BC LABOUR

RELATIONS
CODE
 2. Lecture Overview
1. Labour Law Jurisdiction
2. Labour Relations Code
3. Role of Labour Relations Board
4. Excluded Employees
5. Unfair Labour Practices
6. Certification of Trade Union
7. Fair Representation + Decertification
8. Duty to Bargain in ‘Good Faith’
9. Disputes & Resolution
10. Collective Action + Limitations
11. Final Thoughts
 3. Labour Law:
Federal or Provincial?
Is labour law regulated under federal or prov.
jurisdiction? Both
• 11 labour codes in Canada: 1 for each province
• BC: BC Labour Relations Code
Applicable? Non-federal industries
 Disputes? Via BC Labour Relations Board
• 1 for federally-regulated industries/jurisdiction:
 Canada Labour Code (see next slide)
 Adjudication? via Canada Industrial Relations Board
e.g., in Vancouver
•Look in Canadian Constitution (Sections 91 + 92) to see
whether particular industry is regulated by provincial
or federal law [e.g. prov. vs federal industries]
 4. Examples: Federal & Provincially-
Regulated Industries
• Federally regulated industries: Canada Labour
Code Applicable per s. 91 of Constitution
 Banking; Telecommunications; Inter-provincial commerce
e.g., trucking, Air travel
 Criminal laws; Postal service; Defence; First Nations;
Taxation
• Provincially regulated industries: BC Labour
Relations Code Applicable per s. 92 of Constitution
 Education; Health care; Prisons; Provincial taxation;
 Administration of justice; Property & civil rights; Natural
resources [rational: LRC]
5. Rationale for Labour Relations Code

1. Regulate inevitable conflict between

employers & employees

2. Belief that employee input into

managerial decisions (via unions +
collective bargaining) benefits
employees and society [key assumptions]
 6. Key Assumptions

• Unions + employers given

autonomy to create collective
agreements that meet their
own unique needs

• Belief that unions + employer are able to

(usually) resolve their own disputes
[remedies via LRB]
 7. Labour Relations Board: ‘LRB’
Certification & Disputes
If Labour Relations Code (‘the Code’) is
violated, LRB can order:
1. Violator to “Cease & Desist” violating the
Code
2. Payment of money
3. Reinstatement of wrongfully discharged
employee
4. Any other appropriate order [excl. employees]
 8. Excluded Employees x2:
May not Join Trade Union
Certain employees are excluded from
collective bargaining rights:
(1) Managers: Those who can “discipline”
and/or have right to “fire” employees

(2)Those who work in confidential

labour relations jobs e.g. financial
managers; access to confidential info
[unfair LP]
 9. Unfair Labour Practices
Conduct of employer & union prohibited by the
Code is an unfair labour practice AND
• Conduct by managers + union officials prohibited
• All employees are prohibited from interfering with
rights of employees to join a union
Employers may not discipline /lay off
employees during union certification process
except if:
 Dismissal/ termination for just cause
[employer may communicate ideas re TU]
 10. Employers’ Rights to Communicate
• Employers entitled to communicate their
views on their business + how
unionization may affect their business
• However, they must “not use
intimidation or coercion”
• Above rules also apply to
unions + employees
[certification: 3 questions by LRB]
 11. Certification:
Requirements
Before granting certification, Labour
Relations Board must answer/ determine 3
questions:
1. Is applicant union a true union (not
dominated by employer)?
2. Is employee group appropriate for
collective bargaining?
3. Is there sufficient employee support for
the union? [appropriate bargaining unit]
 12. Appropriate Bargaining Unit

• Def.: An employee group determined by the

Labour Relations Board (LRB) to be
appropriate for collective bargaining
•Determined by extent employees share a
“community of interest” with one another
E.g.: - Similar skills + duties + working conditions
- Physical + admin. structure of the employer
- Functional integration
- Geography etc. [req. for cert]
 13. Certification Process
1. 45% or more employees in proposed bargaining
unit must sign union cards
2. Union applies for certification to LRB
3. Wages + employment terms ‘frozen’ while
application is pending
4. Secret ballot representation vote held to
determine true wishes of employees
5. If majority (at least 50% + 1) votes for union,
then LRB grants certification** [statutory freeze]
 14. During Certification Application:
“Business as Usual”

