Christian Labour Association of Canada

Submission to Section  3 Committee 

To: Labour Relations Code Review Committee
From: John R. Sutherland, Public Affairs
Date: 5/23/2003
Re: Labour Relations Code Review

We are pleased to submit our views on changes to the Labour Code on behalf of the locals of the Christian Labour Association of Canada. The suggestions that follow are formed within the context of free choice, cooperative participation, adaptability, and the minimizing of harm to individuals. They are aimed at strengthening democracy for workers without imperiling the possibility for strong, effective union representation.

Issue 1: Definition of Employee

There is many a seventeen year old at burger-flipping establishments who gets called a manager. In low-paying service sector jobs it is easy to call someone a manager and then exempt him/her from the Act. Such actions place undue hardship on those so classified.

In addition, labour relations are strengthened when strong leadership guides both labour and management. Not everyone with leadership ability should automatically become part of management, as if this is the only place in which such skill is needed. For example, in the construction industry a working foreman is often the one to whom workers will look for their own representation. He often functions as a virtual steward. As such, he fills an invaluable "linking pin" position, encouraging labour-management communication and understanding. Should he be removed from the bargaining unit, his access to worker trust would cease and this link would be lost.

In general, we support the view of the Labour Relations Board trend towards a restricted definition of the position of manager. We suggest that an employee remain part of the bargaining unit except in cases where there is a demonstrable conflict of interest in favour of the employer, and that a demonstrable lack of community of interest exists with the bargaining unit.

Issue 3: Unfair Labour Practices (Part 2)

It is a labour relations truism that the power relationship between labour and management is unequal. Management can hire, fire, train, compensate, promote, demote, and so on. Employees can work hard or not work hard and be disciplined. To put it crassly, management has every opportunity to enable or coerce--the workers have little or no such power.

Therefore, the party with the greater power would logically have greater restrictions to achieve balance. For an unfair labour practice to be equally applied is not necessarily equitable.

Issue 4: Duty of Fair Representation Complaints (Secs. 12 & 13)

We are favourably impressed with the recommendation regarding this issue made to the Minister of Labour in February 1998 by the Labour Relations Code Review Committee (Vince Ready et al).

Our version of that recommendation is as follows: In those instances when a worker charges that his/her union has not met its duty to provide him/her with appropriate representation, we recommend a mediative first step option involving an Industrial Relations Officer. This practice would be consistent with how other types of problems are handled; e.g., unfair labour practices and outstanding grievances. The LRB now requires that virtually every complaint under section 12 (DFRs) go to a hearing. Not surprisingly most fail. We want to see the set up of a non-adjudicative, less adversarial, and less costly process. A beneficial side effect of our recommendation is that the workload of the LRB chairs would be reduced with every case that would be settled by mutual agreement, rather than by adjudication.

In summary, we agree with the emphasis on mediation, but not at the expense of denying someone a hearing.

Issue 5: Changes in Union Representation (Sec. 19)

CLAC is well acquainted with the phenomenon of raiding. In the past two months CLAC responded to a raid request against a large union. This led, of course, to a good deal of instability within the bargaining unit as the merits of worker representation were debated. That same large union, and many others, also attempts to raid CLAC on a yearly basis, with similar instability for both workers and management as a result. While we champion the employee's right to choose, we believe that permitting it on an annual basis as British Columbia does now, is too frequent.

We refer the Committee back to its own purposes, particularly item 10. from the "Section 3 Committee" Terms of Reference/Issues document of December 18, 2002; viz, "In undertaking its discussion and analysis of the Issues, the Committee has been asked to expand the parameters of current labour relations thinking, to focus on best practices, and to consider innovative options outside of the traditional approach."

Attached for your information is a chart outlining Open Season and Decertification Dates for all jurisdictions. You will notice that British Columbia, by far, provides for the greatest amount of potential labour instability. If best practices are to be considered, then the emphasis on workplace stability in other jurisdictions should be carefully considered.

In the interests of both free choice and workplace stability, we recommend that the timeframe which best applies to raid applications is the seventh and eighth months of the last year of any contract of up to three years duration, and the seventh and eighth months of each contract year beyond three years. Where the parties to a long-term contract decide that an early termination is desirable, there should be no collateral benefit in avoiding the open season. Thus, we recommend that where the parties terminate early, the first two months of the succeeding collective agreement be treated as an open period for raid purposes.

It should be noted that our recommendation is somewhat contrary to our self-interest. As one of the few significant independent unions in a labour relations world characterized by “no raid pacts”, we are the most common target for raids. We win far more than we lose.

We also believe that the possibility of being raided does have a good side effect; i.e., the possibility of being raided can promote accountability and make a union more open to meaningful change. Nevertheless, we feel that good public policy demands the recommendation that we are making. As it is now, the frequency of raids permitted under the Code is unnecessarily disruptive.

Issue 6: Revocation of Bargaining Rights (Sec. 33)

When a union applies for its first certification, the Labour Board considers the appropriateness of the bargaining unit. The commonality of interests test must be met. However, it is conceivable that evolving circumstances could lead to that commonality of interests breaking down. We have seen this most recently in health care.

