Employee Labour Relations in Canada: A Legal Update for Employers. Wednesday, May 20, 2015

Transcription

1 Employee Labour Relations in Canada: A Legal Update for Employers Wednesday, May 20, 2015

2 Speakers Moderator Gregory J. Heywood, Partner Roper Greyell Vancouver, British Columbia 2

3 Speakers Daniel R. Bokenfohr, Principal McLennan Ross Edmonton, Alberta Amy Bradbury, Associate Barteaux Durnford Halifax, Nova Scotia 3

4 Speakers Sundeep Gokhale, Partner Sherrard Kuzz Toronto, Ontario Cynthia Lazar, Associate Taylor McCaffrey Winnipeg, Manitoba 4

5 Speakers Ginger D. Schroder, Partner Schroder, Joseph and Associates Buffalo, NY David M.A. Stack, Q.C., Partner McKercher Saskatoon, Saskatchewan 5

6 What is Considered Permissible Communications? Cynthia Lazar Taylor McCaffrey 6

7 Communications During Organizing Providing these based on Manitoba legislation and jurisprudence Other provinces have broader rights for employers to communicate with employees Sensitive period" begins when union starts signing up employees LRA recognizes right of employees to participate in union activities (s. 5) ULP to interfere with the formation or selection of a union (s. 6) 7

8 Communications During Organizing S. 6(3)(f) allows an employer to tell employees facts or opinions about her business Cases say any mention of union is not about the business in 6(3)(f) S. 32(1) protects employer free speech except if it interferes with the formation or selection of a union circles S. 17 prohibits threats, intimidation, coercion or changes to working conditions as ULP interfering with unionization 8

9 Employer free speech strictly limited Employer can't proclaim a negative view about a union Could communication affect employee's decision whether to sign card? Objective test Marusa Marketing 2001 Message needn't be negative about unions if it has chilling effect Any message delivered in a captive audience situation closely scrutinized 9

10 Permissible Communications in Manitoba Employer s wage rates and benefits; Opinions about economics of the business; Cost and effect to employer of wage and benefit structures; Correcting inaccurate information given by the union. 10

11 Permissible Communications in Manitoba Latest Manitoba case: Winnipeg Dodge Chrysler Ltd., [2014] M.L.B.D. No. 21 Employer said meetings not mandatory Employees felt they had to attend Three meetings during working hours in six days between cert application and vote All-employee meetings rare Employer concerned about distraction, employees quitting, questions being asked Employee opposed to union allowed to speak in meeting; no others 11

12 Permissible Communications in Manitoba Decision: Marusa principles repeated Union certified regardless of vote ULP, true wishes can't be determined; support adequate 12

13 Conclusion Manitoba an island of silence in a sea of free speech Provincial election in spring 2016 could change that Communications during collective bargaining much more open 13

14 United States Permissible Communications Ginger D. Schroder Schroder, Joseph & Associates 14

15 Permissible Communications in the U.S. National Labor Relations Act (NLRB) National Labor Relations Board (NLRB or Board ) Public and Transportation (Railway Labor Act) Employer free speech rights are fairly broad No T-I-P-S (Threats, Interrogation, Promises or Surveillance) Factual data and opinions Employers can communicate to their employees the disadvantages of union membership, including the financial costs and potential for work-related loss from strikes or picket lines. 15

16 Permissible Communications in the U.S. An employer may: Bar non-employee union representatives from the property, if the general public is also excluded Prevent employees from distributing pro-union material during working hours Prohibit the distribution of pro-union materials by non-employees, provided the union is able to reasonably communicate with employees some other way 16

17 Permissible Communications in the U.S. An employer may not: Forbid employees to solicit other employees during breaks, off-duty time and in non-working areas Ban the wearing of union buttons or shirts without a valid business reason Refuse to supply a list of the names and last known addresses of employees to union officials prior to a unionizing election 17

18 The Certification and Decertification Processes Sundeep Gokhale Sherrard Kuzz 18

19 Certification Process - Ontario Step 1: Card Signing Stage valid for 1 year Union needs 40 % of employees to sign cards Step 2: Application for Certification Mandatory vote 5 business days later Step 3: Outcome is based on majority who cast a ballot 50 % plus 1 of those who cast a ballot 19

20 Employer Free Speech An employer is free to express opposition to a trade union, to express opinions on the merits of unionization, to describe the law, and to generally engage in electioneering and propaganda or salesmanship it is therefore acceptable for an employer to say it does not want a union, or for an employer to express a desire that employees vote "no" to a trade union, so long as an employer's expression is not accompanied by coercion, intimidation, threats, promises or undue influence.» Capelas Homes Ltd., [1998] O.L.R.D. No

21 How a Company Becomes Certified 21

22 Termination of Bargaining Rights Open Period Sections 63 & 67of Labour Relations Act, 1995 If no collective agreement one year after certification But if conciliation officer is appointed - o 30 days after report of conciliation board o 30 days after No Board o 6 months after report from Minister that the conciliation officer says the differences are settled 22

23 Termination of Bargaining Rights Open Period Section 63 of Labour Relations Act, 1995 If agreement is 3 or fewer years Final 3 months of agreement If agreement is more than 3 years Months 34-36; Final 3 months of every additional year; and Final 3 months of agreement 23