• While certification application is pending, an

employer is prohibited from making changes in
terms of employment:
 Referred to as a ‘statutory freeze’
•This means no unscheduled changes in rates of
pay or other employment terms/conditions can be
made during this period without the LRB’s
permission
[effect of certification]
 15. Effect of Certification
•Union becomes “exclusive bargaining agent” for all
employees in bargaining unit (whether or
not they are signed-up union
members)
• There are legal differences
between employees working
in non-union and unionized
workplaces
[diff: union vs. non-union wp]
16. Non-union vs. Unionized Workplaces
Non-union workplace Unionized workplace

Legal basis for Individual contracts Collective agreement

relationship of employment
Terms of employment Individual employee The union
contract negotiated by:

Nature of Possibly unique for Identical for all employees

employment terms each employee in the same job class
covered by collective
agreement

Process to resolve Court action/ HR Grievance+ arb. process

disputes Tribunal/ ES Board per col. agreement
 17. Duty of Fair Representation
• Union’s right: Exclusive representative of all
employees in bargaining union
• Union’s duty: It must represent all
employees fairly + in good faith (re
negotiation + administration of collective
agreement)
However:
• Does not mean that all employee demands
must be placed on bargaining table or all
grievances taken to arbitration [decertification]
 18. Revocation of Bargaining Rights:
Decertification
•Decertification
Def.: Procedure for terminating union
certification

•If successful, union removed

as bargaining agent

• Collective agreement
becomes void
[decertification process]
 19. Decertification Procedure
1. At least 45% of employees sign
decertification application
2. Employees apply to LRB
3. Secret ballot representation vote
held to determine true wishes of
employees
4. If majority (at least 50% + 1) votes for
decertification
5. LRB grants decertification [reason for union repres]
 20. Main Reason in Having Union
Representation in Bargaining Unit?

• One of the main reasons in having a union

represent a bargaining unit is that the union,
as the bargaining agent negotiates wages +
other terms of employment with the employer

• In order to achieve this goal, good faith

bargaining is necessary [good faith barg]
 21. Duty to Bargain in “Good Faith”

• Legal requirement that parties sincerely

attempt to reach agreement
• A deliberate strategy to avoid
agreement is bad faith
bargaining
(an unfair labour practice)
[bad faith bargaining 11 acts]
22. Actions Deemed to Indicate Bad Faith

1. Surface bargaining: Pretending to bargain but

there is no interest to reach agreement
2. Refusal to meet the other party in early stages
of bargaining
3. Objectives to composition of a bargaining
team of the other party
4. Unlawful strike or lockout threats
5. Circumventing the union: Bargaining
directly with employees (cont.; x5)
23. Actions Deemed to Indicate Bad Faith

6. Failing to provide info relevant to

bargaining
7. Failing to explain bargaining proposals
8. Changing position without justification in
attempt to avoid reaching an agreement
9. Last minutes bargaining demands
10. Illegal demands: Demands contrary to
law [labour disputes: x 2]
 24. Labour-Management Disputes:
2 Basic Types - Very Important
(1) Disputes over content of new collective
agreement (Interest Dispute)
• Strike/lockout may occur + mediator may assist
parties
(2) Disputes over the meaning of current collective
agreement provisions (Rights Dispute)
• Grievance must be filed + may go before grievance
arbitrator
• Strike/Lockout may not occur [methods to resolve dispute]
 25. Methods of Resolving Collective
Bargaining Disputes X 4

1. Voluntary settlement
(with or without mediation)
2. Strikes or Lockouts
3. Interest Arbitration
4. Govt. legislation
(see last PP slide)
[mediation]
26. Method 1: Mediation - ‘Suggestion’
• Mediation uses “power of persuasion” to assist
parties to compromise (or collaborate) in order to
reach voluntary agreement
• Mediator cannot impose
Agreement; thus, non-binding
So:
•Mediation not always
successful in helping parties
to reach agreement [arbitration]
 27. Method 2: Arbitration - ‘Final’

