Canadian Industrial Relations 3rd

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Exam

Name___________________________________

MULTIPLE CHOICE. Choose the one alternative that best completes the statement or answers the question.

1) An important consequence of the decree system is that 1)

A) employers' associations are more prominent in Quebec than in other provinces.
B) Quebec's unionization rates are low.
C) extended agreements deal with union activities.
D) there are employers' associations in the construction industry.
E) Quebec does not have a labour relations board.
Answer: A
Explanation: A)
B)
C)
D)
E)

2) Labour boards in most provinces have all but which one of the following remedies available to 2)
them?
A) to subpoena witnesses
B) to order unfairly discharged employees reinstated
C) to enter workplaces to inspect work processes and questions workers and managers
D) to certify a union with less than majority support where an unfair labour practice has
prevented employees' true wishes from becoming known
E) to close down unsafe workplaces
Answer: E
Explanation: A)
B)
C)
D)
E)

3) The labour board's job, in deciding certification cases, is 3)

A) to ascertain the union's level of support.
B) to determine the appropriate bargaining unit.
C) neither of the above.
D) both of the above.
E) to simply hold votes and otherwise let the parties fight things out themselves.
Answer: D
Explanation: A)
B)
C)
D)
E)

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4) Why have many Canadian jurisdictions moved away from three-person arbitration panels to single 4)
arbitrators?
A) because the use of single arbitrators saves time and money, and the decisions are just as good
B) because of the duty to accommodate
C) because single arbitrators give better decisions
D) to help keep unqualified people out of arbitration
E) because there are not enough arbitrators available
Answer: A
Explanation: A)
B)
C)
D)
E)

5) What would be the best description of the impact the Charter has had (at least up until the year 5)
2001) on Canadian labour relations law?
A) liberalizing
B) restrictive
C) massive
D) minimal
E) variable
Answer: D
Explanation: A)
B)
C)
D)
E)

6) All but which one of the following groups of professionals is excluded from unionization rights in 6)
at least three Canadian provinces?
A) lawyers B) engineers C) teachers D) architects E) dentists
Answer: C
Explanation: A)
B)
C)
D)
E)

7) Canadian labour relations law differs from American law in all but which one of the following 7)
ways?
A) in being relatively voluntarist
B) with respect to "right-to-work" provisions regarding union security
C) with respect to jurisdiction
D) with respect to anti-strikebreaker provisions
E) in the way the law is enforced
Answer: A
Explanation: A)
B)
C)
D)
E)

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 8) Today, the courts' major role in the IR system is 8)
A) issuing injunctions limiting picketing.
B) convicting striking workers on civil conspiracy charges.
C) handling grievances.
D) regulating bargaining-table behaviour.
E) jailing union organizers on criminal conspiracy charges.
Answer: A
Explanation: A)
B)
C)
D)
E)

9) All but which of the following are or may be a result of Canada's legislative fragmentation? 9)
A) frequent innovation in labour law
B) difficulties in determining whether an enterprise falls under federal or provincial jurisdiction
C) a high incidence of strikes
D) a highly decentralized bargaining structure
E) a clear national standard in labour law
Answer: E
Explanation: A)
B)
C)
D)
E)

10) The best description of the nature of industrial conflict under labour relations law would be 10)
A) civilized.
B) non-existent.
C) anarchic.
D) rough, but not out of hand.
E) no holds barred.
Answer: D
Explanation: A)
B)
C)
D)
E)

11) All but which one of the following is an advantage of using labour boards rather than courts to 11)
administer labour legislation?
A) Problems are generally resolved more quickly by boards.
B) Boards have expert staff available to them.
C) Judges generally know more about IR than board members.
D) Boards are more concerned with finding practical solutions to workplace problems.
E) Boards include both management and union representatives.
Answer: C
Explanation: A)
B)
C)
D)
E)

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12) All except which one of the following would be considered an unfair labour practice in one or more 12)
Canadian jurisdictions?
A) a union kicking people off its executive committee for refusing to engage in an illegal wildcat
strike
B) a union making a financial contribution to an employer's association
C) management promising a 10% pay raise to workers during a union organizing drive
D) locking out employees after conciliation has failed and several weeks have elapsed
E) hiring professional strikebreakers
Answer: D
Explanation: A)
B)
C)
D)
E)

13) From a union perspective, what is the most important potential benefit of first-contract arbitration 13)
provisions?
A) They can help unions achieve certification.
B) They allow ministerial discretion in their application.
C) They offer unions permanent protection against unfair employer labour practice.
D) They can prevent employers from refusing to bargain seriously in order to prevent the union
from achieving a collective agreement.
E) They allow unions to avoid the unpleasant task of bargaining with unwilling employers.
Answer: D
Explanation: A)
B)
C)
D)
E)

14) Why is the P.E.I. freedom to communicate provision potentially of great concern? 14)
A) because it permits direct communication with workers on collective bargaining issues and
could thus encourage employers to circumvent the collective bargaining process itself
B) because it could affect the union status of millions of workers
C) because it could affect certification votes in the province
D) because it permits employers to threaten and intimidate their workers
E) because it's a blemish on an otherwise strongly pro-labour act
Answer: A
Explanation: A)
B)
C)
D)
E)

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15) Which of the following plays the most important role in administering Canadian labour relations 15)
legislation?
A) labour relations boards
B) the courts
C) the police
D) arbitration panels
E) single arbitrators
Answer: A
Explanation: A)
B)
C)
D)
E)

16) All but which one of the following occurred when industrial activity was carried out in Canada 16)
without labour relations law?
A) a low standard of living for most working people
B) extensive property damage from strikes
C) death and loss of life from strikes
D) frequent grievances
E) inadequate health and safety protection in workplaces
Answer: D
Explanation: A)
B)
C)
D)
E)

17) The major rationale for the exclusion of management from unions is 17)
A) these people earn enough already.
B) to avoid conflict of interest.
C) managers don't want to join unions.
D) the unions don't want them in.
E) non-existent.
Answer: B
Explanation: A)
B)
C)
D)
E)