24 Termination of Bargaining Rights Employee collects cards/petition 40% of employees in bargaining unit Bargaining unit determined by collective agreement 24

25 The Dividing Line Section 63(16) of the Act the Board may dismiss the application if the Board is satisfied that the employer or a person acting on behalf of the employer initiated the application or engaged in threats, coercion or intimidation in connection with the application. 25

26 United States NLRB Quickie Election Rule Accelerates the Union Organizing Process 26

27 NLRB Quickie Election Rule in the U.S. Effective April 14, 2015 referred to as ambush election rules Representation petition served on the other party by the petitioner immediately. Evidence of employee support of at least 30% in the petitioned-for unit (the showing of interest ) must be submitted simultaneously with the petition. Documents may now be filed electronically under the new rules and the NLRB could issue a Board Notice of Petition and Notice of Hearing as soon as the same day that the petition is filed. Within 2 days of receiving the Notice of Petition and Notice of Hearing from the NLRB, the employer must post a Notice of Petition. 27

28 NLRB Quickie Election Rule in the U.S. Employer must file a Statement of Position as set by Region, and raise ALL issues the employer wishes to litigate before the election, (proposed unit issues etc., identify employees and voting eligibility concerns, employer s position on logistics of actual election, all names and contact information for unit employees). Any issues not included in the Statement may not be raised at the pre-election hearing. Pre-election hearings are limited to determining whether a question of representation exists (also no post hearing briefing all oral). Election set for earliest date practicable consistent with the rules. New rules drastically reduce amount of time built into the representation process between petition and election. Previously, an election would not happen for a month or more following the filing of a petition (up to 42 days if it was a stipulated election). It is now possible, depending on the speed at which NLRB processes, generates, and serves documents, for an election to happen less than 2 weeks after the initial petition is filed. 28

29 Key Exclusions from the Bargaining Unit Amy Bradbury Barteaux Durnford 29

30 Exclusions from the Bargaining Unit All jurisdictions exclude: Managerial employees Employees working in a confidential capacity as it relates to labour relations Look at what the employee is doing, not just titles 30

31 Exclusions from the Bargaining Unit Other exclusions: Professionals (doctors, lawyers, dentists, etc.) NS, PEI, ON, AB Domestic employees NB, ON, AB Specialized legislation for police (ON, Nfld, AB), teachers, civil servants, etc. 31

32 Managerial Employees - Considerations The right to direct the workforce; The power to hire; The power to fire; The power to grant time off; The power to grant or effectively recommend wage, increases, promotions or other similar matters; Participation in the grievance process on behalf of the employer; 32

33 Managerial Employees - Considerations The power to discipline; Attendance at managerial meetings in which labour relations are discussed and policies formulated; Enjoyment of the usual management prerequisites (salary vs. hourly wage, additional benefits, etc.); Dissimilarity of functions (is the person doing the work of the bargaining unit). 33

34 Confidential Employees Must be confidential in relation to labour relations and must be information the union does not know Does not include confidential information such as trade secrets, etc. Disclosure of the information would adversely affect the employer 34

35 Confidential Employees Must be involved with this information as a regular part of his/her duties Not sufficient if it is just available; employee must access it on a regular basis Not enough if employee only crunching numbers Exemption is narrowly interpreted Real Question: On which side of the bargaining table should this employee be? 35

36 Charter Challenges Exclusion of groups of employees from the traditional union organization and collective bargaining regime has been challenged under section 2(d) of the Charter (Freedom of Association) 1. Fraser v Ontario 2011 SCC 20 separate regime for agricultural workers did not violate s. 2(d) 2. CUPE v PNB 2009 NBQB 164 exclusion of casual employees from public service bargaining units violates s. 2(d) 36

37 Charter Challenges Cont d 3. Mounted Police Assn. of Ont. v Canada 2015 SCC 1 legislation prohibiting RCMP officers from unionizing and engaging in collective bargaining in a meaningful way violates s. 2(d) Question do the employees have the right to collectively associate to achieve workplace goals and make representations to employers, which the employer must consider and discuss in good faith? 37

38 United States Inclusions and Exclusions 38

39 Inclusions and Exclusions in the U.S. Community of Interest is fundamental factor (professional employees) U.S. government, state government, RLA, international organizations, Indian tribes, labor organizations Guards Supervisors, managerial employees, confidential employees, agricultural laborers 39

40 Inclusions and Exclusions in the U.S. Independent contractors (owner operators, newspaper carriers, freelance performers etc.) Family members Domestic service Retirees Academia Specialized units and issues - Healthcare Multi-employer units 40

41 Duty to Bargain in Good Faith Daniel R. Bokenfohr McLennan Ross 41

42 Duty to Bargain in Good Faith Alberta Labour Relations Code Section 59 Notice to commence bargaining Section 60 Duty to bargain in good faith Meet within 30 days Exchange proposals within 15 days of meeting Make every reasonable effort to enter into agreement 42

