o permitted under a provision of a collective agreement – s. 62(3)(b)
 Agreement says, don’t have to cross another union picket line
o that is only the direct result and only due to picketing permitted by the Code
- Action need NOT have been taken for the purpose of compelling the employer to
agree to terms and conditions of employment
- “Strike” may include a broad range of tactics to restrict or alter production

Why would workers not want to strike?

o It might not impact employer for a while
o If high unemployment rate, workers may not be able to find alternative work
o Employer might be able to bring in replacement workers (not in BC!!)
o Strike may get union public support or create public animosity

CWC v. Graham Cable TV/FM (1986 CLRB)

- Job action – slowdowns in processing order, speedups in taking orders, no
overtime, and no training of other employees – constituted a strike
- A strike has two objective components:
o A concerted/collective effort, that is done with the…
o …Intent to restrict output or otherwise disrupt the employer’s operations
- The right to strike won’t shield acts that are otherwise unlawful or criminal
- Employer is free to respond by locking out employees
- Employer may not punish workers for engaging in a lawful strike
- Employers may also engage is a rolling lockout (where 10 employees may not
come to work on week one, 10 others may not come on week two)

Ontario Secondary School Teachers’ Federation v. School Board (1999 OLRB)

- The union, while in a legal strike position, began a “work to rule” campaign where it
instructed members to refrain from some extra duties that were required by
Education Act statute (such as conducting parent-teacher interviews). The
employer argued that this job action was not lawful as it’s a statutory obligation.
- Held: The union job action (“work to rule”) is lawful
o Statutory duties are there to ensure teachers don’t refuse them when
collective agreement is in force
o It makes no sense to allow teachers to strike completely but not refrain from
certain activities
o Teachers have a limited ability to exert economic pressure on their employer,
b/c they don’t have economic “output”
o The union is not required to choose between total strike and no strike at all

BC Terminal Elevators Operators’ Assn. v. Grain Workers’ Union (1994 CLRB)

- The employer sought an unlawful strike declaration because employees refused to
work voluntary overtime. The collective agreement provided that employees could
refuse to work overtime though it is typically popular & accepted.
- Held: The refusal to work overtime constitutes a strike and is therefore unlawful as
 24
the collective agreement is still in force.
o Definition of strike: concerted or collective effort/action to restrict output and
interfere with business operations
o Though there was no direct evidence that the union orchestrated the action,
circumstantial evidence will suffice
o Had the union send employees mixed messages as to whether the action
was acceptable that may have been sufficient (CBC v. Cdn Media Guild)

Strike Prohibition and Sympathetic Action

- In most jurisdictions, refusing to cross a picket line is considered a strike
- There used to be a third subjective (purposive) criteria in definition of a strike:
“Purpose of compelling employer to agree to terms and conditions of employment”
- This purposive part of definition would save refusal to cross pickets lines b/c refusal
to cross is not for the purpose of getting employer to agree to terms and conditions
- Above third part has been removed from definition of strike in BC Act

Int’l Longshoremens’ Association v. Maritime Employers’ Association (1979 SCC)

- Absent subjective language in the legislation, collective action with the effect of
disrupting operations will be considered a strike. This includes the refusal to cross
a picket line. SCC refused to read in the purposive definition.

S. 63 BC’s Exception to Picket Line Rule

- Refusal to cross picket line is a strike unless it is permitted in collective agreement
- ONLY for BC: Can include in collective agreement a clause that says that workers
won’t cross picket lines of another bargaining unit that is legally striking
o Rare clause, requires a strong union

Hot Cargo and Hot Edict Clauses

- BC: unions will negotiate a “hot cargo” clause in collective agreement that allows
unions to declare that the goods or services of a particular employer are “hot” b/c
that employer has engaged in unfair labour practices
o Union members should refuse to deal with these goods or services
- Is this in violation of the Code?
o Without the clause, this action would be considered a strike as the action is
collective and disrupts the operations of the employer
o In every other jurisdiction this kind of clause would be invalid
- S. 70: when employer and union agree on a provision in CBA, they may refer the
matter to the Board, which has the power to say what clauses they will give effect to
o Boards use s. 70 to uphold hot cargo clauses as valid if parties contract for it
- Problem: In 1992, s. 2 “Purposes of this Act” was changed to “Duties of this Act” so
the Board would pay more attention to the purposes/duties in the Act s.2
o One of the “duties” is to minimize the effect of labour disputes on 3rd parties
- So essentially, these hot cargo clauses allow for something which would ordinarily
be considered a strike to not be a strike

Should parties be permitted to negotiate “hot” clauses?

Is it essentially contracting out of the Code?
 25
o Labour unrest is disruptive, can be violent, disturbs economic output,
contributes to lost productivity
o Code and labour rules constrain ability to hold strikes
o The more exceptions to the rules you give, the less you adhere to the
purpose of minimizing labour unrest, more lost productivity
o Every other province prohibits hot cargo clauses
- If you’re outside of BC, or employer refuses to permit that clause: what could the
employees do that would be lawful, that wouldn’t amount to a strike?
o Collective consumer boycott
o Join them on the picket lines on their day off to show solidarity
- Note: Board won’t deal with something that the arbitrator should deal with (how to
interpret the agreement); rather, board only decides if it’s valid
- Honouring a “hot edict” does not amount to an illegal strike, provided it is negotiated
in a collective agreement

Lockouts
- Used by employers in response to rotating strikes
- Definition has purposive element:
o Employer removing offer of work to employees to get them to agree to terms
and conditions of employment
- Not defined objectively like a strike, b/c some actions (like shutting down
operations) won’t constitute a true lockout
- Employer cannot lock out employees until it’s in legal lockout position (like a strike)

Westroc v. Union (1981 OLRB)

- Lockout is legitimate legal tactic to put economic pressure on workers to agree to
terms and conditions of employment
- Employer can time lockout when it wants
- Ok to hire temporary replacement workers
- Can’t hire permanent replacements (fire workers, hire new ones)