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18) A legislative provision designed specifically to address the problem of workplace violence during 18)
strikes is
A) anti-strikebreaker provision.
B) reverse onus provision.
C) technological change provision.
D) expedited arbitration.
E) first-contract arbitration.
Answer: A
Explanation: A)
B)
C)
D)
E)

19) Of the following five provinces, the one with the most restrictive labour act is 19)
A) Quebec.
B) B.C.
C) Alberta.
D) New Brunswick.
E) P.E.I.
Answer: C
Explanation: A)
B)
C)
D)
E)

20) Which of the following has been one of the criticisms of collective bargaining from people on the 20)
left in recent years?
A) It takes away too much power from the state.
B) It wastes too much time in senseless ritual and posturing.
C) It doesn't work very well because power is strongly tilted toward big business.
D) It is an intrusion on individuals' freedom to choose.
E) It takes away too much control from employers and managers.
Answer: C
Explanation: A)
B)
C)
D)
E)

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21) The reason why unions generally prefer a card count to a vote as a means of establishing 21)
certification is
A) because it's what they're used to.
B) because a card count allows unions to harass and intimidate workers into joining.
C) voting is costly.
D) with a card count, the labour board doesn't have to get involved.
E) because if there's a vote, employers can get involved and influence the process.
Answer: E
Explanation: A)
B)
C)
D)
E)

22) Comprehensive private sector bargaining legislation first took effect in Canada in which year? 22)
A) 1907 B) 1976 C) 1967 D) 1944 E) 1872
Answer: D
Explanation: A)
B)
C)
D)
E)

23) The most important difference between PC 1003 and the American National Labor Relations Act was 23)
A) the latter's use of a vote to verify union certifications.
B) the former's incorporation of compulsory conciliation.
C) the former's establishment of a board to enforce the act.
D) the latter's exclusion of agricultural workers.
E) the former's exclusion of management.
Answer: B
Explanation: A)
B)
C)
D)
E)

24) Quebec's decree system applies mainly in 24)

A) the public sector.
B) low-wage industries made up of smaller firms.
C) rural areas.
D) heavy "core" industries like steel and autos.
E) the para-public sector.
Answer: B
Explanation: A)
B)
C)
D)
E)

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 25) Overall, the most liberal labour act is that of 25)
A) Quebec.
B) the federal jurisdiction.
C) Alberta.
D) Saskatchewan.
E) Ontario.
Answer: B
Explanation: A)
B)
C)
D)
E)

SHORT ANSWER. Write the word or phrase that best completes each statement or answers the question.

26) Why is union certification generally easier in Canada than in the U.S.? 26)
Answer: Several Canadian jurisdictions still use a count of signed members rather than a
vote, as is the case in the U.S. It is generally acknowledged that when certification is
through a vote, employers can have a hand in the process and may well result in the
failure of the certification drive. Even those Canadian jurisdictions which use votes
normally use "quickie" votes which must normally be conducted within five to ten
days of the certification application and hence allow less chance for employer
manipulation of the process than the lengthy campaigns characteristic of the
American system.
Explanation:

27) Why were unionism and collective bargaining slow to evolve in Canada? 27)
Answer: The major reasons for this slow evolution were the country's relatively late
industrialization, its severely fragmented labour movement, the tendency of
Canadian unionists to join American rather than Canadian unions in the nineteenth
and early twentieth centuries, and determined employer and government
opposition.
Explanation:

28) What's different about collective bargaining in the construction industry in Quebec? 28)
Answer: Many provinces have centralized collective bargaining in construction in the interest
of maintaining peace in the industry. But Quebec has carried things a step further,
by requiring all construction workers to hold a Quebec Construction Commission
card and to belong to one of five labour associations legally entitled to represent
construction workers in the province. These five unions bargain sector-specific
issues with five sector-based employers' associations, and more general issues with
a general construction employers' association to which all construction employers
must belong. Union certification as such does not exist in Quebec's construction
industry.
Explanation:

8
29) How much use has the Charter been in striking down exclusion laws on constitutional 29)
grounds?
Answer: Until the Dunmore case in 2001, which struck down Ontario's agricultural exclusion
on Charter grounds, none whatever. In fact, exclusion laws changed far more in the
20 years before the Charter took effect than they have in the 15 years since it took
effect. It will be interesting to see whether the Dunmore case will prompt successful
challenges of other exclusions, such as those of professionals and domestics.
Explanation:

30) What are the provisions which would appear to have the greatest actual or potential effect 30)
on union membership growth?
Answer: 1) Exclusion provisions, because they determine the size of the "eligible" worker
pool from which potential union members may be drawn. 2) Certification
procedures, because they may significantly influence the likelihood that a union will
be certified. 3) First-contract arbitration provisions, because they may increase the
likelihood that a new union will actually attain a collective agreement, which in turn
increases the probability that the organization in question will continue to be
unionized.
Explanation:

31) Are mid-term strikes allowed in Canada? 31)

Answer: No. Every jurisdiction imposes a "peace obligation" on both unions and employers
during the life of the agreement. This means that while the agreement is in force,
unions cannot strike nor employers lock out. Disputes over the interpretation of the
collective agreement must be submitted to a grievance procedure culminating, if
necessary, in binding arbitration. (Note: Refusal to work in unsafe conditions,
provided for under the health and safety legislation discussed in Ch. 7, does not
constitute a strike).
Explanation:

32) What's the basis for David Beatty's criticism of LRL and collective bargaining? 32)
Answer: Beatty's concern is that LRL and collective bargaining tend to lead to a "tyranny of
the majority," while taking little account of the needs of the least fortunate members
of society, such as domestics and farmworkers, who are often excluded from
unionization rights under LRL.
Explanation:

33) Though most industrial relationists like labour boards' accommodative approach, some 33)
have concerns about it. Why is that?
Answer: Critics like John Godard fear that, in their quest to be accommodating, labour boards
haven't gone far enough in preventing employers from committing unfair labour
practices. They also believe that existing penalties don't serve as much of a deterrent
against such practices.
Explanation:

34) What's the most compelling reason for having labour relations legislation (LRL)? 34)
Answer: To prevent the suffering, chaos, injustice, and violence that would almost certainly
occur if it did not exist. In particular, LRL's regulation of strikes makes them far less
violent and less likely to result in loss of life or bloodshed than they would
otherwise be and were before LRL existed.
Explanation:

9
35) What are two exceptions to Canadian LRL's general emphasis on processes rather than 35)
outcomes.
Answer: Both provisions allowing for the imposition of a first collective agreement in cases
where the labour board believes an employer has not bargained in good faith with
an eye to concluding an agreement, and provisions allowing a labour board to
certify a union with less than majority support in cases where an employer's unfair
labour practices have prevented the employees' true wishes from becoming known.
Explanation:

36) What do labour boards do? 36)

Answer: Their major functions are overseeing union certification and decertification and
policing unfair labour practice. In recent years, their jurisdiction has expanded to
include the power to issue directives concerning illegal strikes and lockouts and to
determine whether the parties are bargaining in good faith. In some provinces, they
also have the power to arbitrate first-contract disputes.
Explanation:

37) Why do labour boards generally take a dim view of employers' hiring additional workers 37)
during a union organizing drive?
Answer: Because of the likelihood that such workers are being hired solely or primarily to
vote against unionization, and hence increase the chances that the organizing drive
will fail.
Explanation:

38) Why are decertification provisions a critical aspect of public labour policy? 38)
Answer: Such provisions enhance union democracy by allowing workers to get rid of a union
which has been ineffective, or which has treated them unfairly or in an arbitrary
way.
Explanation:

39) What must a labour board do before it can determine whether a union which has applied 39)
for certification should be certified?
Answer: Determine the appropriate bargaining unit and ascertain the union's level of
support. Normally the bargaining unit is determined first. However, in provinces
with a "quickie" vote, the board will often conduct a vote and then direct that the
ballot box be sealed until after it has decided on the appropriate bargaining unit.
The reason for this is, again, to prevent the possibility of employer manipulation of
the process which might well occur if the vote were not conducted until after the
lengthy process of determining the bargaining unit had been completed.
Explanation:

40) What is the major exception to the general pattern of provincial jurisdiction in LRL? 40)
Answer: Workers in enterprises of a clearly federal or interprovincial nature, such as the
railroads, airlines, chartered banks, or telecommunications companies. These
workers, who together make up about 10% of the country's unionized work force,
fall under the Canada Code rather than one of the provincial labour acts.
Explanation:

10
TRUE/FALSE. Write 'T' if the statement is true and 'F' if the statement is false.

41) Institutionalists are mainly concerned with the economic benefits which collective bargaining 41)
confers on workers.
Answer: True False
Explanation:

42) Although the "duty to accommodate" sounds noble, it really imposes few responsibilities on any of 42)
the parties.
Answer: True False
Explanation:

43) It would probably be fair to say that worker-employer conflict can be made more civilized, but 43)
never eliminated.
Answer: True False
Explanation:

44) In Canada, employer freedom to communicate provisions have been decreasing in importance in 44)
recent years.
Answer: True False
Explanation:

45) Grievance processes in Canadian agreements are purely a voluntary affair. 45)
Answer: True False
Explanation:

46) Managerialists primarily resent the loss of control unions and collective bargaining mean to 46)
employers and managerialists.
Answer: True False
Explanation:

47) Anti-strikebreaker legislation is generally favoured by people on the right. 47)

Answer: True False
Explanation:

48) It would be fair to say that labour boards are generally more accommodative in their approach to 48)
workplace problems than are the courts.
Answer: True False
Explanation:

49) There appears to be no connection between the type of government a province has, or has had, and 49)
the liberal or restrictive character of its labour act.
Answer: True False
Explanation:

50) Within the group of provinces which requires a vote for certification, the certification procedure is 50)
completely uniform.
Answer: True False
Explanation:

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 51) Canadian arbitrators are free to interpret collective agreements however they choose, so long as 51)
they stick to the agreement.
Answer: True False
Explanation:

52) Unfair labour practice provisions apply to unions as well as to employers. 52)
Answer: True False
Explanation:

53) Agreements under Quebec's decree system are virtually identical to agreements negotiated in the 53)
normal way.
Answer: True False
Explanation:

54) There is some interprovincial variation in the type of expedited arbitration provisions in place. 54)
Answer: True False
Explanation:

55) Becoming a labour lawyer or IR specialist in Canada is a quick and easy process. 55)
Answer: True False
Explanation:

ESSAY. Write your answer in the space provided or on a separate sheet of paper.

56) Compare and contrast Canadian and American LRL.

Answer: (suggested):
Probably fairest to suggest that both started off at about the same place but the Canadian legislation has
to a degree evolved in some different directions (in part because of the European influence brought in
through Quebec), although there are still broad areas of similarity. Canadian legislation is more
fragmented (in the U.S., there's just one private sector law). Because of this fact, experimentation with
labour law may have been facilitated here (laboratory of democracy argument which suggests that
decentralized systems can innovate at lower risk). Both countries' laws tend to be relatively voluntarist
and to emphasize processes rather than outcomes, but the U.S. law has remained truer to its voluntarist
heritage, since Canada has compulsory conciliation and grievance arbitration and stronger
anti-strikebreaking laws, as well as other laws like first-contract arbitration which protect workers.
Worker protection is generally greater in Canada; union certification is generally easier here, since many
jurisdictions still rely on the card count rather than the vote, and even those using a vote use a "quickie"
vote to try to minimize the chance of employer interference. Union security is more closely guarded in
Canada, where something like the "Rand Formula" generally applies and where there's no equivalent to
the 1947 Taft-Hartley "right-to-work" provisions. In addition, laws against unfair employer labour
practice are generally more strictly enforced here.

57) Discuss some of the special features of LRL in Quebec.

