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Alberta Labour Relations Board Effective: 1 December 2003 Chapter 27(d) Bad Faith Bargaining BAD FAITH BARGAINING INTRODUCTION The Labour Relations Code requires unions and employers with bargaining relationships to meet with each other and bargain in good faith. They must make every reasonable effort to enter into a collective agreement. Section 60 states that one party serving notice on the other to commence collective bargaining triggers the duty to meet and bargain in good faith. If one pa
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  Alberta Labour Relations Board Chapter 27(d)Effective: 1 December 2003 Bad Faith Bargaining BAD FAITH BARGAINING INTRODUCTION   The  Labour Relations Code requires unions and employers with bargaining relationships to meetwith each other and bargain in good faith. They must make every reasonable effort to enter into acollective agreement. Section 60 states that one party serving notice on the other to commencecollective bargaining triggers the duty to meet and bargain in good faith. If one party feels the other is failing to meet or failing to bargain in good faith, that party may file a complaint with the Boardalleging a breach of the duty to bargain in good faith. This policy describes: ã statutory provisions; ã  bad faith bargaining issues; ã  processing complaints; and ã remedies.Unfair labour practice complaints such as interfering with the representation of employees by a tradeunion are often filed in conjunction with bad faith bargaining complaints. This policy is only about bad faith bargaining. For information on unfairs, see: [ Unfair Labour Practices by Employers,Chapter 27(b);Unfair Labour Practices by Trade Unions, Chapter 27(c) ]. STATUTORY PROVISIONS   Section 60 of theCodeprovides: 60(1) When a notice to commence collective bargaining has been served under this Division, the bargainingagent and the employer or employers' organization, not more than 30 days after notice is served, shall(a) meet and commence, or cause authorized representatives to meet and commence, to bargaincollectively in good faith, and(b) make every reasonable effort to enter into a collective agreement.(2) The bargaining agent and the employer or employers' organization shall exchange bargaining proposalswithin 15 days of the first time they meet for the purpose of collective bargaining or within any longer timeagreed on by the parties.(3) No employer, employers' organization or bargaining agent and no authorized representative acting onbehalf of any of them, after having served or having been served with a notice to commence collectivebargaining pursuant to this Division, shall refuse or fail to comply with subsections (1) and (2). Section 1 defines collective bargaining, bargaining agent and collective agreement. 1  Alberta Labour Relations Board Chapter 27(d)Effective: 1 December 2003 Bad Faith Bargaining 1 In this Act,(a) bargain collectively or collective bargaining means to negotiate or negotiation with a view to theconclusion of a collective agreement or the revision or renewal of a collective agreement;(b) bargaining agent means a trade union that acts on behalf of employees in collective bargaining or asa party to a collective agreement with an employer or employers' organization, whether or not thebargaining agent is a certified bargaining agent;...(f) collective agreement means an agreement in writing between an employer or an employers'organization and a bargaining agent containing terms or conditions of employment, and may include oneor more documents containing one or more agreements;   BAD FAITH BARGAINING ISSUES   Good faith bargaining requires the employer to recognize the union as bargaining agent. There isalso a further requirement on both parties to engage in a full and rational discussion of their  bargaining differences. In United Electrical, Radio and Machine Workers of America v. DeVilbissCanada Ltd. [1976] 2 CLRBR 101  , the Ontario Labour Relations Board summed up the statutoryrequirement to bargain in good faith this way: The section imposes an obligation upon both employers and trade unions to enter into serious discussion withthe shared intent to enter into a collective bargaining agreement. Once a trade union is certified as the exclusivebargaining agent of employees within an appropriate bargaining unit the employer of those employees mustaccept that status of the trade union. It cannot enter into negotiations with a view to ridding itself of the tradeunion. And thus it can be said that the parties are obligated to have at least one common objective—that of entering into a collective agreement and s.14 is intended to convey this obligation. But this is not to say that theywill or are obligated to have common objectives with respect to the contents of any collective agreement theymight enter into. The legislation is based upon the premise that the parties are best able to fashion the law thatis to govern the work place and that the terms of an agreement are most acceptable when the parties who liveunder them have played the primary roles in their enactment. In short, the legislation is based upon the notion of voluntarism and reflected in the many administrative and judicial pronouncements that neither trade union nor employer is, by virtue of the bargaining duty, obligated to agree to any particular provision or proposal.Therefore, while they must share the common objective to enter into a collective agreement, the legislationenvisages that they have differences with respect to just what the content of that agreement should be andthose differences may force the parties to have recourse to economic sanctions. The Board determines exactly what constitutes bad faith bargaining on a case-by-case basis. Thereare, however, some general issues that often form the basis of these complaints. Failure to Meet    Failure to meet may involve: ã Refusing to meet once notice to bargain is served: TheCodeallows a trade union or anemployer to require the other party to a bargaining relationship to meet and engage incollective bargaining. Notice to commence collective bargaining can be served by or upon acertified bargaining agent (Section 59(1)) or a voluntarily recognized trade union (Section42). The responsibility to bargain is the same in both instances. 