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Do the employer’s actions in this case constitute bargaining in bad faith?

Assignment 4 is worth 20% of your final grade. This assignment should be submitted after you have completed the readings and learning activities for Unit 6.

 

Assignment 4 assesses your understanding, analysis, and practical application of the law as it relates to the exercise of bargaining rights.

 

In Assignment 4, you are expected to analyze and form a number of conclusions on a case in which collective bargaining rights are tested, as they are so often, by an industrial dispute. Read the following case study, and study the questions that appear at the end of the case. Then, combine your answers to these questions in an essay that does not exceed 1,500 words.

 

Once you have successfully completed and submitted your assignment, you are welcome to contact your academic expert to find out what happened next in the case.

 

A Note on This Case

 

This case is summarized from an actual complaint to the Alberta Labour Relations Board, UFCW 1118 v. Airtex Manufacturing Partnership, [1991] Alta. L.R.B.R. 783. The names of the complainants and the respondents have not been changed, but some facts and descriptions have been modified.

 

Reading the Alberta Board’s award is unlikely to help you complete this assignment. Legislation in Alberta has changed and you may well be covered by different legislation. And labour relations boards can also be wrong!

 

The Case in Brief

 

The employer (Airtex) has commenced a lawful lockout of its employees before the bargaining agent (the union) was able to commence a lawful strike. Airtex has announced that it will lift the lockout after one day and employees are expected to return to work under interim working conditions. It has threatened dismissal for employees who do not return to work under the interim conditions.

 

The interim conditions have been set out in a detailed booklet resembling a collective agreement. The interim conditions, however, omit all references to the union embodied in the employer’s proposal: the recognition clause, union security clause, grievance procedure, non-discrimination clause, and provisions for union communication with employees. The union has complained that among other things, Airtex has violated its duty to bargain in good faith, has interfered with the union’s representation of employees, and has refused to employ employees because they are exercising their rights under the Labour Relations Code.

 

The Issue

 

Under provincial labour relations legislation, what are the respective rights and duties of employees, the union, and the employer as they work through the lockout and agreement?

The Case in Detail

 

For purposes of this case, assume that the date is December 12, 1993.

 

Airtex Manufacturing Partnership makes air conditioning equipment under the name Engineered Air. United Food and Commercial Workers Local 1118 (the union) represents Engineer Air’s plant employees. The union has taken over as bargaining agent from an employee association recently, following a contentious certification. The union and Engineered Air are now negotiating toward a new collective agreement.

 

On December 2, the company gave the union the following notice of lockout:

 

NOTICE OF LOCKOUT

 

This is written notice pursuant to Section XX of the Labour Relations Code locking out all the employees represented by Local 1118 and employed by Airtex Manufacturing Partnership. This lockout will commence at 6 a.m., Friday, Dec. 6, 1993, at all Company plants.

 

Take notice that the lockout will include, without limiting the generality of the foregoing, any or all activities within the definition of the term “lockout” as defined in the Labour Relations Code.

 

All employees represented by Local 1118 will be locked out from 6 a.m. on Friday, Dec. 6, 1993, to 6 a.m. on Saturday, Dec. 7, 1993. All employees will be instructed to report for their normal shift commencing Monday, Dec. 9, 1993. Employees who do not report to work will be considered to have abandoned their employment and to have terminated their employment with the Company for not having reported for work.

 

The existing Collective Agreement will terminate at the commencement of the lockout. Interim employment conditions will be implemented by the Company for the duration of the dispute. A copy of these employment conditions is included for your reference.

 

The Company will continue benefit coverage and Company contributions to benefits at this stage of the lockout. The Company reserves the right to discontinue premium payments at any time during the lockout. We request a written reply from the Union by Dec. 16 respecting your position on remitting premiums in respect of all employees covered by benefits should the Company discontinue payments. If the Union is prepared to pay the full premiums in advance, benefits will be continued as provided in Section XXX of the Labour Relations Code.

 

Relevant Facts

 

The parties agree on some basic facts, and the documentary evidence discloses others:

 

  • The parties were bound by a collective agreement originally entered into between Engineered Air and The Engineered Air Employees’ Association. This agreement included a nominal expiry date of November 30, 1993.
  • Prior to serving lockout notice, the company engaged in serious collective bargaining with the union and it has stated its intention to continue to do so after the lockout.
  • The employer proposed terms for a new five-year collective agreement on November 8. The union proposed terms for a two-year collective agreement on November 27.
  • The company’s lockout notice, dated December 2, was not served until after all the legal prerequisites under the Labour Relations Code—for example, notice to commence collective bargaining served, mandatory mediation completed, cooling-off period expired—had been met.
  • The union elected not to pursue its right to apply for a strike vote until December 4, two days after the company served its legal lockout notice.
  • The union’s strike vote is scheduled for December 12. If members vote in favour of the strike action, the earliest the union could strike would be December 16.
  • Along with the lockout notice, Engineered Air gave each bargaining unit employee a two-page Employee Information Bulletin with questions and answers about the lockout. It also gave employees a detailed 10-page booklet entitled Engineered Air Employment Conditions.

