Duty to Bargain in Good Faith General Guidelines
The determination by a Labour Relations Board as to whether bad faith bargaining has occurred will depend on the particulars of the situation. Some general conclusions, however, can be drawn from Board decisions across the country and are provided for illustrative purposes. The B.C. Labour Relations Board Practice Manual provides additional assistance in assessing whether one party or the other is discharging its obligation to bargain in good faith.
The parties must meet — the employer must recognize the union as the exclusive bargaining agent for the employees. For the employer this means that
- Direct bargaining with another union, or with the employees themselves, is prohibited.
- Tactics such as disparagement of the union, discrimination against union negotiators or unionized employees, and spying or infiltration are forbidden.
- Neither party can object to the composition of the opposite party’s’ bargaining committee, and the union is free to include employees of another employer.
- While the employer may communicate its bargaining position directly to its employees, it must do so accurately and without disparaging the union.
- The employer must send to the bargaining table negotiators who have authority to make bargaining decisions, or who are close to those who do.
- The employer may not implement its wage proposals, even though the statutory "freeze" on changes in working conditions may have expired, before it negotiates them with the unions and reaches an impasse.
- The employer may not bypass union negotiators by granting a wage increase, even after the right to strike or lockout accrues, before a bargaining impasse is reached with the union.
- The employer may not demand that bargaining await the outcome of negotiations with other parties.
The parties must engage in rational, informed discussion — To conclude a collective agreement, there must be discussions. As a result, Labour Relations Boards have held that:
- The parties may not refuse to meet, and may not engage in perfunctory attendances at meetings, while taking inflexible positions.
- The parties must be ready to meet with reasonable diligence and ought not to break off negotiations arbitrarily.
- The parties should be prepared to justify particular negotiating positions.
- The parties should be prepared to commit a significant amount of time and preparation to the collective bargaining process.
- The employer must, if requested, provide relevant information to the union, including information regarding existing wages and working conditions, and if inability to pay is asserted by the employer, financial information.
- While tactless and intemperate remarks may be tolerated, the parties must be honest and may not make deliberate misrepresentations.
- One party may not insist on discussion of one matter to the exclusion of others, or on settlement of one matter before other matters are discussed.
- A proposal for cutbacks or a reduction in wages may require economic justification.
- A party may not refuse to negotiate simply because a termination application has been made, or a judicial review proceeding is pending, but a sale of a business may justify delay pending clarification of the union’s bargaining rights.
- The employer must advise the union of firm plans or decisions that will affect the employees during the term of the contract, and must, if asked, disclose plans that have a real likelihood of significantly affecting the bargaining unit.
The parties must intend to enter into a collective agreement — Labour Relations Boards have held that:
- A party may not demand that negotiations be conducted in public, that members of management be included in the bargaining unit, or that the parties waive the protection of labour relations legislation.
- The parties may not threaten an illegal strike or lockout.
- While a party can put forward a position that would predictably fail to receive acceptance, it may not make a demand that is deliberately inflammatory or is tailor-made for rejection.
- The union may not, by refusing to negotiate, force the employer to rescind lawful discipline of strikers who engaged in illegal conduct.
- The employer may not threaten to close unless this is in fact an economic reality.
- A party may not strike or lockout in order to secure agreement that the bargaining unit be altered, or that work jurisdiction be reorganized where jurisdictional dispute procedures exist.
- A party may not fail to seek ratification where it is a term of the settlement.
- An employer may not refuse to accept an offer until the union holds a ratification vote.
- A party may not strike or lockout after agreeing to interest arbitration.
- A party may not make sudden and unjustified changes in position—for example, change its position on monetary issues, without evidence of changed economic circumstances.
- An employer may not foster dissension among employees, favour anti-union employees, or suggest economic suffering if union representation continues.
- An employer may not, at the last minute, refuse to enter into a collective agreement when all terms have been agreed upon.
- A party may not unduly delay execution of a negotiated settlement in order to reduce financial obligations.