Answer: (suggested):
Though Quebec is best known in English Canada for its introduction of anti-strikebreaker legislation, the
most distinctive feature of its legislative regime is arguably its decree system, whereby collective
agreements are extended to the non-unionized sectors of an industry with an eye to eliminating
competition over wages and working conditions among firms in the same industry. Most decrees are
found in low-wage industries made up of large numbers of small and medium-sized firms. Under the
decree system, unionized firms normally the biggest in any given industry negotiate an agreement in
the usual way. If they wish to have the agreement extended, the unions and employers in question then
decide on the contents of the agreement that will eventually bind all firms in the industry. These

12
Answer: agreements are narrower in scope than standard agreements since they cannot contain provisions having
to do with the activities of any union, employer, or employers' association. Permissible provisions are
limited to wages, hours of work, working days, vacations, and classification of operations and employers
and employees. Once the parties have decided on their agreement, they send it to the provincial labour
minister for approval. Interested parties have a set time period to file any objections they may have. If
the minister believes that the extended agreement is workable, he or she then extends it to the entire
industry, with or without any modifications deemed appropriate, normally for a period not exceeding 18
months.

Other special features of Quebec LRL include a highly centralized system of regulation in construction
(itself a decree sector). All construction workers must hold a "competency card" from the Quebec
Construction Commission and must belong to one of the five labour organizations legally entitled to
represent the province's construction workers. These organizations bargain with the five sector-based
employers' associations over matters specific to those sectors, though the sector-based associations may,
if they wish, hand over bargaining authority to the general employers' association to which all
construction employers must belong. Issues common to all the sectors are negotiated between the unions
and the general employers' association. However, union certification as such does not exist in the Quebec
construction industry.

Because of the decree system, employers' associations play a much more prominent role in Quebec than
they do in the rest of the country, where they are normally found only in construction. There are about
90 such organizations representing some 25,000 employers; many of them bargain directly with unions.
Quebec also has a confederation of employer associations, known as the Conseil du patronat du Quebec, ´
which does not bargain directly with unions but does allow the Quebec business community to speak
with one voice on matters of concern to business. Its major responsibilities are in the areas of legislative
lobbying, public relations, and research.

In addition, Quebec has differed from other provinces in the way it administers LRL. Since 1969, it has
used a labour court along with a three-tier system of certification agents, labour commissioners, and
general commissioners to deal with certification and unfair labour practice cases. While this mechanism
appears to have proven cumbersome and unwieldy and was to have been replaced by a more
conventional labour board under legislation passed in 1987, the legislation had still not officially been
proclaimed (as of 1998), for reasons that remain unclear.

13
58) Discuss the function and powers of labour boards and the type of approach they generally take in carrying out
those functions.
Answer: (suggested):
The major functions of labour boards are overseeing union certification and decertification and policing
unfair labour practice. However, in recent years their jurisdiction has expanded to include the power to
issue directives concerning illegal strikes and lockouts and to determine whether the parties are
bargaining in good faith. In addition, a number of boards, including Ontario's, can arbitrate
first-contract disputes.

To assist them in carrying out these functions, labour boards have been given a broad range of powers.
In Ontario, these include the power to subpoena witnesses and compel them to give evidence under oath;
to require any party to produce documents; to accept such evidence as it sees fit, whether or not such
evidence would be acceptable in court; to enter workplaces to inspect work processes and question
managers and workers; to conduct representation, strike, and ratification votes; and to require employers
and unions to post board notices. The remedies available to them generally include the power to issue
cease-and-desist orders; to certify a union with less than majority support (except in Ontario) in cases
where an employer's unfair practice has prevented the employees' true wishes from becoming known;
and to order unfairly discharged workers reinstated with or without compensation. Most labour boards
also have the power to levy substantial fines, but few tend to resort to criminal prosecutions. Most
boards believe that such a course of action would only embitter the parties even further without doing
much if any good. Rather than using criminal prosecutions, most boards adopt the non-punitive
"make-whole" approach from civil law. This approach requires the guilty party to right past wrongs and
to restore the victim to the position he or she would have been in had the offense in question not been
committed. For example, if an employer is found guilty of unfairly discharging an employee during a
union organizing drive, the employer won't be fined or jailed but will be required to reinstate the
employee with back pay.

Overall, the approach taken by labour boards is accommodative, in comparison to that taken by courts.
In general, the boards are more concerned with finding practical and workable solutions to workplace
problems than with laying down "final" legal solutions for all time. Generally proceedings before a
board are less formal than those before a court, and there is no requirement that parties to a labour board
proceeding have legal counsel, though many choose to. Often when a labour relations officer is first
assigned to a dispute, he or she will try to bring the parties together to help them solve the problem on
their own. Made up of union and management representatives and (usually) third party neutrals
knowledgeable in IR, and staffed by experts in various areas of the field, labour boards are generally
viewed as more even-handed in their approach to labour issues than the courts, and more likely to result
in relatively quick and expeditious resolutions to problems.

14
59) How has human rights legislation affected the grievance procedure and the interpretation of collective
agreements?
Answer: (suggested):
Arbitrators must now interpret collective agreements in the light of anti-discrimination provisions
contained in human rights legislation. In the first instance, this means that women, minority group
members, and disabled people must be protected from sexual, religious, racial, or other kinds of
harassment.

But the "duty to accommodate" arising out of the 1986 O'Malley v. Simpson-Sears case extends far beyond
the prevention of outright harassment. Now the concept of "constructive" or "systemic" discrimination
applies, under which workplace rules and collective agreement provisions can be found discriminatory,
regardless of their intent, if they have a disproportionate effect on an individual employee. The duty to
accommodate has been construed to extend to the provision of special treatment such as the drawing up
of different work schedules for members of religious groups whose beliefs forbid work on certain days,
or the redesign of jobs to allow disabled workers to perform them more easily. The duty to accommodate
may even extend to rewriting collective agreement provisions or agreeing to waive their application.

60) Discuss the major features of Canadian LRL.