43 Duty to Bargain in Good Faith Objectives: Compel recognition of the trade union Require full, honest and rational discussion of terms & conditions of employment with a view to reaching an agreement Test: Totality of bargaining conduct Reasonable efforts to reach agreement? 43

44 Duty to Bargain in Good Faith Examples of bad faith bargaining: Refusing to meet Attending meetings unprepared to bargain Surface bargaining Receding horizon bargaining Negotiating directly with employees Negotiating improper demands to impasse Breach of the duty to disclosure 44

45 Duty to Bargain in Good Faith Duty to Disclose: Allows parties to intelligently appraise proposals Solicited disclosure Union requests relevant information Must respond honestly Unsolicited disclosure De facto decision having significant impact on unit Requires full and frank discussion 45

46 Impasses: Duty to Bargain in Good Faith No mandatory first contract arbitration Mandatory mediation Voluntary interest arbitration Strike/lockout Exceptional cases: Compulsory interest arbitration Disputes inquiry boards, public emergency tribunals 46

47 Remedies Duty to Bargain in Good Faith Objective: undo damage caused by breach as much as possible Declarations and cease and desist orders Bargaining directives Dates and proposal deadlines Removal of improper proposals Production orders Imposing/extending bargaining freeze period Damages 47

48 United States Duty to Bargain in Good Faith 48

49 Duty to Bargain in Good Faith in the U.S. Employer and Union are required to meet at reasonable times, places to bargain in good faith: (i) with respect to wages, hours, and other terms and conditions of employment; or (ii) the negotiation of an agreement; or (iii) any questions arising thereunder. Subjects: Mandatory (i.e., wages, hours, vacation time, insurance, safety practices); Permissive (i.e., retiree issues); Illegal (i.e., unlawful practices) Duty to bargain in good faith is an obligation to participate actively in the deliberations so as to indicate a present intention to find a basis for agreement. This implies both an open mind and a sincere desire to reach an agreement, as well as a sincere effort to reach a common ground. 49

50 Duty to Bargain in Good Faith in the U.S. Information requests, inherently managerial (effects bargaining) Thousands of NLRB cases regarding good faith. Board will look at the totality of the circumstances. It is an unfair labor practice for either party to refuse to bargain collectively with the other, but parties are not compelled to reach agreement or make concessions. Impasse Remedies-bargaining orders, etc. 50

51 The Constitutional Right to Strike David M.A. Stack McKercher 51

52 Background to Supreme Court Judgment Saskatchewan Federation of Labour v. Saskatchewan, 2015 SCC 4 Public Service Essential Services Act ("PSESA") came into force in 2008, limiting the ability of public sector employees performing essential services to strike. Public employer and union required to negotiate an essential services agreement If negotiations fail the public employer could unilaterally designate which services are essential and who has to keep working during strike 52

53 Background to Supreme Court Judgment Saskatchewan Federation of Labour v. Saskatchewan, 2015 SCC 4 Trade Union Amendment Act (TUAA) also came into force, eliminating card certification, demonstration of 45% support required to obtain a certification vote, decertification reform, statutory entrenchment of employer's right to communicate with employees. 53

54 The Challenge Organized labour applied to quash legislation At the Court of Queen's Bench and Court of Appeal, the TUAA changes were upheld. The Queen's Bench judge found the PSESA unconstitutional. The Court of Appeal disagreed. Supreme Court of Canada (majority) sided with the Queen's Bench - PSESA unconstitutional 54

55 The Supreme Court Decision Right to strike is an essential part of collective bargaining "Constitutionalized" right to bargain collectively would be "meaningless without right to strike 55

56 The Supreme Court Decision Impairment of the right to strike was not minimal or proportionate Majority not convinced that need for unilateral authority was justified; No dispute resolution process for Union to challenge the unilateral designations of the employer or to resolve breakdowns in the negotiations over essential services; Those forced to work during the strike were not restricted to essential duties. 56

57 The Supreme Court Decision Good news TUAA amendments were upheld, which have an impact on a much broader impact on employers and unions 57

58 United States Right to Strike 58

59 Right to Strike in the U.S. Section 7 of the NLRA states in part, Employees shall have the right... to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection. A Strike is a concerted activity. Lawful versus unlawful strikes. Depends on the object, or purpose, of the strike, its timing, or the conduct of the strikers. Serious misconduct of strikers strikers physically blocking persons from entering/leaving a struck plant; threatening violence against non-striking employees; attacking management representatives. 59

60 Right to Strike in the U.S. Economic versus unfair labor practice strikes Limitations (notice to federal government, no strike CBA clauses, health care advance notice) Employer lockouts 60

61 Please contact our speakers for more information Daniel R. Bokenfohr McLennan Ross Edmonton, Alberta Amy Bradbury Barteaux Durnford Halifax, Nova Scotia com Sundeep Gokhale Sherrard Kuzz Toronto, Ontario Gregory J. Heywood Roper Greyell Vancouver, British Columbia 61

62 Please contact our speakers for more information Cynthia Lazar Taylor McCaffrey Winnipeg, Manitoba David M.A. Stack McKercher Saskatoon, Saskatchewan Ginger D. Schroder Schroder, Joseph & Associates Buffalo, New York 62

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