 

Proposed Employment Conditions

 

As mentioned, the employer accompanied its lockout notice with a sophisticated set of Employment Conditions and an Employee Information Bulletin. They are important because of the things they include or omit, but even more they are important because of the impression they create for employees.

 

The union and employer have both tabled full proposals that the other side so far refuses to accept. The employer’s last proposal forms the basis for its Employment Conditions document, but this document is stripped of virtually all reference to the role of the union in the workplace. To some extent, this is because the document does not purport to be a collective agreement, nor can it be. However, as the following summary will show, many of the deleted employer proposals go to the heart of the union’s role as a bargaining agent, a role that continues whether a collective agreement is in place or not. In each case, the clauses referred to below are in the employer’s original proposal but have been deleted or amended significantly to remove any references to the union in the proposed Employment Conditions. All the clauses had been agreed to in bargaining, so none are in dispute.

 

Article No.

Provides Description of Article Proposed Amendment
2 Recognition Recognizes union as sole bargaining agent for all employees within the scope of the bargaining unit. Delete
3 Union security

 

   
3.01   Maintenance-of-membership clause for all present member employees, and a requirement that all new hires become union members within 30 days of hire.

 

Delete
3.02   Requires the employer to have new hires sign up for the union; general obligation to deduct and remit union dues.

 

Delete
3.03   An obligation to record union dues deducted on employees’ T-4 slips.

 

Delete
3.04   Permits union stewards to represent employees in grievances. A promise by the employer to give union stewards time off, up to 15 minutes for each grievance, and a promise by the union to conduct investigations and meetings outside working time to keep up production.

 

Delete
3.05   A list of stewards, by area.

 

Delete
3.06   A union promise not to conduct union

business on company time without permission.

 

Delete
3.07   Company allows a bulletin board for union notices. Union promises not to distribute leaflets on the premises.

 

Delete
3.08   Gives the union a confidential monthly list of employees. Delete
4 Non-discrimination

 

   
4.01   The company and the union agree there will be no discrimination, intimidation, interference, restraint or coercion exercised or practised by the company or the union or by any of their representatives with respect to any employee because of activity or non-activity by the union.

 

Delete
4.02   Union agrees not to cause or sanction any work stoppages during the term of the agreement. It recognizes that such action may warrant dismissal. The employer agrees not to lock out during the term of the agreement.

 

Delete
5 Management responsibilities Provides comprehensive statement of management’s rights.

 

Delete
6 Negotiating committee Recognizes the union’s negotiating committee and provides limited time off without pay for negotiations during working hours. Delete

 

In addition to the deletion of these clauses and provisions, the Employment Conditions also propose the following changes and modifications:

 

 

Article No. Issue addressed Proposed Amendment in Employment Conditions
7 Grievance procedure Original clause defined a comprehensive grievance and arbitration provision. It divided grievances into two classes: Employment grievances (7.01), and Policy grievances (7.02). This process to be replaced in the Employment Conditions with Articles 2, 16, 17, and 19 below:

 

2 Employee concerns

 

2.1 Complaint process If an employee has any complaint about fair treatment or the application of these Employment Conditions, they may discuss their concerns with any member of management, including the general manager or the president. This will in no way adversely affect their employment with the company.

 

2.2 Discipline Review Committee A Discipline Review Committee consisting of two management representatives and two representatives appointed by employees will be available at all times. In the event of a suspension or dismissal, the company will review such proposed discipline with the committee before taking action. An employee who feels he or she has been unfairly disciplined may appeal these decisions to the Discipline Review Committee.

 

16 Safety This article sets up joint health and safety committees. The Employment Terms preserve the committee but delete reference to the union as appointer of the employee representatives. The new term deletes a prohibition on the committee dealing with grievance or collective bargaining matters.

 

17 Discipline The new article is the same as that proposal except for two things. All reference to a grievance procedure is removed, and so is the promise to notify the union in writing within one day of notice of disciplinary action given to an employee.

 

19 Leaves of Absence Article 19.04 allowed leaves of absences for union schools, conventions or conferences. It also provided for an employee to take a long-term leave, while maintaining service, to occupy a full-time union position.

 

 

 

Finally, the Employment Conditions add an article dealing with a social club/employee association that has existed for some time but has not previously been mentioned in the collective agreement or any proposals. It reads:

 

Article 14 – Hot Air Social Club

The company offers and encourages membership in the Hot Air Social Club. The club promotes favourable employee relations through social functions planned by employees. Funding of these functions is through a $1 monthly contribution by each employee, which is matched by the company on an equal basis. Membership will be offered upon commencement of employment.

 

The Issues for You to Decide

 

In the light of the course material and your own provincial labour relations legislation, answer the following questions:

 

  1. Does a strike or lockout end a collective agreement?
  2. If so, does an employer have the ability to unilaterally impose terms and conditions of employment once strike or lockout action ends the collective agreement?
  3. If an employer unilaterally implements such terms, are employees required to work under those terms, without their individual, or the union’s collective, approval?
  4. Can the employer exclude from the terms it unilaterally imposes all terms that are related to the union?
  5. Do the employer’s actions in this case constitute bargaining in bad faith?

 

 

Combine your answers to these questions in an essay that does not exceed 1,500 words.

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