1. Insistence by One Party on the Format of Bargaining
    Neither the union nor the employer can negotiate to impasse a matter of protocol such as the format of bargaining - two tier provincial and local split of issues, for example. This does not mean that a proposal to change the format of bargaining cannot be made. One party cannot, however, insist on this change to the point of impasse. To do so would unreasonably inhibit the process of achieving an agreement which would therefore be considered a violation of Section 11.
  2. Ratification Procedure
    B.C. Labour Relations Code Section 40: Additional voting requirements

    1. Subject to section 17 (2), all employees in a bargaining unit, whether or not they are members of the trade union or of any constituent union of a council of trade unions, may participate in votes held by a trade union of its members on a question of whether to strike or whether to accept or ratify a proposed collective agreement.
    2. If a trade union coordinates collective bargaining on behalf of more than one bargaining unit, the results of any vote conducted by the trade union of a particular bargaining unit must not be counted until all bargaining units engaged in the bargaining have voted.
    3. If a vote is conducted by mail, then for the purposes of this Code, the vote is deemed to have been held on the day that ballot papers are left with a post office as defined by the Canada Post Corporation Act for transmission to the persons who are to vote or, if the ballot papers are left for that purpose with the post office on different days, on the last of those days.

    Ratification is not required by law in this province. Nevertheless, it is a virtually universal practice of unions to put agreements to ratification by the members of the bargaining unit. Ratification votes are regulated by Section 40 of the Code.

    Ratification, therefore, is a process to be conducted by the certified union among the members of the bargaining unit.

    A legal opinion on this subject concluded:

    We have found no cases in which a union has attempted to ratify a tentative collective agreement among persons outside the bargaining unit, nor to make it subject to approval by a third party. However, it is clear that the Code contemplates bargaining by the local and ratification only by the employees in the bargaining unit. While the matter is not free from doubt, we consider it likely that the Labour Relations Board would find it to be a violation of the duty to bargain in good faith for a local to make its agreement at the table subject to ratification by persons outside the bargaining unit such as SBC or some other provincial body or assembly.

    Excerpt from correspondence: Alan Francis (Harris & Co.)
    to Hugh Finlayson (BCPSEA)
    June 22, 1999
    File No. 000572.050

  3. Authority to Bargain
    Experienced negotiators usually state the extent of their authority at the outset of bargaining. For example, a union normally discloses that any agreement at the table is subject to ratification by the bargaining unit. Each party is entitled to know the extent of the authority of the person across the table and the Labour Relations Board has encouraged parties to make such disclosures early in the bargaining. If the local intends to make any agreement or any part of an agreement subject to ratification outside the bargaining unit, it should disclose that at the outset. As a strategic matter, we would recommend that school districts ask their locals for such disclosure.
  4. Changing Proposals
    There are many cases dealing with changes in proposals at the bargaining table. There are no clear rules by which the replacement of proposals with new proposals, or even the repudiation of previous agreements at the table is a violation of the duty to bargain in good faith. The LRB has indicated that each case will be examined on its facts to determine whether the act constitutes an unreasonable inhibition of the conclusion of an agreement, or signifies an intent not to enter into an agreement.Changes in proposals are more likely to be a violation of the duty when they occur late in bargaining. In LaFarge Canada, IRC No. C219/91, the LRB referred to the "receding horizon" doctrine as one in which one party "leads the other 'down the garden path' toward settlement, and then abruptly removes the settlement opportunity from the other's grasp when resolution is near." Such conduct may be a breach of the duty.