LAW Labour Law. Term 1 Professor: Cohn Gusikoski TOTAL MARKS: 100

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1 Write Your Exam Code Here: Return this exam question paper to your invigilator at the end of the exam before you leave the classroom. THIS EXAMINATION CONSISTS OF 5 PAGES PLEASE ENSURE THAT YOU HAVE A COMPLETE PAPER THE UNIVERSITY OF BRITISH COLUMBIA FACULTY OF LAW FINAL EXAMINATION December 7, 2016 LAW Labour Law Term 1 Professor: Cohn Gusikoski TOTAL MARKS: 100 TIME ALLOWED: 3 HOURS ** ** * * * * * * * * * * * * ** * NOTE: 1. This is an open book examination. 2. There are five PARTS to the examination. 3. PARTS I and II consist of two questions each. You must answer both questions in PARTS I and II. 4. PARTS Ill and IV consist of one question each. 5. Part V has three short answer questions. Answer fl the short answer questions. 6. The value of each question out of 100 is indicated. Also, provided is an estimated time, calculated on the basis of the value of the question as a percentage of 180 minutes, with additional time allocated to questions that require more reading. 7. You may assume any additional facts that you think are necessary to answer a question, but you should state clearly any assumptions you have made. Do not make assumptions that have the effect of avoiding relevant legal issues. Unless otherwise stated, assume that the jurisdiction is British Columbia. THIS EXAMINATION CONSISTS OF 9 QUESTIONS

2 LAW , Term I Page 2 of 5 PART I Fact Scenario (25 marks 50 Homer Flats is the proprietor of Grass Fed, a vegetarian farm-to-table restaurant, on the outskirts of Nanaimo, BC. Grass Fed prides itself on serving local produce that it has grown on site or otherwise purchased from local farmers. The 200 seat restaurant is situated on a 160 acre lot which contains fields and various greenhouses meant to grow all the vegetables and grains the restaurant needs. Homer Flats finds that the locals are too lazy and don t know a damn thing about farming. Accordingly, Homer participates in the federal seasonal agricultural worker program ( SAWP ) to hire the foreign labour he needs for the farming aspect of his business. Every year 10 men and women from different countries arrive for 12 months and perform all the needed farm work. All the other employees working for Grass Fed are from Nanaimo. Homer s wife, Isabelle, is the book keeper for Grass Fed. In addition to Isabelle, there are 2 employees who regularly work in the food shed and 14 who have been hired in the restaurant. The produce is grown and picked by the SAWP employees where it is placed in the food shed for processing. There are two food shed employees who process the produce. However, 2 or 3 additional SAWP employees are utilized in the food shed to help with the processing of produce for the restaurant, which includes such tasks as cleaning, peeling, blanching, canning and freezing. The SAWP employees are scheduled for one week at a time at the food shed so that each of them receives a break from the heavy pesticides used in the garden and greenhouses. The restaurant is open six days a week and currently employees 14 locals. Each shift has at least seven people: two dishwashers, two short cooks, two servers and one host. The restaurant is run like any other restaurant. Homer has difficulty finding locals who can put down their ipads long enough to do some dishes; as such, the dishwashers are often back-filled with SAWP employees. Currently, there is one SAWP employee temporarily washing dishes six days a week. The Canadian employees are unhappy with the way Homer Flats treats them. One representative of the Canadian employees calls up the UFCW, Local 1 and tells the Union that Grass Fed employees want to unionize because the owner is disrespectful and cusses a lot. The UFCW conducts an investigation of support and finds that they have 10 card signers among the Canadian workers but none of the SAWP workers support a union. The Union learned that the SAWP workers find that Homer treats them the same as the rest of the Canadians and, as they speak Spanish, they do not really mind or understand his cussing. The SAWP workers just think he is strange and do not want to risk their status in Canada by signing a union card. Question #1 (10 marks) You are the Union s lawyer. A Union rep calls you to seek your advice on filing an application for certification. She understands that an all employee unit would not be successful given the lack of support from the SAWP workers. Taking into account the source of support, advise the Union as to the various bargaining unit description it could apply for. Explain the advantages and disadvantages of each and, in more general terms, (without directly addressing the IML factors) which bargaining unit description would be most appropriate given practical considerations and the Board s law and policy.

