WDW 244H1F 2003W

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WDW 244H1F 2003W

• LABOUR RELATIONS
• Professor Frank Reid
• Centre for Industrial Relations
• Week 5
• Bargaining under the OLRA
• Course website http//individual.utoronto.ca/fran
  kreid

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Announcements Oct 9, 2003

• Part 3. Union Certification and Labour Relations
  Legislation
• - Week 5 Bargaining Under the OLRA
• Midterm Test next week October 16, 2003 (Week 6)
• - written in this classroom (SS2118)
• - One hour, approx 620 p.m. to 720 p.m.
• - Format essay style, e.g. answer 4 questions
  out of 5
• -may be choice of questions

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Legislative Regimes
Under the Liberal Government
Under the NDP Government
Under the Conservative Government

1985
1990
1995
2000
1993
Pre-Bill 40
Bill 40
Bill 7

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The Card System
The Vote System
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OLRA Restrictions on the CA
Statutory Freeze

• Statutory Freeze
• After a certification application has been filed,
  the employer cannot unilaterally alter terms and
  conditions of employment.
• Changes must be negotiated through a collective
  agreement
• A Collective Agreement (CA) is a written contract
  that sets out the terms conditions of
  employment for union members in a bargaining
  unit.
• Copy of the collective agreement must be provided
  to each member of the bargaining unit.
• The OLRA requires a minimum term of one year for
  the CA.

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OLRA No Strike / Arb Required

• No strike provision
• Strike or lockouts are not permitted during the
  term of the collective agreement
• Arbitration of grievances
• Disputes during the collective agreement must be
  referred to binding arbitration.
• Collective agreements are deemed to contain arb
  provision if one is not negotiated

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Duty of Fair Representation

• Duty of Fair Representation
• Once majority support is gained, union becomes
  the exclusive bargaining agent on behalf of all
  employees in the bargaining unit.
• Union has Duty of Fair Representation for all
  employees in the bargaining unit (both union
  members and non-members)
• union must represent members in a manner that is
  not arbitrary, discriminatory, or in bad faith.

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Duty to Bargain in Good Faith

• Duty to Bargain in Good Faith
• Requires parties to make every reasonable
  effort to conclude a collective agreement.
• Cannot refuse to meet with the other party
• Boulwarism prohibited
• Cannot take a position and refuse to budge (even
  if its a reasonable position)
• Surface bargaining is prohibited.

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Compulsory Conciliation

• Parties must meet with a Conciliation Officer
  before a strike can take place
• If an agreement is not reached, Minister has the
  option of appointing a tri-partite Conciliation
  Board, or issuing a No-Board Report.
• Cooling off period strike or lockout not
  permitted until 14 days after a no-board report
  is issued. (May be a heating-up period)

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First Contract Arbitration

• Negotiations for a first collective agreement can
  be difficult as parties are new to a collective
  bargaining relationship.
• When a union and an employer are unable to reach
  a first collective agreement, either party can
  apply to the Board for first contract
  arbitration.
• For example, the Board will grant FCA
• The refusal of employer to recognize unions
  bargaining authority
• The uncompromising nature of any bargaining
  position.
• The failure of any party to make reasonable or
  expeditious efforts to conclude a collective
  agreement.
• The outcome of the arbitration is the first
  collective agreement. Minimum duration of 2 years.

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Bill 40 Anti-Scab provision

• Bill 40 (NDP legislation) permitted picketing on
  quasi-public property
• Bill 40 also prohibited the use of replacement
  workers (scabs) during a strike
• Attempted to simulate a classic strike
  situation (i.e. workplace closed down during
  strike)
• Very controversial, but little empirical impact
  because few employers used replacement workers.

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Union Security Definition

• Union security
• A clause that states the requirement for
  bargaining unit employees to join the union and
  to pay union dues.
• Relates to the financial security of the union
  and union discipline of employees.

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Union Security Provisions

• Open Shop
• No requirements for union membership or dues.
• Agency Shop (Rand Formula)
• Employees are required to pay dues but not join
  union.
• Maintenance of Membership
• Requires employees who have joined the union to
  remain in the union.
• Union Shop or Modified Union Shop
• Employees required to join union once hired.
• Closed Shop
• Employees must belong to union before being hired.

