Employer engages in bad faith bargaining, unfair labour practices

Sheperd's Care announced mass layoffs

A union’s contention that an employer engaged in bad faith bargaining and unfair labour practices when it announced mass layoffs was validated in April by the Alberta Labour Relations Board.
Sheperd’s Care Foundation operated seven seniors’ care facilities in Edmonton. The collective agreements at six of these expired in August and September 2014 and the Alberta Union of Provincial Employees served notice to commence collective bargaining in June or July. 
As of Sept. 3, 2014, the parties had not met for collective bargaining, however, Sheperd’s president and CEO, John Pray, advised the union in writing of its decision to lay off all support service workers at its Edmonton facilities. It also planned to contract out the work.
The following day, the HR director met with the union’s bargaining spokesperson at 12:30 p.m. to discuss the changes, and at 1:30, the employer started informing employees of its decision.
Section 60 of the province’s Labour Relations Code states that when a notice to commence collective bargaining has been served, there’s a duty to engage in good faith bargaining and make every reasonable effort to reach an agreement, said Lyle Kanee, vice-chair of the board. And that duty includes an obligation to disclose relevant information.
“When employers disclose significant decisions after notices to bargain have been served, unions must be provided with an opportunity to digest the information disclosed and to respond to it in bargaining with the employer before the employer communicates its decision directly to the affected employees.”
If the union knew Sheperd’s planned to contract out entire bargaining units or significant parts of them, it most likely would have moved quickly to get to the bargaining table, said Kanee.
“The duty applies to all major decisions, whether they are permissible under the collective agreement or not… the failure to give the union time to digest the decision and respond was intentional… Employers can’t avoid the duty to engage in rational discussion by simply saying that they didn’t think the union will have anything useful to say. The employer’s conduct was disrespectful of the union’s role as exclusive bargaining agent.”
As a result, Sheperd’s violated the Labour Relations Code when it failed to provide the union with sufficient notice to consider and respond to its decision around layoffs, said Kanee.
As for the issue of unfair labour practices, section 147(3) of the code deals with “freezes” and says if a notice to commence collective bargaining has been served, no employer shall “alter the rates of pay, a term or condition of employment or a right or privilege of any employee represented by the bargaining agent or of the bargaining agent itself until the right of the bargaining agent to represent the employees is terminated or a strike or lockout commences.”
The purpose of the section is to prevent employers from unilaterally implementing unusual changes that could destabilize the bargaining process or undermine employee support for the union, said Kanee.
Sheperd’s decision to contract out all or substantially all of the bargaining unit works violated this rule because it was not of a “routine, frequent or smaller nature,” meaning it was a “significant and unusual change.”
The employer’s decision also jeopardized the integrity of the bargaining unit as it was “obliterated” or “severely damaged” at the various facilities. The bad faith bargaining was another reason for the violation, as was the decision’s effect in destabilizing the collective bargaining process and subverting employee support for the union, said Kanee.
The board reserved its decision on remedy and said a board officer would arrange dates for a resolution conference and hearing on remedy.
Reference: The Alberta Union of Provincial Employees and Sheperd’s Care Foundation. Vice-chair — Lyle Kanee. For the employer, Albert Lavergne. For the union, Carol Drennan, William Rigutto, Jim Petrie, Larry Dawson. April 28, 2016.

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