3 LAW416.OO1,Term I Page3of5 Continuation of Part I... Question #2(15 marks) Assume the application is filed for the bargaining unit recommended by Union counsel in Question #1. You are now Employer counsel acting for Homer Flats who tells you no union is going to ruin his business come hell or high water. He retains your services to file a submission at the LRB objecting to the appropriateness of the bargaining unit, as set out in the Union s certification application. PART II Fact Scenario (30 marks 55 The following facts are a continuation from the facts set out in Part I The Union files an application for certification late on Friday afternoon. Homer Flats does not receive notice until the following Monday morning. After reading the application notice Homer is furious. People could hear him cussing from down town Nanaimo. Homer is at a loss. He always considered his employees as members of his family. After getting a grip of himself, Homer immediately walks down to the restaurant and convenes two meetings: one with the Canadian workers and one with the SAWP workers. The meeting with the Canadian workers takes place in the food shed. Homer states that he is disappointed in the employees, that they are all ungrateful and that the Union is only there to get its greedy little hands on their money. He further states that he and Isabelle have always treated them as family, but that will stop when the Union gets in because the Union just wants them to go on strike to ruin his business. He said no restaurant can afford the Union dues that he ll have to pay and that if the restaurant goes broke, they ll all lose their jobs. Homer then calls all the SAWP workers to the main greenhouse and yells at them in broken Spanish. He tells the SAWP workers that they will go straight back home if the Union gets in because unions have always been racist and they hate foreigners. He further tells them he won t give them a damn dime for their flight back home either (the Federal Legislation requires him to pay for the return flight home). Homer then closes the restaurant down and sends all the Canadian and SAWP workers home so they can think long and hard about what they ve done. He further says that he ain t payin anyone a damn dime for the rest of the day either. Question #3 (25 marks) You are Union counsel again. The Union calls you requesting that you draft and file an unfair labour practice complaint against the employer. Compose a complaint against the employer setting out the provisions of the code which you allege the employer to have breached, and the relevant law supporting the complaint.

4 LAW , Term 1 Page 4of5 Continuation of Part II... Question #4 (5 marks) Set out the remedies the Union should request and the basis for those remedies. PART III Fact Scenario (15 marks 25 The following facts are a continuationfrom the facts set out in Parts I and II The Union is eventually certified (for the bargaining unit you proposed in question #1) and it serves notice to commence collective bargaining on December 1, On Friday December 2, all 12 of the SAWP workers permits expire and must be renewed for them to stay in the Country. Only 6 of them renew their permit as the remaining 6 did not enjoy the broken Spanish and yelling they had endured since the organizing drive. The Union sees it as a good sign that Homer intends to continue with his business when it learns that Homer replaced all 6 SAWP workers with new foreign workers under the same agricultural worker program, maintaining the level of SAWP workers at 12. Fresh off of this encouraging news, the Union organizes its bargaining committee and compiles a comprehensive proposal, which they provide to Homer Flats on December 7, 2016, the first day of bargaining. Homer does not have any proposals. Undeterred the Union reads through its non-monetary items. For any item that was above the statutory minimum requirement, Homer responded: good luck with that. The bargaining meeting ended and the Union requested Homer to bring his proposals to the next meeting. At the next meeting, Homer hands a piece of folded paper to the bargaining committee, which only has a big zero drawn on it. After four more meetings, the parties progress on some of the Union demands. For items he would agree to, Homer would say, that sounds like it won t cost anything subsequently agreeing to the language. However, he refused to agree to language requiring automatic dues payment to the Union despite the fact that it would not cost him any additional monies. With respect to the items needing additional compensation or expense Homer would simply say not a damn extra dime, you can pay for your own dues. Question #5 (15 marks) After the 6th meeting, the negotiating committee ends the bargaining session by saying they will schedule one more meeting and if Homer s attitude doesn t change they will file a bargaining in bad faith complaint. After this threat Homer calls you, his counsel, and recounts to you, while laughing over the phone, the story of how negotiations have proceeded. He then requests a legal opinion.

5 Homer Flats conduct does not change drastically and the parties are unable to conclude a and advise him on what he could do to avoid losing a bargaining in bad faith complaint in the Provide Homer an opinion on whether a bargaining in bad faith complaint might be successful collective agreement. After serving appropriate notice the Union engages in a lawful strike. During the strike Homer Flats intends to run his operation as usual. He thinks that he and Isabelle worker and why. END OF EXAMINATION it so interesting. can do the cooking in the back because they can hire a bookkeeper from town to free her up. As The following facts are a continuation from the facts set out in Parts L II and III PART IV Fact Scenario (15 marks 25 Question #6 (15 marks) PART V Short Answer (15 marks 15 Question #7: (5 marks Question #8: (5 marks law on replacement workers and who, if anyone, would likely constitute an illegal replacement future. requests yet another opinion on who can work during the strike. Taking into account any relevant facts from Parts I, II, III and IV, advise Homer as to the general Name a controversial factor in the 4 factor Bardal test and the basis of its controversy. Describe how the Labour Code in BC generally treats picketing and offer an explanation as to Describe the section of the Code that you think is the most interesting and explain why you find Question #9: (5 marks for other employees he can use or hire, Homer is not sure. He calls you, as his counsel, and why the legislature may have taken that approach. LAW4I6.OO1,Terml Page5of5