•An arbitrator is empowered

to make a final +
binding decision in
labour disputes
• 2 types of arbitration:
Next Slide
 28. Two Types of Arbitration:
During CA Term vs. Negotiate For New CA
Grievance (Rights) Interest Arbitration
Arbitration
Resolves dispute over what Determine what contents/terms of
existing contract intends – new collective agreement “CA”
interpretation of provision (new contract) will be

E.g.: - Was a dismissal just? E.g.: - Wages / seniority / paid leave :

- Were seniority rules applied “What % wage increase will
correctly? firefighters get”?

- Very common: See also slide Uncommon: some in public services or

#31 if conclude 1st contract (new union)
 29. Strikes & Lockouts

Strike Lockout

Work stoppage Refusal by employer to allow

/slowdown (go-slow) by employees to work, i.e., :
employees acting with Lock entrance to premise
common purpose
Usually attempt to An attempt to compel employees
compel employer to to agree to contract terms
agree to terms of - Often during ‘go slow’ (def.?)
collective agreement or ‘work-to-rule’ action
(contract)
(def.?)
 30. Requirements For Legal Strikes
(1) Collective agreement has expired
(2) Union + employer have engaged in good faith
bargaining
(3) Strike vote was held AND
Majority of those who voted, favour strike action
(4) Written notice given to employer + Labour
Relations Board
(5) 72 hours pass since notice
(6) If mediator was involved, he/she confirmed
stalemate (unsuccessful mediation) BUT
- Not required in BC [no midterm strike/lockout]
 31. No Midterm Strikes/Lockouts

• While collective agreement

in force, strikes + lockouts
are prohibited
• As a trade-off for parties
losing access to ‘strike
weapon, grievance
arbitration is used as a
substitute [picketing]
 32. Illegal Strike - Defined
Illegal strike is striking (withholding of labour) without
complying with the LRC’s requirements:
 no vote was held or
 no/insufficient notice given to the employer or
 mid-contract: dispute must be referred to arbitration or
 required essential workers order in the case of strike
action by workers designated as “essential services
workers” is not yet determined: see Slides #49 - 50
• The union can be held vicariously liable if it remains
passive during illegal industrial action, i.e., strike or
picketing
 33. Illegal Strikes – Consequences
• Employer can approach BC Labour Relations Board (LRB):
request a determination that the strike is illegal
• LRB can order the union to stop the strike + order workers
to return to work via granting a “cease and desist” order
• Employer can claim compensation from union for losses
suffered by business.
• If the union + workers ignore the LRB’s order, the
employer can request the LRB permission to file the order
at the BC Supreme Court
• Union management, officials, shop stewards are
responsible for the conduct of its members
• Must take all reasonable steps in the circumstances to
bring the unlawful strike action to an end
 34. Illegal Strikes – Consequences
• The LRB’s orders has the effect of a court order
• If ignored, it amounts to contempt of court
• Union can be fined up to $10K + $1000 fine for each official
and striking worker
• Union leaders and workers who ignore BC Supreme Court’s
order, can receive:
 much higher fines,
 sequestration of union assets, and
 even imprisonment of key union leaders can ensue
• Employees who are participating in illegal strike action are
not protected: they can be disciplined or even be
dismissed
 35. Picketing:
Often During Strike Action
Patrolling near employer’s place of business
by striking/lock-out employees to:
(1) Publicize existence of
labour dispute, and
(2) An attempt to persuade
others not to work for or
do business with employer
[picket: where]
 36. Picketing
• Picketing may also take place at
any site employer uses to do
*work that is usually done at
its locked-out premises

• Pickets can follow the ‘work’

to any site to which the employer
moves that work, i.e., work referred to at
*above [picketing allies]
 37. Picketing Allies