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Prevalence of Union Security Provisions

• Membership Dues Prevalence
• Open Shop No No 16
• Agency Shop No Yes 30
• Maint. of Membership No Yes gt3
• Union/Modified Yes Yes 40
• (after hiring)
• Closed Shop Yes Yes 10
• (before hiring)

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Union Security Under OLRA

• OLRA provides compulsory dues checkoff (Rand
  Formula) as minimum union security.
• Rand Formula (1945)
• Devised by Mr. Justice Rand to end the Ford
  strike.
• Helped union growth by providing them with a firm
  financial basis.
• Avoid free-riders without imposing compulsory
  unionism.
• Union can negotiate higher level of security.

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Freedom of Association

• Freedom of Association guaranteed in Canadian
  Charter of Rights and Freedoms
• Includes the right to join (or not join) a union
• Lavigne Case (1991)
• Merv Lavigne employed at Haileybury School of
  Mines
• compulsory dues paid to OPSEU
• Ontarios Rand Formula provision was challenged
  as a violation of Freedom of Association
• Supreme Court of Canada upheld Rand formula using
  reasonableness test.

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Union Security Other jurisdictions

• In addition to Ontario, jurisdictions with
  mandatory Rand formula include
• British Columbia, Saskatchewan, Manitoba, Quebec,
  Newfoundland and the federal government.
• In the US, the 1947 Taft-Hartley Act gives states
  the right to create laws pertaining to union
  security.
• Right-to-work laws 21 American states have which
  make it illegal to negotiate a provision
  requiring employees to pay dues or join a union
  as a condition of employment.

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Right-to-Work States
In 21 states, legislation prohibits unions and
employers from negotiating certain union security
provisions including the closed shop, the union
shop and dues checkoff.
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Union Membership, etc.

• Union Membership
• The number of workers who are members of a union.
• Collective Bargaining Coverage
• The percentage of workers whose terms and
  conditions of employment are determined by
  collective agreements irrespective of membership.
• Union (Member) Density
• The percentage of non-agricultural labour force
  who are members of a union. (HRDC)

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Evidence on Free-Ridership

• Union CB Free-rider
• Density Coverage Extent
• United States
• RTW states 8.1 9.9 21.2
• Non-RTW states 16.1 17.6 8.8
• Canada
• Mandatory Rand 31.8 34.2 7.5
• Non-Mandatory Rand 24.4 27.2 11.9
• Reference Taras, D. A. Ponak, 2001 Mandatory
  Agency Shop Laws as an Explanation for
  Divergence, Journal of Labor Research, Vol. 22,
  pg. 541-568.

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Supply of Unions

• The opportunity to join a union depends on
• Type of industry and location of employment.
• Organizing strategy of the union that
  traditionally organizes any particular industry.
• The public-policy setting.
• The degree of employer opposition.

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Demand for Unions

• The propensity to join a union depends on
• Level of job dissatisfaction
• Perceived inequities.
• Lack of power in influencing workplace issues.
• The degree of union power.
• Preconceived views about unions.
• The ease in obtaining union services. (legal
  environment).

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Unionization Rates by Sector- 2002
Men (30.3) Older (40.8) Full-Time
(31.9) Big Firm (54.7) Manufacturing (30.4)
Public (72.5)
Women (30.2) Younger (13.5) Part-Time
(23.3) Small Firm (12.6) Accom.
Food (17) Private (18)
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Source Statistics Canada, Perspectives on Labour
Income, Autumn 2002
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Union Density by Province- 2002

• Overall 30.3
• British Columbia 33.8
• Alberta 22.4
• Saskatchewan 34.3
• Manitoba 34.1
• Ontario 26.6
• Quebec 37.0
• New Brunswick 27.2
• Nova Scotia 27.3
• Prince Edward Island 29.9
• Newfoundland 39.2

Source Statistics Canada, Perspectives on Labour
Income, Autumn 2002
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Trend in Canadian Union Density
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Reasons for Decline during the 90s

• Occupational / Industrial Shifts in Employment
• Changes in the Demographic Structure of the
  Workforce
• Reduction in Size of the Public Sector
• Globalization
• Legal Obstacles
• Employer Opposition in the form of unfair labour
  practices

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Trend in Union Densities US vs Canada
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Reasons for Can/US Divergence

• Changing structure of the economy and the labour
  force.
• A larger public sector in Canada
• US From the unionized North to the non-unionized
  South
• The legislative environment.
• Easier access to unionization in Canada.
• Higher management opposition in the US
• More costly to US employers.
• Employers innovative HRM practices in the US
• Reduction in public support in the US
• Efforts in organizing the unorganized in Canada