Jurisdiction: 3 Forums Regulating Industrial Conflict

1. Labour Board
o Interpret and apply Labour Code legislation
 Are we allowed to have this clause in our agreement?
 Is a strike or picketing legal or illegal?
o Can issue remedies that vary between jurisdictions
 Cease and desist, order to return to work, declaration
 Filed in superior courts, enforced by the court
2. Grievance Arbitrator
o Interprets clauses in collective agreement
 Rule on whether a hot cargo clause applies
o Deal with individual picket line disputes
o Only hears grievance if union decides to bring it (won’t deal w/individual)
3. Courts
o Interpret and apply common law, equitable jurisdiction
 26
o Enforce criminal law on picket lines
o Power of punitive damages

- Complicated b/c boards and arbitrators are relatively recent, courts had been the
sole forum for labour disputes
- Unions felt that courts were hostile to their cause
- Courts want to reserve jurisdiction, always looking to intervene
- Want to avoid sending people to multiple forums, and to avoid forum shopping
- Constant struggle between 3 jurisdictions

Disputes arising from strikes and picketing

- Courts have jurisdiction over common law torts (assault, trespass) and criminal law,
however police forces take a hands-off approach, won’t arrest people on picket lines
unless things get violent
- Can you get an injunction through the courts? Varies between provinces
- Ontario: courts have full, active jurisdiction to issue injunctions through tort law
(often interlocutory injunctions)
- Ss. 136, 137: Board has exclusive jurisdiction over regulating strikes, lockouts
o Since courts don’t have jurisdiction in strikes and picketing matters, they
can’t use injunction to restrain strikes
o However, courts can issue interlocutory injunctions, which they justify as an
equitable remedy (jurisdiction wrt equitable remedy) (St. Anne Nackawic)
o Courts cling to their little piece of jurisdiction
o Common law test for issuing interlocutory injunction: irreparable harm if the
injunction isn’t issued

Strike and the Purposive Definition

- Purposive part of definition removed in 1984
- Now employees can protest, refuse to cross picket lines and it won’t be a strike
- Unions try to add the purposive approach back in, argued that it violates s. 2(b)

BC Public School Employer’s Assn. v. BCTF (2005 BCCA)

- Teachers legislated back to work after work-to-rule strike, prohibited from
bargaining over class size. School Board prohibited teachers from discussing class
size at parent-teacher interviews, or from posting related materials in the building.
- Board’s prohibition violates s. 2b freedom of expression, not justified as a
reasonable limit under s. 1
o Charter applies b/c public employer (wouldn’t apply if it was private co.)
o Speech is protected: political speech, non violent expression
o Total ban on the discussion goes too far, not minimal impairment
- Dissent: the violation of s. 2b is a reasonable limit under s. 1
o Exception: a parent raises the issue of class size in teacher conference
o It would harm the public’s confidence in school system
o Teachers shouldn’t use public schools as forum to advance a political
agenda – speech is protected but do it on your own time
o Parents are a captive audience to the speech, parents wouldn’t tell teachers
that they don’t want to hear about this
 27
Picketing and Freedom of Expression
- Picketing is not the only way to strike: can refuse overtime, leaflet
- Picketing does not have to overlap with a strike: independent political protest
o This gets blurred when picketing back to work legislation (Canfor)
- S. 67: can’t picket unless where the code permits it
- No right to picket under 2(d), freedom of association, so unions tried to argue that
picketing was protected by freedom of expression
- Many provincial labour codes are silent when it comes to picketing (including
definition), so most regulation of picketing is left to courts (where you can picket,
how many people can be there, can you stop cars from entering, etc.)
- BC Labour Code is exception:
o Defines picketing
o Explains what kinds of picketing are lawful
o Gives jurisdiction to labour board, not courts, to regulate picketing
- BC Code Definition of Picketing: attending at or near person’s business for the
purpose of persuading or attempting to persuade anyone from entering the
premises, doing business there
- S. 136 gives jurisdiction to the Labour Board to regulate picketing (but courts have
constitutional jurisdiction over picketing, can’t be modified by statute)

Why do we allow picketing?

- Equalizes power imbalances between the parties, particularly when not showing up
to work may not have a substantial economic impact. This increased economic
pressure quickens dispute resolution
- Employers can't avoid picketing simply by sharing a space with other employers.
However, common site picketing must be constrained to protect interests of third
parties—Board must place conditions
- Secondary picketing limited to allies to prevent unrelated third parties from being
drawn in, but picketing may occur at site of ally in order to have an economic impact

S. 65 Types of Picketing: Primary, Common Sight, and Secondary

Primary Picketing
- S. 65(3) Permitted in BC
- Other provinces: courts generally permit it, even if the legislation is silent, but
historically, tension between primary picketing and private property rights
- You can picket employer’s premises if that’s where you work under the control or
direction of employer
- Courts can limit it if you do it illegally (e.g. under tort or criminal law)
Common Sight Picketing
- Complicated if employer shares premises with other businesses, that may or may
not be related or connected to the employer – so sometimes primary picketing has
spill-over effect
- S. 65(4) Board has discretion to permit it but requires it to be terms and conditions
on how it can take place
Secondary Picketing
- Picketing at a site that isn’t the employer’s place of business (not party to the
dispute), but where pressure can be placed on employer
- E.g. picket at premises of customer or supplier of employer to put pressure on them
 28
not to do business with the employer
- Most provinces held that it was illegal
- BC limits secondary picketing to “allies” of the primary employer

Remedies available to employers when union engaged in illegal picketing

- s. 133(1)(a): Board may order cessation of picketing
- s. 143: Board may declare strike illegal
- s. 137(3),(4): Court cannot declare picketing illegal or make a back to work order
but a court can hear a claim for damages arising out of illegal picketing IF the Board
has already declared the picketing/striking illegal.