2 ã Missing procedural steps: Section 61 of theCodestipulates that the notice to commence  Alberta Labour Relations Board Chapter 27(d)Effective: 1 December 2003 Bad Faith Bargaining  bargaining must contain certain information such as the names of residents of Alberta whoare authorized to bargain collectively, conclude an agreement and sign an agreement.Information on ratification procedures must also be exchanged, if asked for. ã Refusing to attend further meetings: Attending negotiating meetings is part of an ongoingobligation to bargain in good faith. The obligation to remain available to bargain continuesduring a strike or lockout. A party is not obliged to attend to bargain where meeting wouldobviously be futile. A party must do more than show up. ã Attending meetings unprepared to bargain: Both parties must prepare themselves to bargain and engage in real discussions aimed at reaching an agreement.   Undermining the Union   Undermining the union may involve refusing to recognize the union as bargaining agent or negotiating directly with employees instead of through their bargaining agent. Section 40(1) of theCodeoutlines the effect of certification. 40(1) When a trade union becomes a certified bargaining agent, it(a) has exclusive authority to bargain collectively on behalf of the employees in the unitfor which it is certified and to bind them by a collective agreement, and(b) immediately replaces any other bargaining agent for employees in the unit for whichit is certified.   Reading this with Section 60(1) of theCode, employers must recognize a union’s statutory role as bargaining agent for its employees and negotiate with the union, not directly with the employees.This must be balanced with an employer’s right to communicate with employees.Sections 130 and 147(3) freezes terms and conditions of employment during bargaining until a strikeor lockout occurs. Once a strike or lockout occurs, an employer may impose working terms outsideits prior bargaining position. See: [ Section 147(3) ]. Interim terms that clearly exclude the union fromthe workplace and are intended to undermine the union’s role, may be a breach of theCode. Surface Bargaining    Surface bargaining is bargaining conduct which appears to be collective bargaining but in fact isinconsistent with the intent to enter into a collective agreement as required by Section 60(1)(a).These complaints can involve: 3  Alberta Labour Relations Board Chapter 27(d)Effective: 1 December 2003 Bad Faith Bargaining the circumstances which arise when one party reneges on a proposal; ã reactivating signed-off proposals.; ã adding new proposals late in the dispute (this is sometimes referred to as “receding horizon bargaining”); or  ã stalling by one party during ongoing but unproductive negotiations (“surface bargaining”). Illegal Bargaining Proposals   Illegal bargaining proposals may involve: ã Proposals in conflict with the  Labour Relations Code or other statutes: Some complaintsdeal with bargaining proposals alleged to be in direct conflict with collective bargaininglegislation or other statutes, such as employment standards or human rights legislation. For example, Section 59(2) of theCodeoutlines the timing of serving notice to commencecollective bargaining. It states that the timing can be lengthened if provided for in acollective agreement. A proposal shortening this period would be in conflict with theCode.Proposals to close off “open” or “window” periods established by theCodewould also be prohibited. See: [  AUPE 99 v. Rivercrest Lodge Nursing Home [1992] Alta. L.R.B.R. 486; Window Periods, Chapter 24(h) ]. Proposals dealing with issues covered by the  Employment Standards Code , if less than the minimum standards provided in that legislation, would alsoconflict. See: [  Employment Standards Code    , Chapter 15(b) ]. ã Proposals in conflict with terms already agreed to by the parties: Some complaintscontend that a proposal conflicts with terms of the collective agreement already agreed to bythe parties. The Board will deal with these matters only if the offending party pushes theissue to impasse. Impasse is reached when one party remains insistent on its position withouta realistic possibility of change. See: [  Brewery Workers 287 v. Molson Breweries Ltd. [1991]Alta. L.R.B.R. 587; UFCW 1118 v. Airtex Manufacturing Partnership [1991] Alta. L.R.B.R.783]. PROCESSING COMPLAINTS   A party making a complaint about a breach of Section 60 can do so by using the optional Boardform or by letter. See: [  Information Bulletin #2 ]. The applicant must include: ã names, addresses, phone numbers and contact persons for all parties; ã the section(s) of theCodeallegedly violated; ã details which explain how the section of theCodewas violated; and ã remedy desired.The Director of Settlement reviews the complaint for completeness, see: [  Particulars, 19(b)and  Accepting and Processing Complaints, Section 27(a) ]. Once satisfied, stamp the complaint received by the Board. Enter the matter on the database and create a process file. The Director then decides 4
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