ORGS 2117- Chapter 4

.docx

School

Nipissing University *

*We aren’t endorsed by this school

Course

2117

Subject

Management

Date

Feb 20, 2024

Type

docx

Pages

Uploaded by mdominico8317

ORGS 2117: CHAPTER 4 The Legal Environment Wagner Act History - Prior to the act, unions were seldom recognized without a violent power struggle between management and labour - In Canada, while unions had achieved legal recognition in the Trade Ac t of 1872 , they encountered the same hostile employers in the Canadian Context - In the second decade of the twentieth century, a number of broader social and economic factors contributed to the decline of organized craft labour in both countries: the influence of scientific management and mass production; the increasing use of company unions as a method of union substitution; and a generally hostiles environment - The Great Depression gave rise to a new wave of unionism - As the paternalist model of company unions declined and unemployment surged, workers increasingly distrusted companies to provide basic rights and benefits - Industrial unions which sought to organize all workers in an industry regardless od skill or occupational status, emerged as a more active and socially oriented movement to protect workers Scientific management: the application of engineering principles to define specific tasks in the production process, thereby removing the autonomy of skilled craft workers The Snider Case - Toronto electric Power Commissioners v. Snider et al. grew out of a labour dispute between the commission and its employees in 1923 - The established protocol of the day provided that a conciliation board would be appointed under the industrial dispute investigations act - Under the BNA ACT civil and property matters were the responsibility of the provinces - The snider case went to the British Privy Council, the highest court in Canada at that time - The next twenty years would see each province and the federal government design separate labour policies to govern industrial relations within their jurisdiction Canada’s P.C. 1003 - Under the constitution Act and its interpretations, the Parliament of Canada has jurisdiction over labour relations in a number of key industries. - For the purposes of the Canada Labour Code , part I, these include o Broadcasting o Chartered banks o Postal service o Airports and air transportation o Shipping and navigation o Interprovincial or international transportation by road, railway, ferry, or pipeline o Telecommunications o Industries declared to be for the general advantage of Canada - Thus each province and territory as its own version of the Wagner Act model Union Recognition under the Wagner Act Model - The Wagner act was passed during a time of intense conflict between labour and management - The conflict was not restricted to labour and management - Because the employees of a given firm could belong to more than one union, interunion conflict over representation rights was not uncommon - To deal with this conflict the Wagner Act provided the following: o Recognition strikes and lockouts were declared illegal o As a substituted for industrial conflict over union recognition, labour board were established to provide a process whereby employees could obtain union recognition by a free expression of support

o The union that obtained recognition was granted exclusive jurisdiction to represent all employees in a given bargaining unit. Known as the exclusivity principle Exclusivity principle: the idea that a union is granted the sole right to represent all employees in the defined bargaining unit Labour Boards - Purpose is to provide an alternative to the courts that is faster, cheaper, and has greater expertise in matters pertaining to industrial relations - Their structure is tripartite o Tripartite: board has 3 stakeholders (management, labour, government) - Boards may hear several cases: o 1. Certification and decertification o 2. Unfair labour practices o 3. Declarations of illegal strikes or lockouts - Certification: process of gaining recognition under the appropriate labour act - Key element that defines the Canadian version of the Wagner Act model is the possibility of automatic certification - Two important elements of the recognition process require explanation: the bargaining unit and unfair labour practices Bargaining Unit - Unless parties agree otherwise the labour board will be called upon to make a critical determination of which employees are eligible to be covered by the union - The percentage of employees needed by the union to win a vote or get an automatic certification is expressed as a proportion of the defined bargaining unit o Bargaining unit: the group of employees in an organization that are eligible to be represented by a union - Management employees are excluded from union representation - The rationales for excluding managers are o Access to confidential labour relations information might compromise managements position in bargaining o The union would be in a conflict of interest if a union member was disciplined by another union member - The labour board will examine the actual duties of the job in question o Community of interest: fundamental criterion for forming a bargaining unit is that a community of interests should exist among the employees o Wishes of employees: boards take into account whether employees wish to be separate from or part of a defined group o Employer structure: labour board must consider the employers structure in determining appropriate bargaining units for collective bargaining o Unfair labour practices: alleged violations of the Labour Relations Act by employers, unions, or employees Duty of Fair Representation: a legal obligation on a unions part to represent all employees equally and in a non- discriminatory manner - Under this duty, a union must not discriminate or act in an arbitrary manner in the representation of all employees COLLECTIVE BARGAININ Good Faith Bargaining: an obligation on union and management to make a serious attempt to reach a settlement - Concept has rarely been tested and boards have been reluctant to interfere in private negotiations between the parties - GFB rarely goes before labour boards because 75-90% of all cases are settled by mediation