Answer: (suggested):
Extreme legislative fragmentation (one private sector act for each jurisdiction, often several public sector
acts). Only workers in clearly interprovincial industries (railways, etc.) fall under federal jurisdiction.
Emphasis on processes rather than outcomes. Aim of LRL is to promote full, free, and fair bargaining, on
the assumption that if the parties can bargain on more or less of a par, the outcomes will be equitable. In
general, an emphasis on voluntarism (the belief that the parties can resolve disputes on their own
without compulsory intervention), though this is significantly reduced by compulsory conciliation
provisions. No mid-term strikes; the grievance process is the substitute. Work now and grieve later is
the rule. Every agreement must contain a grievance procedure. Reasonably broad worker protection
(anti-strikebreaker provisions, lst contract arbitration provisions, union security provisions, DFR
provisions), esp. in comparison with the U.S.

61) Discuss some of the key provincial variations in LRL.

Answer: (suggested):
Liberal provisions are those which tend to favour workers and unions; restrictive ones are those which
tend to favour employers and managers. Some provisions are difficult to classify using this system, but it
does give a good overall "read" on any given jurisdiction's labour act.

Key variations occur in the following areas:

Exclusions. Liberal provinces exclude only managers and confidential IR personnel; others exclude ag.
workers, domestics, and several different groups of professionals. Can have a significant effect on union
growth since the larger the pool of potential members, the greater the number of members is likely to be.

Certification procedures: Liberal provinces use a card count of signed members; restrictive ones require a
vote. Card count is generally considered more favourable to workers and unions since employers have
the opportunity to intervene when there is a vote.

Duty of fair representation: May increase union membership seemingly paradoxically by giving
potential members a feeling they can do something if their union doesn't treat them fairly. Liberal
jurisdictions have provisions applying to negotiations as well as grievance-handling; moderately liberal
ones have provisions applying only to grievance-handling.

First-contract arbitration: May be of great help to unions since they can deter employers from
"stonewalling" in the hope of preventing the union from achieving a collective agreement. This can be of
15
 Answer: particular benefit to small, weak unions in the private service sector. Liberal provinces have these
provisions in place; restrictive ones do not.

Anti-strikebreaker provisions: The existence of strong anti-strikebreaker provisions shifts the balance of
power toward unions by making it very difficult or impossible for employers to continue to operate
establishments during a strike, hence increasing the cost of the strike to employers. Absence of such
legislation may, in practical terms, undercut the union's legal right to strike; in any case, where the
legislation isn't in effect (as at Giant Gold Mines), strikes can often lead to violence or even deaths.
Provinces with comprehensive anti-strikebreaker provisions are considered liberal; those with partial
protection (i.e., prohibition of professional strikebreakers) are considered moderately liberal; others are
considered restrictive.

Employer freedom to communicate provisions: These may undercut the union's workplace role by
allowing employers to communicate directly with individual workers or small groups of workers,
especially when the communication applies to collective bargaining or matters covered by the collective
agreement. Concerns about such provisions are even stronger in provinces which also use a vote to
certify unions, since they could have the effect of allowing lawyers a back-door say in organizing
campaigns. Provinces which have such provisions in place are considered restrictive; others are
considered liberal.

Other provisions discussed in the book include technological change and expedited arbitration; the
effects of these on union membership rates and the union's ability to operate in the workplace would
appear to be less dramatic than the effects of the provisions mentioned above. If you cover these
provisions in class, you may also wish to consider "reverse onus" provisions in unfair labour practice
cases or "conscientious objector" provisions allowing people with a religious objection to joining a union
to opt out. However, it is not clear how great the effect of these provisions is, or even if it is very
significant at all.

62) Discuss the major stages in the evolution of Canadian LRL.

Answer: (suggested):
During the early to middle years of the 19th century, Canadian jurisdictions almost without exception
passed legislation which treated unions as conspiracies in restraint of trade. This idea ended with the
Trade Union Act of 1872, which declared that the purposes of unions were not to be considered unlawful
simply because they might be in restraint of trade. However, the act provided few positive benefits and
in any case applied only to those unions which registered with the government something that few did,
rendering it all but meaningless in practice. The main benefit that this act conferred on unions was
greater political legitimacy.

An 1877 amendment to the Masters' and Servants' Act meant that employees could no longer be jailed for
striking or leaving their employers' service. More significant was the introduction of conciliation
legislation around the turn of the century. In 1900, the government established a Department of Labour
with a conciliation service. At the same time, it introduced voluntary conciliation, which could be
initiated either by one of the parties or by the labour minister. The idea behind conciliation was that once
the public became aware of the issues of labour disputes from reading the published conciliation reports,
public pressure would push the two sides into settling their disputes. Similar principles were written
into the Railway Labour Disputes Act of 1903. In 1907, the government went a step farther and made
conciliation compulsory through the Industrial Disputes Investigation, or IDI Act. The act stipulated that
no union in a transportation, resource, or utilities industry could strike nor could an employer in any of
these industries lock workers out until the conciliation board's report had been published and a further
"cooling-off" period had elapsed.

Initially, the labour movement cautiously supported IDI, which may indeed have given weak unions
greater legitimacy. But it quickly withdrew its support once it realized that, far from providing unions

16
Answer: with any basic rights such as the right to organize or call a strike, the act simply gave employers more
time to stockpile, hire strikebreakers, or harass and intimidate union activists in advance of a strike. The
act did little to promote union growth. Pressure for comprehensive Canadian bargaining legislation
mounted and grew steadily through the 1920s and 1930s, particularly after such legislation (the "Wagner
Act") was passed in the U.S. in 1935. But not until 1944, faced with a National War Labour Board report
which called for the granting of basic bargaining rights to Canadian workers and a warning that he could
lose the next election to the CCF if he didn't move his government leftward, did Prime Minister
Mackenzie King grant those rights. The bill which did so is known as PC 1003. In addition to providing
workers with the right to join and organize unions and to strike, PC 1003 established the Canada Labour
Relations Board to enforce the legislation. Unlike the Wagner Act, it contained a compulsory conciliation
provision¹an incorporation apparently made at King's insistence. As a result of PC 1003 and the greater
union security provided by the "Rand Formula," developed in 1945, the Canadian labour movement
grew rapidly, particularly in heavy industries such as steel, autos, rubber, and meatpacking. But public
sector workers continued to be excluded from unionization rights, except in Saskatchewan; this exclusion
and the fact that very few private service sector workers formed unions meant that to all intents and
purposes the Canadian labour movement remained a male movement.