Canex Placer Limited (1975 BCLRB)

- Board has jurisdiction over who/where/when workers can picket
- Courts have inherent jurisdiction over tort law (damage to property, trespass) and
criminal law (threats) which can’t be abrogated by statute so they
o Courts say “how” people are allowed to picket

Harrison v. Carswell (1976 SCC)

- Carswell legally on strike, wants to picket (primary), but employer’s business is in
privately owned shopping center, so she trespasses
- Even though shopping centre is on private property, it is quasi-public space
(ordinary public has unrestricted access during business hours)
- Dickson J (Majority): Private property rights trump picketing rights
- Laskin J (Dissent):
o Private property rights needs to yield if picketing is to be meaningful
o Presence of picketers on private property should be permitted
o Goal is industrial peace and a system of collective bargaining that works
- S. 66 overruled decision: now there’s (limited) ability to picket on private property
- Ontario: must seek police assistance before getting an injunction to get picketers off
your property, and often police won’t come (effectively overruling the SCC decision)

Secondary Picketing
Why would we want to limit secondary picketing?
- Could be disruptive to business and economy
- Their own employees might not cross the picket line
Unfair to involve third parties in dispute: lose business but they’re not party to the
dispute and can’t do anything about it (like negotiate to end it)
Why do we allow secondary picketing?
- Freedom of expression
- Indirect, increased economic pressure on employer that could, in theory, end the
strike earlier
- It’s a fiction that primary picketing doesn’t have an impact on 3rd parties – if
business is shut down in primary, it has huge impact on an integrated supply chain

Hersees of Woodstock (1963 Ont. CA) pg. 524

- Picketers pressured customer of employer not to accept products from employer
- Secondary picketing was unlawful; strikers are restricted to primary picketing
 29
The Charter, Striking and Picketing
- Alberta Reference: s. 2d Freedom of Association doesn’t protect the right to strike
- BCTF: Speech in the workplace is protected, but s. 2b rights are not unlimited
- Failure to include purposive element in definition of strike doesn’t violate Charter
- Pepsi: Picketing has expansive definition, protected by s. 2b freedom of expression

K-Mart v. UFCW (1999 SCC)

- UFCW workers legally on strike, not entitled to picket, so handed out leaflets to
customers to persuade them to boycott store
- Issue: is consumer leafleting unlawful secondary picketing?
- Statutory def’n of picketing struck down as violating s. 2(b) freedom of expression
o Definition too restrictive, too broad and general
o Catches other lawful behaviour like consumer leafleting, so
- What actions constitute picketing?
o Information Effect: Consumer leafleting is merely providing public with
information that they can choose not to take
o Signal Effect: A true picket line has a “signal effect” on people, they
automatically respond to it and opt not to cross the line

Pepsi v. Union (2002 SCC) pg. 532

- Secondary picketing is protected under 2(b) freedom of expression, permitted at
common law unless it results in an independent secondary tort or crime
o As long as it’s non-violent and expressive activity, it’s 2(b) protected
o S. 1 analysis: limits on secondary picket are not justified
- Note: SCC held that Pepsi decision might not apply in a jurisdiction that has a
statutory scheme for regulating secondary picketing
o BC code permits secondary picketing, but restricts to allies: Does that mean
that the BC Code is too restrictive and unconstitutional?
o More protection for picketing/leafleting than striking

Re Canadian Forest Products (Canfor Mill) (2006 BCLRB)

- Hospital workers legislated back to work, went to mill, set up information picket line,
then official picket line, so mill union tells workers not to cross (their agreement says
that they won’t cross another legal picket line), mill is shut down.
- Union argued that the picketing wasn’t illegal b/c the workers weren’t on strike, they
had been legislated back to work, and had unrestricted s. 2(b) right to picket
- Held: Mill workers honoured an illegal picket line, which amounted to an illegal strike
(doing something to decrease output)
- Distinction between “information” picket line and “official” picket line:
o Initial protest outside mill was political protest, informational only
 No one was coerced not to cross, so it’s protected under s. 2b
o When the picketers declared an official picket line, it had a signal effect
 Even though nothing changed about how they picketed, it fell outside
scope of Charter, it’s unlawful (reasonable limit on restricting 2b rights)
- Functional test: formal picket line, signal effect  not protected (amounts to strike)
 30
Ally Doctrine
- BC: Secondary picketing is only lawful at business of employer’s ally (narrow scope)
- Ally: 3rd party acting in combination, conspires or assists employer in lockout or
strike, provides undue assistance to employer
- Definition of ally is narrow, threshold is high, difficult to call someone an ally
- Need a higher level of involvement, more than just a commercial connection to
employer (customer hasn’t conspired with employer to resist the strike)
- Three factors:
o Has 3rd party markedly altered their operations?
o Does 3rd party have own compelling reasons for actions, like stockpiling?
o How significant is the help? Did they conspire with the employer?
- Look at undue assistance by 3rd party that goes beyond acting in their own interests
and actually helps the employer

Industrial Conflict: Job Rights of Strikers and Replacement Workers

- Most provinces prohibit “professional strikebreakers” (professional replacement
workers) and permanent replacement workers, so workers have jobs to return to
- Ontario: Right to return to your job only lasts for 6 months, employer can replace
you temporarily and/or permanently after 6 months. Complicated when a strike will
go on for a few months, a junior employee goes back to work, then after the strike
ends, senior employees want to come back, but they don’t have priority
- BC, Quebec: ban on permanent and temporary replacement workers!

Royal York Hotel (1962)

- If strike is lawful, employer can’t tell workers to either come back to work or quit
- If the employees cease to be employees for reasons other than the strike (they all
took work somewhere else or died), can replace them
- SCC: In the hypothetical case that a strike lasts forever, the employer should be
allowed to replace workers while the strike goes on, and these replacement workers
can be permanent! Why? Because just as workers have the right to take other jobs
during the strike, the employer should be allowed to hire replacement workers

CALPA (Eastern Provincial Airways)

- If employer hires permanent replacement workers, the employer must maintain
seniority when the striking workers return to work, give former workers priority

Why allow temporary replacement workers?

- Ban on permanent replacement workers is ok
- Allowing temporary replacement workers is balanced: striking workers are allowed
to take other jobs if they have transferable skills and the market is good, so
employers should be allowed to hire
- Allows employer to determine the market rate for the work the strikers were doing
- Sims Report: Banning replacement workers b/c it leads to violence on picket line
punishes the victim of the violence, let’s the violence win

Why does BC ban temporary replacement workers?