Dispute Resolution - The Wagner Act is crafted on the principle of voluntarism which involves minimal government intervention in collective bargaining o Voluntarism: the notation that collective bargaining is a private matter between parties and that government intervention should be kept to a minimum - Under the Wagner Act, mediation of disputes is used only if either party requests it o Mediation: a dispute-resolution process in which a neutral third party acts as a facilitator - Another is mandatory government conciliation , or mediation, in the collective bargaining process before a legal strike can take place o Conciliation: see mediation - In several jurisdictions the requirement to complete the conciliation/mediation procedure before a strike has been deleted but the procedure is still required in others. - Canadian governments have gradually expanded the role of government in collective bargaining - Three examples of this trend are o the authority of the labour minister to create an industrial inquiry commission o to order a vote on the last offer in bargaining o to settle a dispute over the first collective agreement by arbitration o arbitration: a quasi-judicial process whereby a neutral third party makes a final and binding determination on all outstanding issues in the dispute EXAMPLES OF THE EXPANDED GOVERNMENT ROLE IN COLLECTIVE BARGAINING Industrial Inquiry Commission - inquiry commissions are employed, though rarely, by governments to investigate the causes and consequences of industrial actions and strikes Last-Offer Vote - labour laws have been amended to allow for forced votes - In Ontario, the request by an employer for a last-offer vote must be granted when a strike is in progress First Contract Arbitration - As a result of the Snider decision and pressure from a labour-friendly political parties, Canadian labour laws have been adjusted on a regular basis, generally toward being more supportive of collective bargaining and unions - Three models according to Abraham are o Bad faith bargaining remedy o Complete breakdown in bargaining o No-fault approach Replacement Worker Laws - The federal Canada Labour Code prevents the use of replacement workers, but only when their purpose is to undermine the union - Quebec and BC have outright bans on strike-breakers during a strike - Ontario, Manitoba, and Alberta prohibit the use of professional strike-breakers - Manitoba, PEI, and Sask prevent replacement workers from permanently replacing employees but only after a strike COLLECTIVE AGREEMENT ADMINISTRATION - In all Canadian jurisdictions, strikes are illegal during the term of a collective agreement - The Wagner Act contains no such prohibition - In Canada all laws substitute arbitration for the right to strike during the contract term - The restriction on strikes is known as the “labour peace” provision of the law

- The labour peace provision is also known as the “deemed provision” of the labour law, because the law deems it be included in every collective agreement ROLE OF THE CHARTER - Canada preserved labour as a provincial responsibility and created a Charter of Rights and Freedoms - Governments can invoke the “notwithstanding clause” which provides for a legislative override of the freedom or right for five years Review of Supreme Court Charter Decisions Right to Strike - For organized labour in Canada the early trilogy losses resulted in some negative perceptions of the Charters ability to protect workers’ rights to freedom of association Union Dues - The Canadian Charter respects both individual and collective rights Picketing - The SCC has decided that secondary picketing is part of freedom of expression Union Recognition - The Ontario legislature enacted the Agricultural Labour Relactions Act , which extended trade union and collective bargaining rights to agricultural workers - A year later , the legislature repealed the ALRA in its entirety Political Activity - The supreme court upheld a challenge to restrictions on the political activities of civil servants - The court found that the restrictions violated freedom of expression A NEW DIRECTION FOR THE SUPREME COURT - The earlier trilogy limited labours ability to strike; the later cases strengthen collective rights, expanded picketing rights and freedom of expression, and gave new meaning to union recognition and freedom of associations - In a dramatic reversal of past decisions, the court declared collective bargaining a constitutional right under the freedom of association guarantee A RIGHT TO STRIKE - The supreme court constitutionalized the right to strike in Canada by concluding in a 5 -2 decision that freedom of association includes the right to strike - This completed the courts trilogy decision EMPLOYMENT LAW - The essence of the argument is that collective bargaining under the Wagner Act model has been replaced by a system of rights and obligations that apply to all firms and employees, whether they are unionized or not Employment Conditions - We make a distinction between employment conditions – commonly known as employment standards – and employment rights - Conditions are established by legislation by minimums - Unionized employees may typically build on these minimum conditions o Hours of work o Overtime and overtime pay o Scheduling of hours o Coffee and meal breaks o Exclusions

Your preview ends here

Eager to read complete document? Join bartleby learn and gain access to the full version