In 1967, following years of campaigning by its employees, the federal government finally granted them
the right to bargain collectively through the Public Service Staff Relations Act. This act contained a
then-unique dispute resolution procedure, choice of procedures, under which the union could choose
between binding arbitration and the traditional conciliation/strike route at the start of negotiations, but
would then have to stick with its initial choice through that complete round of bargaining. The PSSRA
set in motion a huge wave of public sector unionization. First provincial government employees received
bargaining rights; then other public sector workers, such as teachers and nurses, did. By the late 1970s,
the vast majority of public sector workers in Canada belonged to unions. There has been no major
change to Canadian LRL since the passage of the PSSRA.

17
Answer Key
Testname: C7

1) A
2) E
3) D
4) A
5) D
6) C
7) A
8) A
9) E
10) D
11) C
12) D
13) D
14) A
15) A
16) D
17) B
18) A
19) C
20) C
21) E
22) D
23) B
24) B
25) B
26) Several Canadian jurisdictions still use a count of signed members rather than a vote, as is the case in the U.S. It is
generally acknowledged that when certification is through a vote, employers can have a hand in the process and may
well result in the failure of the certification drive. Even those Canadian jurisdictions which use votes normally use
"quickie" votes which must normally be conducted within five to ten days of the certification application and hence
allow less chance for employer manipulation of the process than the lengthy campaigns characteristic of the American
system.
27) The major reasons for this slow evolution were the country's relatively late industrialization, its severely fragmented
labour movement, the tendency of Canadian unionists to join American rather than Canadian unions in the nineteenth
and early twentieth centuries, and determined employer and government opposition.
28) Many provinces have centralized collective bargaining in construction in the interest of maintaining peace in the
industry. But Quebec has carried things a step further, by requiring all construction workers to hold a Quebec
Construction Commission card and to belong to one of five labour associations legally entitled to represent
construction workers in the province. These five unions bargain sector-specific issues with five sector-based
employers' associations, and more general issues with a general construction employers' association to which all
construction employers must belong. Union certification as such does not exist in Quebec's construction industry.
29) Until the Dunmore case in 2001, which struck down Ontario's agricultural exclusion on Charter grounds, none
whatever. In fact, exclusion laws changed far more in the 20 years before the Charter took effect than they have in the
15 years since it took effect. It will be interesting to see whether the Dunmore case will prompt successful challenges of
other exclusions, such as those of professionals and domestics.
30) 1) Exclusion provisions, because they determine the size of the "eligible" worker pool from which potential union
members may be drawn. 2) Certification procedures, because they may significantly influence the likelihood that a
union will be certified. 3) First-contract arbitration provisions, because they may increase the likelihood that a new
union will actually attain a collective agreement, which in turn increases the probability that the organization in
question will continue to be unionized.

18
Answer Key
Testname: C7

31) No. Every jurisdiction imposes a "peace obligation" on both unions and employers during the life of the agreement.
This means that while the agreement is in force, unions cannot strike nor employers lock out. Disputes over the
interpretation of the collective agreement must be submitted to a grievance procedure culminating, if necessary, in
binding arbitration. (Note: Refusal to work in unsafe conditions, provided for under the health and safety legislation
discussed in Ch. 7, does not constitute a strike).
32) Beatty's concern is that LRL and collective bargaining tend to lead to a "tyranny of the majority," while taking little
account of the needs of the least fortunate members of society, such as domestics and farmworkers, who are often
excluded from unionization rights under LRL.
33) Critics like John Godard fear that, in their quest to be accommodating, labour boards haven't gone far enough in
preventing employers from committing unfair labour practices. They also believe that existing penalties don't serve as
much of a deterrent against such practices.
34) To prevent the suffering, chaos, injustice, and violence that would almost certainly occur if it did not exist. In
particular, LRL's regulation of strikes makes them far less violent and less likely to result in loss of life or bloodshed
than they would otherwise be and were before LRL existed.
35) Both provisions allowing for the imposition of a first collective agreement in cases where the labour board believes an
employer has not bargained in good faith with an eye to concluding an agreement, and provisions allowing a labour
board to certify a union with less than majority support in cases where an employer's unfair labour practices have
prevented the employees' true wishes from becoming known.
36) Their major functions are overseeing union certification and decertification and policing unfair labour practice. In
recent years, their jurisdiction has expanded to include the power to issue directives concerning illegal strikes and
lockouts and to determine whether the parties are bargaining in good faith. In some provinces, they also have the
power to arbitrate first-contract disputes.
37) Because of the likelihood that such workers are being hired solely or primarily to vote against unionization, and hence
increase the chances that the organizing drive will fail.
38) Such provisions enhance union democracy by allowing workers to get rid of a union which has been ineffective, or
which has treated them unfairly or in an arbitrary way.
39) Determine the appropriate bargaining unit and ascertain the union's level of support. Normally the bargaining unit is
determined first. However, in provinces with a "quickie" vote, the board will often conduct a vote and then direct that
the ballot box be sealed until after it has decided on the appropriate bargaining unit. The reason for this is, again, to
prevent the possibility of employer manipulation of the process which might well occur if the vote were not conducted
until after the lengthy process of determining the bargaining unit had been completed.
40) Workers in enterprises of a clearly federal or interprovincial nature, such as the railroads, airlines, chartered banks, or
telecommunications companies. These workers, who together make up about 10% of the country's unionized work
force, fall under the Canada Code rather than one of the provincial labour acts.
41) FALSE
42) FALSE
43) TRUE
44) FALSE
45) FALSE
46) TRUE
47) FALSE
48) TRUE
49) FALSE
50) FALSE
51) FALSE
52) TRUE
53) FALSE
54) TRUE
55) FALSE