- Preserve balance: Loss of revenue for employer, loss of income for striking workers
- Temporary workers distort the market rate for wages
 31
o Unemployed willing to temporarily work for less wages, benefits – “market
rate” for value of labour is unclear
o If there’s high unemployment at the time, the “market” would tell you that
wages should fall when there’s a surplus of labour
o Labour is not a commodity! Don’t want wages to fall based on the market
(supply/demand)
- Some workers have specialized skills, not transferable, can’t find temporary work
- Prevents violence on picket lines e.g. Royal Oak Mines
- Government is often portrayed as hostile to unions, didn’t want to see constant
dramatic shifts in labour legislation with every change in government, want stability
in labour legislation
- Prevent labour unrest

S. 72, 73 Essential Services

- Public sector jobs are often considered essential services, not allowed to strike
- Some provinces (Alberta) disallow strikes by large segments of public sectors
- Some jurisdictions permit strikes, but back-to-work legislation if it lasts too long
o Common in federally regulated industries, like Canada Post
o Critics: if it’s not essential service to begin with, should let them strike
- Some jurisdictions have mechanism for determining when service is essential, and
what proportion of workforce needs to be on duty
- Situation specific: depends on minimum safety standards
- Determinations about essential service: any party can apply to call something
essential, different criteria (safety, education)
- Mediator appointed to help parties determine the minimum # of people needed
- Unions don’t like essential services declarations b/c:
o It’s one less way they can pressure the employer economically
o Strike can last longer, business can sustain itself if too many union workers
are considered “essential”
o Essential employees are the ones who, if missing, could potentially put the
most pressure on the employer if they were striking

Result of Essential Services Declarations: Interest Arbitration

- Adjudicator (often mutually agreed upon) resolves outstanding unresolved issues
- Final Offer Selection: each party gives final offer, arbitrator picks one of them
(incentive to be generous)
- Why not use interest arbitration all the time?
o Less likely to try to achieve a negotiated settlement (rely on it, lazy)
o Unions tend to do well in interest arbitration
o Ability to pay isn’t really an issue b/c the government has lots of $, so
governments don’t have confidence in the process of interest arbitration –
plus, the government can pass legislation to get around it anyway
o Private sector parties could choose arbitration, but they usually prefer
conventional system: quicker at resolving disputes, better result

The Individual Employee under Collective Bargaining

- Union must represent all employees of bargaining unit, regardless if union members
 32
- Individual can’t negotiate terms & conditions directly w/employer
- Principles of Majoritarianism and Exclusivity: only one union per bargaining unit,
and only the union can negotiate on behalf of all workers in that unit
- Doesn’t matter if it’s an issue that’s not included in the collective agreement that
only one worker wants to negotiate
- Exception in Federal Jurisdiction under Canada Labour Code: Individual employees
may go before adjudicator to challenge if they’re dismissed, with or without union

McGavin Toastmaster Ltd. V. Ainscough (1975 SCC)

- Employer (legitimately) closed plant. Collective agreement: if plant closed, workers
get severance pay. Workers went on illegal strike. Employer argued, workers
breached contract, so no more contractual obligation to pay severance package.
- Common law doctrine of repudiation has no place in collective agreement
- Collective agreement can’t be repudiated by breach of the terms of employment
- Common law concepts don’t apply, no individual relationship between employer and
employee
- What could the employer do?
o Injunction to force workers back to work
o Discipline: dock pay, fine, fire for illegal strike (no severance pay obligation)
- Note: SCC had jurisdiction, but courts would rather arbitrators decide these issues

Allen v. Alberta (2003 SCC)

- Government privatizing a service, employees losing jobs. Union negotiated to give
up severance package for jobs with private company. Things don’t work out,
workers sued, argued that they should have been entitled to severance pay.
- Held: dispute should go before arbitrator
- Problem: union must bring grievance, not individual employees… and union already
negotiated that they wouldn’t take it to arbitration! So, workers are screwed
- Workers: only option is to bring a complaint to labour board against the union
- S. 12 Anyone in the bargaining unit can argue union breach duty of fair
representation in negotiation, even if they didn’t join the union

Steele v. Louisville & Nashville Railroad Co. (1944 US SC)

- Union certified to represent all firemen, but internal constitution excluded blacks
from being members of union
- Duty of unions not to discriminate against members of bargaining unit who aren’t
members of unions, based on irrelevant considerations (or ethnicity)
- However, doesn’t force union to amend constitution to say, you can’t discriminate by
not letting blacks in the union in the first place
- Canada: human rights legislation contains provisions preventing unions for
discriminating in membership

Union’s Duty of Fair Representation

- Only option for union members to complain about something their union has done
- In most provinces this duty extends only to the administration of the CBA but in BC
also to the negotiation of the CBA
- Any employee in bargaining unit can bring complaint, whether or not union member
- Forum: Labour Relations Board
 33
- Remedy available: order that union bring grievance or take whatever action
necessary to correct that which lead to the complaint

Content of the Duty

- Labour boards typically won’t let unions plead guilty
o If union missed limitation period for filing grievance, it’s still not a breach of
duty even if union was negligent
o Board will look at merits, must be gross negligence for the Board to find that
it was a violation of the union’s duty to employee
- Interpreted narrowly, in favour of unions
o Number of complaints is high, but complaints are screened, so that unions
aren’t dealing with frivolous grievances, very few go up the chain
o 98% of complaints fail, union will only pursue your interests 2% of the time
o BC s. 13 requires a pre-screening where the employee must show a prima
facie case before the employee can bring the complaint to union
 Cost to union is high, don’t want employee telling union, if you don’t
support my grievance, I’ll say that you violated duty of representation
o What causes so many complaints?
 Employee’s last option
 Costs them nothing
 Emotional: worker wants someone to fight against the injustice
- Duty is procedural and not substantive:
o The union must investigate complaint and treat it fairly (fair procedure), no
duty to achieve a certain result – can’t appeal on substantive basis
- In some areas (mental health), union isn’t equipped to decide to pursue grievance
- Many unions have policy that they grieve all dismissals
- Greater good argument: it’s a democracy, do what’s best for the majority (but also
want to protect minority rights)
- Sometimes, unions don’t proceed with grievances b/c it’s between two employees

How far should duty of representation extend? 3 approaches

1. Archibald Cox: duty is narrow: union should be able to decide which grievances to
proceed with, give them discretion to manage their own affairs (one extreme)
2. Summers: If individuals are paying for it themselves, they should be able to file
individual grievances, even if the union won’t support it (the other extreme)
3. Paul Weiler’s Middle ground: Unions have broad scope to decide which issues to
bring to arbitration… However, certain decisions that are so fundamental to
employees, that in a limited number of cases, like if an employee is fired, they
should be able to fight it, even without the union backing them (Canadian approach)