• Ally: Someone /some organization

that assists employer in a lockout or
in resisting a strike

•If ally does work usually done by

the employer, ally may be picketed,
i.e., pickets may move to business of
ally to accomplish their picketing goal / spread their
message (see Slide #33) [secondary picket]
 38. Secondary Picketing – Def. & Law
• Recent Supreme Court of Canada
Decision has affected laws
that regulate picketing
• Secondary picketing?
Is picketing at a location
other than the workplace of
the striking employees
• Only violates the law if a ‘wrongful’
action is involved & at “non-ally’s” business
[2nd picketing in BC]
 39. Secondary Picketing in BC
• BC LR Code prohibits secondary picketing
unless striking union obtains declaration via LRB:
 2nd business has “allied “itself with the struck
employer i.e., changed relationship with busines as
to assist/ doing work normally done in business
•Thus: if 2nd business actions result in reduction of
economic pressure of strike, business is designated
“ally”; declaration allows 2nd picketing
• Difficult to avoid 2nd picket – see summary of
Canada Bread Co. decision (2017) BC LRB
[replacement labour]
 40. Replacement Workers:
“Scab” – See Slides #41 +42
•Also referred to as ‘strikebreakers’
•Employer can continue to operate its business at
struck/locked-out location by using managers +
other staff who are not part of the bargaining unit
of striking workers
• Employer can only use persons that usually work
at the struck/locked-out location itself
•Employer may not bring in employees from other
locations of the employer [prohibitions: replacement l]
 41. Replacement Workers: AKA
“Strikebreakers / Scab”
Employer is prohibited from using:

(1) Newly hired employees, or

(2) Employees who usually work in another

location of employer …

… to replace striking /locked-out employees

‘quote re scab/replacement worker’
42. The ‘Scab’ AKA ‘Replacement
Worker’ or ‘Strikebreaker’
 43. Issue of Replacement Worker Ban:
Opinions From Stakeholders
•Employers say: Replacement labour ban is
unfair since they have harder time to cont.
operations
•Unions say: Allowing replacement workers
reduces willingness of employees to unionize
AND
Unions say: Allowing replacement workers
tends to lead to more picket line violence
Opinion: Use of replacement workers
worsens employer-union relationship [Essential Ser]
 44. Essential Services:
Designated/Controlled Strike Model
•Those services important to public safety/health
or welfare
Include K-12 education /nurses
Strikes + lockouts still legal if
essential services except re * BUT:
 Restricted in scope
Note: *Firefighters + police have separate law
Essentially: Can’t strike – Interest arbitration is used instead
of strike/lockout if no agreement when between Govt. & *
• Doctors in private practice are not covered by Labour
Relations Code [Essential services: eg. Nurses – mediation]
 45. Essential Services:
3-Step Process to Resolve Dispute
E.g. of process if employer-employees
dispute + employees are rendering
‘essential services’
E.g.: Hospital nurses/ teachers
Step 1
•Mediator helps hospital management +
nurses’ union determine minimum level of
nursing services needed to prevent
•Immediate + serious danger to public
 46. Essential Services:
Step 2
Step 2
• If both sides reach agreement on minimum
service level, those services
are then designated as
‘essential’
• Some nurses/teachers could strike
but minimum service level must be maintained
by other nurses as to maintain essential services
[step 3]
 47. Essential Services:
Step 3
Step 3 (if needed):

• If the employer + union

can’t reach an agreement,
Labour Relations Board
will set essential services
levels
[rational for law re essential-services approach]
 48. Essential Services:
Principle Behind the Law
• Balance between access to ‘strike weapon’
(available to most unionized workers) and
• Public interest in maintaining public health, safety
or welfare, incl. K-12 education
However:
• Govt. retains right to ignore
its own essential services law +
pass ‘back-to-work’ laws BUT:
• Public sector employees can’t be denied access to
the collective bargaining process [FT]
 49. Final Thoughts
‘Strong, responsible unions
are essential to industrial fair play.
Without them the [labour] bargain
is wholly one-sided.
The parties to the labor contract must
be nearly equal in strength if justice
is to be worked out + this means
that the workers must be organized +
their organizations must be recognized by
employers as a condition precedent
to industrial peace.
—Supreme Court Justice Louis Brandeis (U.S.)