Duty to Bargain in Good Faith

1
Duty to Bargain in Good Faith

• Chapter 8
• This is the duty that polices the negotiation of
  collective agreements
• Theme Tension between Voluntarism and Coercion
  in Industrial Pluralism

2
Statutory provisions

• s.47 notice to bargain
• s.11 ULP for failing to bargain in good faith and
  make all reasonable efforts to achieve a
  collective agreement
• s.45 freeze on terms and conditions of during
  bargain for 4 months or until collective
  agreement completed. However, board can give
  approval for change (s.45(3)) and employer can
  dismiss and discharge with proper cause (s.45(4))

3
Statutory Provisions cont

• Remedies s.14(4)(a),(b), and (f)
• s.55 first contract arbitration
• Mandatory terms
• s.53 joint consultation
• s.54 adjustment plan

4
Duty to Bargain in Good Faith

• Purposes of Duty
• Gives effect to recognition of union as exclusive
  bargaining agent
• Promotes dispute settlement
• General Content of Duty
• Bargain in good faith and make reasonable effort
  to reach a deal, but no duty agree to any
  particular terms
• 2 components of the duty
• Good faith subjectively honest
• Reasonable efforts to conclude a collective
  agreement

5
Problems

• Good faith distinguishing between surface (bad
  faith) bargaining and hard (bad faith) bargaining
• Reasonable efforts distinguishing between
  unreasonable conduct and unreasonable contents

6
Noranda 1974 BC Board 8-8

• Anomalous case raid situation, radical
  nationalist union
• General approach to good faith in situation of
  collective agreement renegotiation Board takes
  a hands off approach

7
Radio Shack, OLRB, p.8-9

• First collective agreement
• History of egregious ulp
• Intransigent stance on dues check off is ulp
• Look at range of remedies substance, process,
  and damages

8
Royal Oak Adjudicative Minimum Standards

• Two components
• Duty to bargain in good faith - subjective
  standard
• Duty to make reasonable efforts - objective
  standard
• A refusal to incorporate standard leads to
  inference that not making reasonable efforts
• Free collective bargaining is cornerstone of
  labour relations but in some circumstances the
  Board may impose a remedy even if the
  consequence of the remedy is to put an end to
  free collective bargaining. (para. 98)

9
Disclosure

• Noranda employer must disclose facts upon which
  proposals are based
• Jackman union must give reasons for rejecting
  standard collective agreement in industry (note
  this is a construction case)

10
Disclosure cont

• Westinghouse Employer duties include
• Disclose decisions already taken
• Respond honestly when asked about plans under
  consideration, but no duty to disclose on own
  initiative
• Consolidated Bathurst
• Rebuttable presumption that decisions affecting
  job security announced in period after signing of
  CBA were made earlier and ought to have been
  disclosed

11
Remedies for Breach of Duty to Bargain in Good
Faith, s. 14(4), p.8-28

• Typically cease and desist
• Sometimes bargaining order offending party is
  directed to draw up a complete set of proposals
  for a collective agreement
• Radio Shack make whole including order re
  specific terms, damages for cost of organizing to
  trade union, damages to employees for loss of
  opportunity to be represented posting notices
• See the extensive remedies ordered by the
  Manitoba Board I Buhler Verstile (2001) at p.
  8-28-29

12
Legislative Responses

• Mandated terms
• s. 53 Joint consultation - if either party
  requests, a collective agreement must provide for
  consultation committee
• S.54 Adjustment plan if employer introduces or
  intends to introduce a measure et that affects
  the terms, conditions or security pf employment
  of a significant number of employees to whom the
  collective agreement applies must give the union
  60 days notices and attempt to agree to an
  adjustment plan

13
First contract arbitration s.55

• What is purpose what are requirements what is
  effect?
• Purpose trial marriage
• Requirements
• Formal requirements certified trade union (not
  voluntarily recognized) and strike vote (s.60)
  taken
• Substantive requirements
• London Drug 1974 p.8-30
• ULP
• Problem did not work. In such situations unions
  were unable to achieve a second collective
  agreements

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First Contract Arbitration s.55 cont

• Yarrow Lodge 1993, p.38-32
• Bad faith or surface bargaining
• Employer conduct short of bad faith that
  indicates a refusal to recognize
• Failure to make reasonable and expeditious
  efforts to achieve a collective agreement
• Unrealistic demands or expectations
• Bitter or protracted dispute
• NB no longer need to establish a ULP before first
  collective agreement can be imposed

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First Contract Arbitration cont

• Mediator appointed
• Parties must exchange a list of disputed issues
  and positions on those issues
• If no collective agreement achieved within 20
  days the mediator must recommend terms or process
  for concluding collective agreement
• Recommendation can include first contract
  arbitration

16
Effect of application for First Contract
Arbitration

• Dont impose cadillac agreement
• Depending upon ease with which first collective
  agreement is imposed it can facilitate the
  achievement of a second agreement according to
  the Ontario data