Human rights issues and the Duty

- Human rights code is automatically incorporated into collective agreements, so
arbitrators can interpret and apply human rights code in agreement
- Problem for unions: can put them in position of conflict of interest, between different
people in the bargaining unit
o E.g. sexual harassment of two people within the bargaining unit, does the
union take the side of the accused or accuser?
o E.g. Duty not to discriminate b/c of disability rights and seniority rights
 34
- Duty to Accommodate: in order not to discriminate on basis of disability, duty on
employer to accommodate disabled so there’s no undue hardship
o E.g. employer can’t argue, we treat all workers the same, so no one gets a
wheelchair ramp – even if they’re all treated equally, it’s undue hardship

Central Okanagan
- Duty to Accommodate is tripartite: employee has duty to facilitate employer with
accommodation, and union is also bound by duty to accommodate
- Q: what if employee says, in order to accommodate my disability, I have to be
moved from my laborious lifting job to a cushy desk job… Problem: disabled person
is asking for the job that you’d get if you had seniority!
- Duty of fair representation is more robust where human rights issues are involved

K.H. v. CEP Local (1997 Sask. Labour Relations Board)

- KH had depression, after progressive discipline KH was dismissed. Union didn’t
grieve dismissal b/c KH refused to submit to medical exam. KH filed DFR complaint.
- Duty of fair representation requires more than treating disabled or mentally ill
workers like anyone else, in a standard fashion (fair, unbiased procedure)
- Unions must take into account employee’s disability, even if employee fails to assist
- Unions may have to do something differently (more onerous) if griever has
disability, can’t just apply standard they’d use for a regular worker
o How is the union supposed to take his disability into account?
o Good faith duty on union to get expert advice, make a reasonable attempt?

Lavigne v. OPSEU (1991 SCC)

- Lavigne not union member but Rand formula required him to pay dues. He argued
that that violated his rights of freedom of association, expression b/c dues were
used to force him to support and associate with political causes, political parties
- Held: S. 2d includes right not to associate, but it wasn’t violated
o Lavigne is free to express himself & oppose the very groups that he’s funding
o Unions help their members when they engage in political activity
o Distinction between union and political activity is artificial
o Labour is not a commodity: people have a right to dignity in working lives,
union activity can enhance that dignity
o Letting unions support causes is part of the democratic process
- Unions have a lot of options re: supporting political causes
Is it right that a worker can’t have a say in where their dues are spent?
o Like arguing that you don’t agree where your tax dollars are being spent
o If you’re a religious objector (your religious beliefs are contrary to joining a
union), you can get exemption in some provinces, including BC
o Is it right that people are forced to join a union at all? Either an employer has
control over you, or the union does.

R. v. Advanced Cutting and Coring (2001 SCC)

- Issue: Does the legislation forcing everyone in a certain profession to join/associate
union in “closed shop” system violate Charter rights?
- Held: security clause “closed shops” are constitutionally valid, no Charter violation
 35
- S. 2d protects right not to associate, but legislation upheld as s. 1 reasonable limit
- Doesn’t amount to coercion, it’s a legitimate way of organizing an industry

Employment Standards Legislation

- Many statutes directly regulate employees:
o Workers’ Compensation Act, Occupational Health & Safety Act, Human
Rights Code, EI Act
- ESA: legislation that sets basic floor of rights for wages, hours, stat pay, holidays
- Non-unionized workers don’t bargaining power over terms and conditions of
employment, so at least protected by legislation (for many, that’s all they get)
- Unions are bound by legislation: sometimes it’s all they can get, if the union is weak
- Enforcement of ESA is weak, government hasn’t put energy or money into it
- Hard for current employee to argue that he’s entitled to more breaks
- Some violations can be pretty egregious e.g. not paying overtime
- If employment standards are too good, people won’t want to join unions
- All details (real info) are in Regulations
- Lots of occupations are excluded, so not really a comprehensive “floor of rights”
- Can ask for a variance to be granted (to get out of legislation)
- Ontario: employer and employee can opt out of regulations, statutory rules
- ESA S. 3: you can contract out of certain provisions, but not minimum wage
Jobs that are exempt from ESA
- Lots of groups are excluded from minimum wage in the ESA at both ends of the
spectrum: either tend to make way more than minimum wage (lawyers as self-
regulating profession), or way less (sitters, farm workers)
- People who provide care services for disabled, children, Live-in home support
worker, Attendant worker, Sitters
- Terms of employment are negotiated, wholly excluded from statute
3 Things to Ask:
1. Is the person claiming the violation of the ESA an employee? (Becker Milk)
2. Is the employee excluded from the operation of the ESA? (Renaud)
3. Has there been a violation of the Act? Check regulations, if variance was issued

Re Becker Milk Co. (1973 OESA designee)

- Convenience store argued managers were independent contractors, not employees
- ESA S. 1 Definition of employee: person who receives or is entitled to wages, in
training, on leave… lots of categories, broad definition
- Factors: control, chance of profit, risk of loss, ownership of tools

Re: Renaud (1999 BCEST)

- Renaud hires Spivey to care for him 3 days a week, 24 hours per day, but only paid
for 13 of the 24 hours, and for the rest of the time she’s “on call” but generally, she’s
not required to work during that time. After 5 months, Spivey argues, violation of
ESA: she was entitled to being paid for overtime for anything over 8 hours per
shift… this worked out to $27,000
- Held: Spivey is a sitter, not employee, so not entitled to overtime
- Spivey argues: the definition of “sitter” is meant for regular babysitters, not regular
caretaker job… plus, I’m stuck there for 24 hrs, I should be compensated
 36
Termination of Employment
- ESA: If you’re terminated without notice, you’re entitled to termination pay
- Less than what you’d be entitled to at common law, but at least it’s something
- Most frequently collected benefit under ESA: more likely to go after employer after
you don’t work there anymore
- Federal employees (airlines, post office) labour relations governed by Canada
Labour Code, which provides you with adjudicator if wrongfully dismissed
- If you’re unjustly dismissed, adjudicators have the power to require:
o Compensation
o Reinstatement
o Any other “like thing” that is equitable

Slaight Communications v. Davidson (1989 SCC)