For instance, a nursing home organized by the HEU recently faced the prospect of closure. The employer claimed that it could not sustain the wages paid to non-medical staff. HEU was not willing to open up its collective agreement for one bargaining unit. As a result, HEU lost the entire bargaining unit to decertification, as the non-clinical staff just outnumbered clinical staff. From the point of view of job stability for all of the workers in the home, a partial decertification could be argued.

Thus we recommend that the Code should explicitly allow for partial decertification of a bargaining unit only if there is a clear separation of community of interest as a result of the evolution of the bargaining unit.

Issue 7: Revocation of Bargaining Rights (Sec. 33)

We do not agree that a union's certification should be revoked after a lengthy closure. It is not uncommon in the construction industry for a large company to decide to cease doing business in a particular province for strategic reasons, occupy itself for many years elsewhere, and then return. Should the Code be altered in a certain fashion, getting rid of the union could become another strategic reason.

With great respect, providing a means whereby a company could obtain a desired decertification by ceasing to do business in the province for some specified period of time could be an excellent motivation for some large, diverse companies to exit British Columbia for that period of time. How could this be to the benefit of the province in any way?

Issue 8: Applications for Certification (Sec. 33(10))

On the one hand, decertifications are not like raids. They can happen at any time. There are cases where an employer could (and we know from experience, does) "influence" a decertification, timing it for a low tide of union support. Given this reality, the argument could be made that the incumbent union should be given a leg up in seeking representation.

But it may be that the Committee is of a mind to place some kind of equal bar on all unions. That leaves the workers who have decertified a union they simply don't like at the mercy of an employer who can now do what he wants for ten months. If the change that the government is contemplating is inevitable, the waiting period should be shortened from ten months to two.

Issue 9: Successor Rights and Obligations (Sec. 35)

Issue 9 differs from issue 7. A company may choose for strategic reasons (labour relations or otherwise) to cease doing business in a particular jurisdiction, as we noted above. Bankruptcy is not typically a strategic choice, however. It could be argued, therefore, that bankrupts should be treated differently with respect to issues of successorship.

Having said that, some bankruptcies could be (and have been) strategic; i.e., some companies have found the bankruptcy route to be a useful one to deal with various businesses challenges, including labour costs. Bankruptcy should not be a tactic to get rid of a union.

Issue 10: Successor Rights and Obligations (Sec. 35)

We support the extension of successor rights as set out in the aborted Bill 44. That bill provided for successorship of contracted services in the areas of building cleaning services, food services and security services. Workers in these sectors are generally poorly paid, and work under service contracts in which the labour component represents as much as 85% of the contract. We submit that it is unjust to expose lower-paid unionized employees to contract tendering in which the inevitable result is a lower bid with loss of work and even lower wages. Strengthened successor provisions will ensure that the purchaser of the services and the competing contractor are obliged to honour the provisions of an existing collective agreement. One should not be able to beat a union by changing contractors.

CLAC has had the experience with a dominant organization such as YVR that negotiating on behalf of service employees with little clout is virtually impossible. The employer simply says that YVR will give them only a certain amount of money, and any attempt to improve wages will simply mean that YVR will pull the contract. As a minimum, some form of successorship should apply when contracting out. The company should get the certification, if not the collective agreement. When the prime function of the company is labour (e.g., security services, custodial), one should not disenfranchise the rights of those who perform the service.

Issue 11: Mergers of Union Locals (Sec. 37 & 150)

When a union first applies for a certification, it must submit its constitution for the Board's scrutiny. Having once given its approval, why should the Board now be able to "rewrite" (or tamper with) that constitution at some later date. To put it another way, how is the Board a better vehicle for solving union matters than the union itself? If the union's structures are unworkable, it will adjust or die.

In summary, the Board should not be setting models of trade union governance, deciding for unions what their internal structure should be.

Issue 12: First Collective Agreements (Sec. 55)

Again we draw your attention to the recommendation made in 1998 by Ready, Lanyon, Gropper and Matkin. But we have amended their proposal slightly to read as follows:

We recommend the elimination of the strike vote requirement under the first agreement process. We further recommend that Sec. 55 may only be accessed after the parties have bargained collectively and have exhausted mediation under Section 74. As Ready et al note, “the strike vote requirement seems to be aimed at gauging employees’ support for a strike rather than the employees’ wish to conclude a collective agreement by arbitration. The result has been that employees have been denied access to the first agreement process because unions may have doubted continuing employee support due, for example, to a protracted negotiation process. Under such conditions, the union would understandably decline to take a strike vote.”

Issue 14: Expedited Arbitration (Sec. 104)

One of the purposes of the Code is the expeditious settlement of disputes. The CAAB is one of the few concrete ways in which that purpose finds meaning in the day to day of labour relations. Therefore we argue that the parties to a collective agreement should not be able to contract out of Section 104.

Open Season and Decertification Dates Regional Comparison - Alphabetical

Open Season and Decertification Dates Regional Comparison