19
Answer Key
Testname: C7

56) (suggested):
Probably fairest to suggest that both started off at about the same place but the Canadian legislation has to a degree
evolved in some different directions (in part because of the European influence brought in through Quebec), although
there are still broad areas of similarity. Canadian legislation is more fragmented (in the U.S., there's just one private
sector law). Because of this fact, experimentation with labour law may have been facilitated here (laboratory of
democracy argument which suggests that decentralized systems can innovate at lower risk). Both countries' laws tend
to be relatively voluntarist and to emphasize processes rather than outcomes, but the U.S. law has remained truer to its
voluntarist heritage, since Canada has compulsory conciliation and grievance arbitration and stronger
anti-strikebreaking laws, as well as other laws like first-contract arbitration which protect workers. Worker protection
is generally greater in Canada; union certification is generally easier here, since many jurisdictions still rely on the card
count rather than the vote, and even those using a vote use a "quickie" vote to try to minimize the chance of employer
interference. Union security is more closely guarded in Canada, where something like the "Rand Formula" generally
applies and where there's no equivalent to the 1947 Taft-Hartley "right-to-work" provisions. In addition, laws against
unfair employer labour practice are generally more strictly enforced here.

20
Answer Key
Testname: C7

57) (suggested):
Though Quebec is best known in English Canada for its introduction of anti-strikebreaker legislation, the most
distinctive feature of its legislative regime is arguably its decree system, whereby collective agreements are extended to
the non-unionized sectors of an industry with an eye to eliminating competition over wages and working conditions
among firms in the same industry. Most decrees are found in low-wage industries made up of large numbers of small
and medium-sized firms. Under the decree system, unionized firms normally the biggest in any given industry
negotiate an agreement in the usual way. If they wish to have the agreement extended, the unions and employers in
question then decide on the contents of the agreement that will eventually bind all firms in the industry. These
agreements are narrower in scope than standard agreements since they cannot contain provisions having to do with
the activities of any union, employer, or employers' association. Permissible provisions are limited to wages, hours of
work, working days, vacations, and classification of operations and employers and employees. Once the parties have
decided on their agreement, they send it to the provincial labour minister for approval. Interested parties have a set
time period to file any objections they may have. If the minister believes that the extended agreement is workable, he
or she then extends it to the entire industry, with or without any modifications deemed appropriate, normally for a
period not exceeding 18 months.

Other special features of Quebec LRL include a highly centralized system of regulation in construction (itself a decree
sector). All construction workers must hold a "competency card" from the Quebec Construction Commission and must
belong to one of the five labour organizations legally entitled to represent the province's construction workers. These
organizations bargain with the five sector-based employers' associations over matters specific to those sectors, though
the sector-based associations may, if they wish, hand over bargaining authority to the general employers' association
to which all construction employers must belong. Issues common to all the sectors are negotiated between the unions
and the general employers' association. However, union certification as such does not exist in the Quebec construction
industry.

Because of the decree system, employers' associations play a much more prominent role in Quebec than they do in the
rest of the country, where they are normally found only in construction. There are about 90 such organizations
representing some 25,000 employers; many of them bargain directly with unions. Quebec also has a confederation of
employer associations, known as the Conseil du patronat du Quebec, ´ which does not bargain directly with unions but
does allow the Quebec business community to speak with one voice on matters of concern to business. Its major
responsibilities are in the areas of legislative lobbying, public relations, and research.

In addition, Quebec has differed from other provinces in the way it administers LRL. Since 1969, it has used a labour
court along with a three-tier system of certification agents, labour commissioners, and general commissioners to deal
with certification and unfair labour practice cases. While this mechanism appears to have proven cumbersome and
unwieldy and was to have been replaced by a more conventional labour board under legislation passed in 1987, the
legislation had still not officially been proclaimed (as of 1998), for reasons that remain unclear.

21
Answer Key
Testname: C7

58) (suggested):
The major functions of labour boards are overseeing union certification and decertification and policing unfair labour
practice. However, in recent years their jurisdiction has expanded to include the power to issue directives concerning
illegal strikes and lockouts and to determine whether the parties are bargaining in good faith. In addition, a number of
boards, including Ontario's, can arbitrate first-contract disputes.

To assist them in carrying out these functions, labour boards have been given a broad range of powers. In Ontario,
these include the power to subpoena witnesses and compel them to give evidence under oath; to require any party to
produce documents; to accept such evidence as it sees fit, whether or not such evidence would be acceptable in court;
to enter workplaces to inspect work processes and question managers and workers; to conduct representation, strike,
and ratification votes; and to require employers and unions to post board notices. The remedies available to them
generally include the power to issue cease-and-desist orders; to certify a union with less than majority support (except
in Ontario) in cases where an employer's unfair practice has prevented the employees' true wishes from becoming
known; and to order unfairly discharged workers reinstated with or without compensation. Most labour boards also
have the power to levy substantial fines, but few tend to resort to criminal prosecutions. Most boards believe that such
a course of action would only embitter the parties even further without doing much if any good. Rather than using
criminal prosecutions, most boards adopt the non-punitive "make-whole" approach from civil law. This approach
requires the guilty party to right past wrongs and to restore the victim to the position he or she would have been in
had the offense in question not been committed. For example, if an employer is found guilty of unfairly discharging an
employee during a union organizing drive, the employer won't be fined or jailed but will be required to reinstate the
employee with back pay.

Overall, the approach taken by labour boards is accommodative, in comparison to that taken by courts. In general, the
boards are more concerned with finding practical and workable solutions to workplace problems than with laying
down "final" legal solutions for all time. Generally proceedings before a board are less formal than those before a
court, and there is no requirement that parties to a labour board proceeding have legal counsel, though many choose
to. Often when a labour relations officer is first assigned to a dispute, he or she will try to bring the parties together to
help them solve the problem on their own. Made up of union and management representatives and (usually) third
party neutrals knowledgeable in IR, and staffed by experts in various areas of the field, labour boards are generally
viewed as more even-handed in their approach to labour issues than the courts, and more likely to result in relatively
quick and expeditious resolutions to problems.
59) (suggested):
Arbitrators must now interpret collective agreements in the light of anti-discrimination provisions contained in human
rights legislation. In the first instance, this means that women, minority group members, and disabled people must be
protected from sexual, religious, racial, or other kinds of harassment.