- Davidson was dismissed and applied under the Canada Labour Code to have his
dismissal reviewed. The adjudicator appointed under the Code found D was
unjustly dismissed and ordered $89,000 in compensation. Also, damaged
reputation, so adjudicator ordered employer to give Davidson a recommendation
letter describing when he worked, sales record. If future employers called, employer
couldn’t give an opinion, just say, see the letter. Employer argued: violated free
speech to compel the letter, restrict what they can say about the employee
- SCC: objective part of the letter isn’t patented unreasonable, doesn’t violate
freedom of expression 2(b), but gag order was patently unreasonable, quashed
- Distinguished from National Bank, where employer was ordered to send a letter to
all employees – that remedy was found to be punitive, can’t make employer say
things in letter that they don’t believe
- In this case, employer can say factual things, as long as it’s not unfair

Avenues to Address Employment Discrimination: Charter, Human Rights Act, Tort

- Structural or systemic inequality on basis of race, gender, sexual orientation
- Unions have history of replicating patterns of discrimination
- How can we legally address these patterns of inequality?
1. Charter
o S. 15(1) can’t discriminate on enumerated and analogous grounds
o S. 15(2) affirmative action isn’t discriminatory
o Limitation: Charter doesn’t apply to non-governmental employers (only
applies if there’s a piece of legislation that’s being challenged)
2. Human Rights Legislation
o Code gives individual remedy in private context (between individuals) if
there’s a violation, discrimination of employment
o Limitation: list of enumerated grounds is closed, doesn’t recognize analogous
grounds, they have to be added by legislature
o Ineffective: in practice, human rights commission has limited resources,
procedural problems, long delays
o BC has restricted what the Human Rights Commission can do – can apply
directly to tribunal, to avoid the delays
3. Tort law (civil action)
o Claim under existing cause of action (if you’re wrongfully dismissed b/c of
 37
disability), may be able to use that to address the issue of inequality in tort
o Limitation: there’s no tort of discrimination (Bhadauria), must use human
rights legislation
o Honda v. Keays: employee argued, he was dismissed b/c employer failed to
accommodate his disability… results TBA
o Can’t sue in tort for sexual harassment (discrimination)
o If you are fired for discrimination you can sue but the employer can just pay
the damages you would be entitled to and then you would have no action
(because all an action for wrongful dismissal gives you is reasonable notice
for termination and you got that)
o You can never get reinstatement

Formal vs. Substantive Equality

- Formal Equality
o Remove formal (obvious) barriers to accessing employment
o US: laws used to say, women and blacks can’t work, or get paid less
o Idea that individual merit will determine who gets the job
o Not enough to deal with deep rooted, systemic inequality
- Substantive Equality
o Focus on equality of outcomes, effects
o Look for remedies if racial/gender composition in an industry doesn’t match
composition of society
o Affirmative action
o Sexual harassment law is meant to produce substantive equality
o Reflected in how we deal with human rights violation in workplace

Direct vs. Adverse Effect Discrimination (and Employer’s Defences)

Direct Discrimination
o Some rules in workplace directly discriminate on worker (e.g. we don’t hire
women for this job)
o Defence: employer must show that requirement is bona fide occupational
requirement (BFOR), necessary part of the job
Adverse Effect Discrimination
o Rules that are neutral on face, apply to everyone, but have discriminatory
impact (so more problematic discrimination)
o E.g. physical fitness test will exclude disabled people
o Defence: employer must show that they met their duty to accommodate to
the point that any further accommodation would constitute undue hardship on
employer (more onerous duty on employer)
- Both types violate Human rights legislation
- However, sometimes it’s ok to discriminate: must assess employer’s justification
- Problem: hard to apply rules, sometimes question of whether something’s neutral
on its face is in dispute
- Q: Is mandatory drug testing direct or adverse effect discrimination?
o Employer wants it classified as direct, b/c they can argue it’s a BFOR that
you’re not on drugs while at work
o Union wants it to be considered adverse effect, b/c employer would have
 38
duty to accommodate (more onerous)
o Courts: testing does not measure impairment so invalid, alcohol testing is ok

BC v. BCGSEU (The Meiorin Grievance) (1999 SCC)

- Physical fitness test: direct discrimination or adverse effect discrimination?
- Rule is neutral on face, but has adverse effect on women – so duty on employer to
accommodate to the point of undue hardship
- Employer wanted it to be considered direct discrimination, argue BFOR
- SCC: distinction between 2 types of discrimination is artificial
- Once employee makes prima facie case of discrimination, employer must show, on
a balance of probabilities, three things:
1. Standard/test adopted for a purpose that is rationally connected to job performance
(general purpose for having standard)
2. Good faith: employer had honest belief the standard/test was necessary to secure
that purpose
3. Standard/test is reasonably necessary to meet that purpose
o Meiorin failed part 3: Standard that looked neutral on its face was developed
in discriminatory way!
o Meiorin was able to do the job, which suggests the standard was wrong
o It didn’t determine the minimum that was required to do the job, just
measured the average across all subjects, both men and women
o Women’s bodies function differently, which may explain why Meiorin can do
the job even though she can’t run in 11 minutes
- Not enough to create a standard, then trying to include people in it
- Accommodation isn’t enough, need to transform the standard or rule, and see if it
was fairly developed and whether the standard or rule needs to be there at all
- Physical fitness test is fine, but careful how you set the standard

Vriend v. Alberta (1998 SCC)

- Vriend fired b/c he was gay, but sexual orientation wasn’t enumerated ground in
Alberta human rights legislation, so he challenged legislation as violating Charter s.
15, which includes sexual orientation as analogous grounds
- Held: legislation omission (under-inclusive) is discriminatory, therefore ultra vires
- SCC rejected formal equality b/c it’s denial of equal protection under the law
- S. 1 analysis: no pressing and substantial argument not to include sex orientation
- Is wrongful dismissal actionable? Hard to say, after Bhadauria – not possible if you
argue that that’s why you weren’t hired, but what about protection against
harassment, unequal wages, if it’s not enumerated ground in human rights law?
- Other non-enumerated grounds: obesity, gender identity, criminal background

Employment Discrimination
- Worker has no claim in common law for wrongful dismissal if they got reasonable
notice and termination pay
- Result: must rely on human rights legislation (with its closed list of grounds and
slow, convoluted process, overburdened tribunals)
- Unionized employees must bring complaint of discrimination before arbitrator
(internal remedy) before going to human rights tribunal (collective agreement can’t
be contrary to human rights code, so the code is implied in the agreement)
 39
- To argue discrimination, need to show it’s class based, only happening to women,
homosexuals etc.

