51.345 Labour Law
Notes for November 30

Individuals, Unions and the Collective Agreement

1. Individuals, Unions and the CA
   1. Primacy of the CA
   2. Duty of Fair Representation
   3. Duty of Fair Referral
   4. Union Security Clauses
   5. Union Membership Rights
   6. Unions in Civil Society
      
2. Primacy of the CA
   1. Union's exclusive authority to bargain
      1. OLRA ss. 16 and 73
      2. Sheafer-Townsend: 'er can't bargain with other unions
      3. Compagnie Paquet: indiv. contracts displaced by CA
   2. Justifications for exclusivity
      1. Reinforces internal solidarity of union
      2. Increases bargaining power of union
      3. Reflects commitment to majoritarianism
   3. Critiques of Exclusivity
      1. Undue interference with individual autonomy
      2. Balancing collective and individual interests
      3. Minorities denied union of their choice
      4. European alternatives
         
3. Primacy of CA - cont'd
   1. Individual contractual principles inapplicable
   2. McGavin Toastmaster
      1. If CA in effect, no individual contract
      2. CA agreement duty to pay severance pay
      3. Illegal strike not a fundamental breach of contract
      4. Labour legislation limits application of contract principles
   3. Preeminence of grievance arbitration
      1. Weber - tort of privacy and Charter claims
      2. O'Leary - damages for 'ee negligence
      3. Consequence - 'ee fate tied to that of union
         
4. Duty of Fair Represenation
   1. In general - source of duty
   2. Common law
      1. Steele v. Louisville Railway
         1. DFR necessary implication of exclusive bargaining rights
         2. Unions must act
            1. without discrimination
            2. in good faith
            3. non-arbitrarily
      2. Canadian cts. have jurisdiction where statutes are silent
   3. Statutory source of duty
      1. OLRA s. 74 - duty of fair representation
      2. S. 75 - duty of fair referral
         
5. Fair Representation - Policy Aspects
   1. Procedural check on tyranny of the majority
   2. Collective interests v. individual interests
   3. Cox. v. Summers
   4. Weiler - right to arbitrate 'critical' job interests
   5. DFR trade off for individual access to arbitration/courts
   6. Critical job interests closely scrutinized in DFR cases
      
6. Fair Representation - Bargaining
   1. Majority wishes and protecting against unfairness
   2. Process and substantive requirements
   3. Bukvich
      1. Mediating internal conflict among members
      2. Mid-term contract changes
      3. Zero-sum outcomes
      4. Reasonableness of decision a key factor
      5. balancing of advantages and disadvantages
      6. Political rather than legal resolution of internal disputes
   4. Cyr - bargaining, CA administration, and accommodating disability
      
7. DFR - Administering the CA
   1. Conflicts of interest among members
   2. Administration of CA an extension of bargaining
   3. Union able to drop non-meritorious grievances
   4. Conflicts between individual and group interests
   5. Rayonier Canada - factors to be considered
      1. Critical job interest? Group interests? Likelhood of success? Care in reviewing claim? Resources of union? Past practice
   6. Centre hopitalier Regina - swapping grievances for bargaining concessions
      
8. Fair Representation - Grounds and Remedies
   1. Negligence
   2. Arbitrary Conduct
   3. Discrimination
   4. Remedies
      1. Board does not determine merits of grievance
      2. Referring matter to arbitration
      3. Waiving deadlines
      4. Union bears part of damage award
         
9. Fair Representation - Critique
   1. Low standard imposed on union
   2. Cumbersome process
   3. Continuing employee sense of grievance
   4. Unions forced to divert resources to prevent DFR complaints
   5. Alternative: direct access to arbitration by employees
      
10. Union security clauses
    1. closed shop - OLRA s. 51
    2. union shop
    3. maintenance of membership
    4. Rand Formula / agency shop -OLRA s. 47
    5. deduction of dues from wages and remittance by employer
       
11. Reasons for union security clauses
    1. unions less vulnerable to attack by the employer
    2. union officials more secure
    3. increases union resources
    4. premised on the social utility of strong labour movements
    5. unions stronger participant in the labour market
    6. free riders and public goods
       
12. Arguments against the closed shop
    1. unjustified coercive invasion of individual liberty
    2. unions gain too much power
    3. inefficiencies in the labour market
    4. Unions able to prevent increases in productivity
       
13. Protection for the religious objector
    1. OLRA s. 52 allows objectors to pay to a charity
    2. applies only to those working at time security provision came into effect
    3. OLRB to determine whether objections are religious
    4. No protection conscientious objectors
       
14. Union discipline
    1. Common law approach - Orchard v. Tunney
    2. Statutory protection: Ontario OLRA s. 51(2)
    3. dismissed from employment prohibited
       1. member of another trade union
       2. activity against the trade union
       3. reasonable dissent in the trade union
       4. discrimination in the application of membership rules
       5. fees, dues or other assessments are unreasonable
    4. A member could be expelled and dismissed for
       1. failure to pay reasonable union dues
       2. failure to honour a legal picket line
          
15. Unions in civil society
    1. Unions and political activity
    2. Using union dues for non-collective bargaining purposes
    3. Lavigne and an individual freedom of association
       1. freedom of association includes a right not to associate
       2. freedom of expression
       3. Autonomy of unions important
       4. Union participation in political life legitimate