Employment & Labour Law Take Home Exam
By: Shirley Yang
Date: November 14th, 2018
To: Pnina Alon-Shenker
Course Code: LAW529 – 011
Department: Law & Business
Issue #1: The parties are getting ready for the arbitration hearing
The Union will argue that Hygiene has no just cause to dismiss Jordin, and so her dismissal was not justified. While Hygiene will argue that they have “just cause” to dismiss Jordin because of previous disciplinary action and her initial denial of the allegation.
Hygiene will focus on the fact that this was not Jordin’s first incident, but it would not be strong enough. The Union will argue on the fact that Hygiene was too quick in deciding to dismiss Jordin and did not investigate or go through with arbitration. Jordin had a good performance record for the past ten years, although there were some cases of lateness, that has been dealt with, so it is not related to the current issue. Therefore Hygiene does not seem just in dismissing her.
The possible remedies are grievance or discipline. Hygiene could settle the issue of grievance with an appropriate arbitrator, allowing for both parties to settle the dispute quickly and easily. Hygiene could also administer discipline on Jordin, which requires them to investigate the issue and then decide on the proper form of action by using the William Scott 3-Step Analysis test (Doorey, 651).
Issue #2: UFCW would like to bring a legal action pertaining to the closure decision
The Union will argue that Hygiene had already hired a consulting firm regarding this issue, and was considering closing the plant, they participated in hiding important information during the negotiation process. Hygiene will argue that although they did hire a consulting firm regarding the possible closure, they had not decided until Aug 19, 2018, therefore, did not withhold any important information. They will also argue that the Union did not specifically ask about the issue, so they felt that they did not need to disclose the information.
The Union has a stronger argument because Hygiene has a legal obligation to reveal all relevant information that would affect the negotiation process. If Hygiene did not hire a private consulting firm or receive a recommendation on the course of action that they should have taken, then they would not have been hiding information. Hygiene should have understood that since the consulting firm had recommended closing the plant, it is relevant information to the negotiation. On the other hand, Hygiene will fail in their argument of not having decided because they should have brought up the fact of a possible closure during negotiation. Although a decision was not made, there was some level of intention towards closing it based on the recommendation received.
A potential remedy for this situation would be arbitration. This situation involves the creation of a collective bargaining agreement under mispresented information, so it is best to have an arbitrator decide on how to proceed. Having an arbitration will solve the problem in a relatively quick manner and provide a final, binding settlement by the arbitrator, without the stoppage of work (s. 48(1) of the OLRA). After reviewing the arguments, the arbitrator can decide how to proceed with the plant closure, and whether they require Hygiene to reopen or pay compensatory damages to the employees.
Issue #3: Hygiene would like to ensure the cosmeticians, and the cosmetician assistant show up for work
The Union will argue that limiting the right to strike is an impairment of their rights to associate in section 2(d) of the Charter. Hygiene will argue that according to the mandatory requirements of the collective bargaining agreement, there can be no strikes or lockouts during the length of the agreement, and if the union encourages its members to go on strike, they will breach the agreement.
Hygiene will have a stronger argument since both parties have already signed and are operating under a collective bargaining agreement, the union and its members are subject to adhering to the requirements. One of the mandatory requirements is a provision that prohibits strikes and lockouts so long as the agreement continues to operate (Section 46 of OLRA). Hygiene can tell the union that they cannot tell the cosmeticians to “call in sick” and prevent the business from operating. The Union’s argument will fail because of the limitation to the right to strike.
A potential remedy for this situation would differ depending on whether the action happened before or after the strike. If Hygiene wants to prevent a strike from happening, the action they should take would be through declaration under s. 100 of OLRA, which allows the labour board to direct the union to stop the illegal strike. It would be ideal to prevent the action so there will be minimal damage done to the relationship between the employer, employees and the union.
Issue #4: UFCW would like to challenge the results based on the email sent to all YourHealth employees
The Union will argue that the company’s tactic were unfair labour practices. According to Section 70 of the OLRA, it states that employers have the freedom to express their views but cannot use coercion, intimidation, threats, promises or undue influence in its communication with employees, which the company did in the email they sent out to the employees. The company will argue that it has the right to discipline its employees in whatever way they see fit but must show that their actions are not due to anti-union animus and there was no threat to fire or impose a penalty to keep persons out of a union. Section 72(c) says no threat to fire or impose a penalty to keep a person out of the union or quit the union. Employers are prohibited from doing anything that will interfere with the rights of the employees from joining a union (s.8 of the OLRA).
The Union has a stronger argument because the company had interfered by sending an email to all its employees which violates section 72(c) of the OLRA. The management of YourHealth had interfered with the voting results when they found out that their employees wanted to help, they had sent out an email to all of its employees, and that affected the votes.
A potential remedy could be compensation or allowing for another certification vote, but this time without the management interfering.
Issue #5: UFCW would like to challenge the new legislation
The Union will argue that by establishing a voting requirement to strike, the new legislation limits not only the union’s right to strike when there is no agreement, it also limits the union’s ability to negotiate deals with the employer due to the 75% favourable vote requirement. Hygiene will argue that by allowing the union to have the opportunity to strike during the term of the agreement, it will put the company at a disadvantage position.
The Union has a strong argument against the new legislation. Even though the right to strike is banned during the term of an agreement, it is usually allowed during the negotiation process to help the union. In this case, it is unlikely that by adding a voter requirement and limiting their right to strike outside the agreement is fair to the union under s. 1 of the Charter. The need for a 75% passing rate for strikes will make it harder to negotiate terms and is also very time-consuming. Hygiene also has a good argument because this new legislation would allow the union to strike during the term of the agreement if they felt that they wanted to negotiate or improve conditions in the agreement.
The ideal remedy for this situation would be to challenge the new legislation so that it can be amended or removed. Without the new amendment, it would allow the Union and Hygiene to continue with their agreement.