Grounds for Discrimination: Sex

- Failure to hire/promote b/c she’s a woman – simple direct discrimination, b/c
motivated by employee’s biology
- Complex: things that affect ability of women to achieve equality in workplace
- Sexual harassment: Definition includes both explicit propositions as well as creating
a hostile work environment (more passive, like telling sexist jokes)
- Can bring human rights complaint against individual harasser and against employer

Bliss (1979)
- Lower benefits for pregnant workers not sex discrimination b/c all pregnant persons
were treated the same, rule didn’t differentiate between pregnant people

Brooks v. Canada Safeway (SCC)

- Pregnancy discrimination is still sex discrimination
o only women become pregnant, it’s specific to their gender
o unfair to make women bear all the social costs of pregnancy
o reproduction is important, benefits society as a whole
o not every member of the group need to be targeted for the act to be
discriminatory
- Safeway’s analogy to “no beards” rule trivialized reproduction, not equivalent b/c
there’s a link to history of oppression and discrimination of women in the workforce
- Post-Brooks: human rights codes added pregnancy discrimination
- Related discrimination cases: accommodating breastfeeding in workplace, childcare

Janzen v. Platy Enterprises (1989 SCC)

- Sexual harassment doesn’t have to happen to all women (the whole class) to be
sex discrimination, b/c it’s still sex based, even if it’s personal to one individual
o It’s affront to their dignity that denies equal employment
o Context is inequality in employment: harassment contributes to inequality b/c
it forces women to tolerate working conditions, denies them equal opportunity
- Dickson: only women can be harassed by heterosexual men so it’s sex
discrimination – but it’s a misunderstanding to categorize sexual harassment as
only sexual advancements b/c there’s sexual desire

Shaw v. Levac Supply (1991 Ont. Bd. Inq.)

- Harassment involving name calling based on weight is sex discrimination
- Implying that one is unattractive is just as sexual as implying that they are… and the
name calling is b/c she’s a woman so it’s sex discrimination, not harassment
- Issues: Is mocking someone’s weight sex discrimination? Do we look at the intent of
the harasser or the discriminatory effect? Is it just bullying or personal harassment?
- If we only have bullying laws, does that swallow up all sexual harassment
complaints too?
- Sex discrimination: b/c it’s sexual? b/c it only happens to women? Neither is
satisfactory
 40
Grounds for Discrimination: Disability
- Distinction between the few disabled people who have good employment (and are
able to claim rights) and the vast majority of disabled people who have trouble
getting jobs at all, or if they do get work, they are low paying and part time
- Most cases involve people who weren’t disabled to start, but became disabled, so
they were entitled to benefits
- Mental disability can be more complicated than physical disability
- Often the dispute is over at what point undue hardship is reached

Shuswap Lake General Hospital v. BC Nurses’ Union (2002 BCCA)

- Lockie is a nurse that develops bipolar mood disorder. She has an episode at work
and makes a bunch or errors. She takes leave, gets treatment and returns to work
but a couple years later she has another episode and becomes very agitated about
a patient’s care. Takes leave, gets treatment. Employer says she can return if there
is assurance that she will never have another relapse. Doctor can’t promise this.
- Held: for union, employer failed to meet duty to accommodate
- Mental disability: at what point was “undue hardship” reached, and duty to
accommodate been exhausted?
- Apply Meirion test framework and rejects the safety argument:
o Nature of the workplace: the RNs work in teams of healthcare professionals
where she can be observed by others, support workers are right there
o Co-workers can be trained to spot risks, episodes
o Lockie was cooperative with treatment regime, receptive to colleagues telling
her, you need to stop working, you’re having an episode
o Employer’s standard is too stringent: can’t demand absolute safety for
patients, but there’s always a risk of nurse error, regardless of mental
disorder… haven’t shown that the risk of hiring her back is unacceptable
- Risk isn’t removed absolutely but doesn’t matter
- Effect on patient safety was minimal, medication error was
- What is undue hardship? Bar is set very high

Union’s Duty to Accommodate

- Primary duty on employer, but union also has duty to accommodate
- Duty to accommodate also falls on worker – should this be a requirement?
- How about individual autonomy? Rights of disabled to stay the way they are? What
if the person doesn’t feel disabled?
- US: if you can get treatment, you’re not disabled and entitled to accommodation
- Canada: not as aggressive approach, can’t force someone to get surgery, treatment
o Exception: drug and alcohol treatment programs are required

Central Okanagan School District v. Renaud (1992 SCC)

- Renaud required to work on Friday evening, but can’t b/c of religion. The school
board will offer a different shift, but the union refused to consent. R filed complaint
against employer and union under human rights act for failure to accommodate.
- Union has duty to accommodate employees, can’t contract out of duty, can’t strike
collective agreement that doesn’t accommodate religious beliefs or disability
- Conflict between seniority and accommodation
- Test for determining whether duty to accommodate would cause undue hardship:
 41
o Look at how it affects other employees
o Need substantial interference with the rights of other, more senior employees
- Would it cause resentment among other employees to give special treatment to the
guy with the back problem or the guy who can’t work on Saturdays?
- How do we resolve this problem?
o Prioritize certain claims to allow people to access the workplace
o Problem: the standard wasn’t the same when statutory holidays were
created, it only accommodated Christian holidays (think Meiorin: employer’s
test for justification, must re-think standards from the ground up)
o Disability: must recognize that otherwise, it would exclude disabled from
structure of workplace
- Formal equality: attractive, b/c basic notions of fairness, but not always ideal
- Ask: is there a way to organize things to take into account everyone’s observances?

Globalization of Labour
- Globalization of labour isn’t new, but it has accelerated with technological advances
- Capital is mobile, many jobs have left for Asia, India, not just b/c of economics,
wages – there’s a legal dimension to it, laws in jurisdiction constrain what
companies can do and how they’re enforced
o Mexico has really good labour laws but they’re not enforced
o Wages, working and environmental conditions, contamination of soil, air
- Workers are also migrating to where the work is
- Globalization has the effect of depressing wages in Canada, b/c must compete with
wages overseas – as a result, people are working more hours
- Are there benefits? Are the costs of living declining? No:
o We’re producing cheap, crappy quality products with low safety standards
o Prices aren’t getting cheaper, Wal-Mart’s getting richer
- Agriculture: trade-offs are more complex
o Movement towards locally grown food, buying seasonal foods has been
attacked by farms in Africa that are supplying the European market with
organic foods that are hand-grown without machinery, pesticides
- Globalization has meant the decline of unionized jobs b/c the types of jobs that the
union model was based on (industrial shop, working all your life in factory for single
employer) are gone, and so private sector unions are gone too
- Temporary workers: import farm labourers, domestic workers (can sometimes apply
for permanent residence), construction workers b/c we can’t find Canadian workers
to do the work here (or b/c the conditions are so bad, Canadians don’t want jobs?)
o Employees in South America hired to work on Canada Line. Union
complained that they were being paid less than Canadian workers. Unfair
labour practice? Board said, no – they got fringe benefits (motel rooms, flight
home, calling cards) had to be factored into their wages. Union brought
complaint before human rights tribunal.

What role does the law play in achieving ideal labour conditions?
- Domestic statutory regulations are supposed to guarantee some conditions
o but are these laws enforced? Are there resources to enforce them?
o Laws that promote unionization, to help produce some outcomes
 42
- Imposing international working standards
o ILO, bi- and multi-lateral treaties, NAFTA
o NAALC: any union or worker can bring a complaint to the tribunal alleging
that anyone else, in any country, isn’t living up to their domestic standard
 Canadian union can complain that Mexican factory isn’t complying
with Mexican law
- Problem is enforcement: tribunal can issue opinions, but no power to enforce
- Government’s spending policies have an impact on whether we can achieve ideal
working conditions
o E.g. can’t make child care a law, but can change how it’s taxed
- Problem: not all work is meaningful, it’s just crappy, hard work, so where does that
fit in to vision of ideal labour market? Do we accommodate those people, let them
find fulfillment elsewhere?

Arthur article
- Domestic and international law is fine, but they’re limited in what they can achieve
- 3rd level of possible regulation: Local law of the workplace itself
o In the absence of a treaty obligation or statutory provision, law is made in
informal sense in the workplace every day

International Labour Organization

- Founded in 1919, arose out of people’s experiences with a large disaster
- Link between poverty (economic instability) and war/instability
- Instrument to secure peace through prosperity
- 1946 ILO became first standing body of UN
- Members of ILO had to sign onto statement of principles
Fundamental aims and purposes of ILO (1944):
1. Labour is not a commodity to be traded in market to make a profit, it’s people
2. Freedom of expression and of association are essential to sustain progress
3. Poverty anywhere constitutes a danger to prosperity everywhere; there’s a
connection between poverty and war, affects everyone globally
4. Every nation has obligation to fight “the war against want”, and do it in democratic
way, involving employers and workers
Features of the ILO:
- Tripartite structure: each member state sends representatives from government,
workers groups, and employers
- Binding documents that member states ratify, as well as softer recommendations
- Sub-committees, including the Freedom of Association committee, which deals with
complaints from unions that governments haven’t respected the principles of
freedom of association
- Problem: where do we set employment standards? How detailed should they be?
o If you set the standards too high, you won’t have any members, but if it’s too
low, why bother rubber-stamping existing, poor standards?
o Solution: require member states to have a minimum wage and what to base
it on, but don’t set a number b/c it will vary between states
- Critics: ILO has lots of conventions, everyone signs on, but ultimately they have no
power to compel change
- Criticism has heightened considerably as other organizations IMF, World Bank,
 43
WTO have gained more prominence – they have real sanctions, real incentives
- Yet ILO has different objectives: WTO wants to limit trade barriers, but ILO can be
seen as a barrier
- Issue: should the WTO adopt policies about the role of labour standards?
- Mid-1990s: The trade body organizations decided in Petar Declaration that they
didn’t care about incorporating labour standards in their documents, but instead
reaffirmed support for the ILO (disingenuous b/c they know the ILO has no power)…
and Declaration said that labour standards should never be a barrier to trade
- ILO can either back down and admit defeat in global market, or can hold the trade
bodies to their word, try to exercise power
1998 Principles of the ILO and Declaration on Fundamental Principles and Rights at Work:
1. Freedom of association and collective bargaining with unions
2. Eliminate forced labour
3. Effectively eliminate child labour
4. Eliminate employment discrimination
- ILO doesn’t only play adjudicative role:
o It has a huge role in doing research, gathering statistics on global labour
o If funds programs on the ground to achieve these goals, promotes rights
- We shouldn’t discount these roles, and let’s remember, decent work (with
fundamental conditions) leads to peace, stability
- Decent work agenda: doesn’t really care about how meaningful the work is, but
focus on issues of hours, equality, income, security of employment
- Think about principles and what they mean domestically for Canada
Freedom of Association Committee
- 3 part committee that receives complaints that states aren’t living up to standards
- Response to deal with violations: issue reports against the government
- Canada: labour relations are generally within the province’s jurisdiction (other than
Federally Regulated Industries), but the ILO only deals with member states, so a
complaint is brought against Canada, not against an individual province… So
Canada appears to respond, they take the recommendations but don’t have power
to do much about it
- Why is Canada 2/3 of the Committee’s report? Why are there so many complaints
by unions against Canada?
o High expectations on us
o Unions in Canada are powerful and large, bring complaints
o We’re transparent
o Lots of pending legislation, recognition that the ILO’s recommendations
aren’t law but important guidelines – it’s a recruiting tool, ammunition tool
 SCC relies heavily on ILO principles, obligations, international norms
when making decisions
o Get public sympathy
o Time in Canada when we’re undergoing economic dislocation, conservative
governments are replacing social democrats, changing labour laws

2001 complaint against Ont. Federation of Labour

- Provincial statute from 1995 required that all unionized employees had to be told
what the procedures were under the Act to decertify the union, had to post that info
in workplace, distribute to workers annually. Unions complained that this violated
 44
Canada’s commitment to ILO. Government argued, they’re distributing neutral
statutory facts, and lots of unionized workers may not realize that decertification is
an option.
- Problem: no corresponding obligation to inform non-unionized workers about
statutory rights to unionize, steps to take, protections in the Act for being in union.