But the "duty to accommodate" arising out of the 1986 O'Malley v. Simpson-Sears case extends far beyond the
prevention of outright harassment. Now the concept of "constructive" or "systemic" discrimination applies, under
which workplace rules and collective agreement provisions can be found discriminatory, regardless of their intent, if
they have a disproportionate effect on an individual employee. The duty to accommodate has been construed to
extend to the provision of special treatment such as the drawing up of different work schedules for members of
religious groups whose beliefs forbid work on certain days, or the redesign of jobs to allow disabled workers to
perform them more easily. The duty to accommodate may even extend to rewriting collective agreement provisions or
agreeing to waive their application.

22
Answer Key
Testname: C7

60) (suggested):
Extreme legislative fragmentation (one private sector act for each jurisdiction, often several public sector acts). Only
workers in clearly interprovincial industries (railways, etc.) fall under federal jurisdiction. Emphasis on processes
rather than outcomes. Aim of LRL is to promote full, free, and fair bargaining, on the assumption that if the parties can
bargain on more or less of a par, the outcomes will be equitable. In general, an emphasis on voluntarism (the belief
that the parties can resolve disputes on their own without compulsory intervention), though this is significantly
reduced by compulsory conciliation provisions. No mid-term strikes; the grievance process is the substitute. Work
now and grieve later is the rule. Every agreement must contain a grievance procedure. Reasonably broad worker
protection (anti-strikebreaker provisions, lst contract arbitration provisions, union security provisions, DFR
provisions), esp. in comparison with the U.S.
61) (suggested):
Liberal provisions are those which tend to favour workers and unions; restrictive ones are those which tend to favour
employers and managers. Some provisions are difficult to classify using this system, but it does give a good overall
"read" on any given jurisdiction's labour act.

Key variations occur in the following areas:

Exclusions. Liberal provinces exclude only managers and confidential IR personnel; others exclude ag. workers,
domestics, and several different groups of professionals. Can have a significant effect on union growth since the larger
the pool of potential members, the greater the number of members is likely to be.

Certification procedures: Liberal provinces use a card count of signed members; restrictive ones require a vote. Card
count is generally considered more favourable to workers and unions since employers have the opportunity to
intervene when there is a vote.

Duty of fair representation: May increase union membership seemingly paradoxically by giving potential members
a feeling they can do something if their union doesn't treat them fairly. Liberal jurisdictions have provisions applying
to negotiations as well as grievance-handling; moderately liberal ones have provisions applying only to
grievance-handling.

First-contract arbitration: May be of great help to unions since they can deter employers from "stonewalling" in the
hope of preventing the union from achieving a collective agreement. This can be of particular benefit to small, weak
unions in the private service sector. Liberal provinces have these provisions in place; restrictive ones do not.

Anti-strikebreaker provisions: The existence of strong anti-strikebreaker provisions shifts the balance of power
toward unions by making it very difficult or impossible for employers to continue to operate establishments during a
strike, hence increasing the cost of the strike to employers. Absence of such legislation may, in practical terms,
undercut the union's legal right to strike; in any case, where the legislation isn't in effect (as at Giant Gold Mines),
strikes can often lead to violence or even deaths. Provinces with comprehensive anti-strikebreaker provisions are
considered liberal; those with partial protection (i.e., prohibition of professional strikebreakers) are considered
moderately liberal; others are considered restrictive.

Employer freedom to communicate provisions: These may undercut the union's workplace role by allowing
employers to communicate directly with individual workers or small groups of workers, especially when the
communication applies to collective bargaining or matters covered by the collective agreement. Concerns about such
provisions are even stronger in provinces which also use a vote to certify unions, since they could have the effect of
allowing lawyers a back-door say in organizing campaigns. Provinces which have such provisions in place are
considered restrictive; others are considered liberal.

Other provisions discussed in the book include technological change and expedited arbitration; the effects of these on
23
Answer Key
Testname: C7

union membership rates and the union's ability to operate in the workplace would appear to be less dramatic than the
effects of the provisions mentioned above. If you cover these provisions in class, you may also wish to consider
"reverse onus" provisions in unfair labour practice cases or "conscientious objector" provisions allowing people with a
religious objection to joining a union to opt out. However, it is not clear how great the effect of these provisions is, or
even if it is very significant at all.
62) (suggested):
During the early to middle years of the 19th century, Canadian jurisdictions almost without exception passed
legislation which treated unions as conspiracies in restraint of trade. This idea ended with the Trade Union Act of 1872,
which declared that the purposes of unions were not to be considered unlawful simply because they might be in
restraint of trade. However, the act provided few positive benefits and in any case applied only to those unions which
registered with the government something that few did, rendering it all but meaningless in practice. The main
benefit that this act conferred on unions was greater political legitimacy.

An 1877 amendment to the Masters' and Servants' Act meant that employees could no longer be jailed for striking or
leaving their employers' service. More significant was the introduction of conciliation legislation around the turn of
the century. In 1900, the government established a Department of Labour with a conciliation service. At the same
time, it introduced voluntary conciliation, which could be initiated either by one of the parties or by the labour
minister. The idea behind conciliation was that once the public became aware of the issues of labour disputes from
reading the published conciliation reports, public pressure would push the two sides into settling their disputes.
Similar principles were written into the Railway Labour Disputes Act of 1903. In 1907, the government went a step
farther and made conciliation compulsory through the Industrial Disputes Investigation, or IDI Act. The act stipulated
that no union in a transportation, resource, or utilities industry could strike nor could an employer in any of these
industries lock workers out until the conciliation board's report had been published and a further "cooling-off" period
had elapsed.

Initially, the labour movement cautiously supported IDI, which may indeed have given weak unions greater
legitimacy. But it quickly withdrew its support once it realized that, far from providing unions with any basic rights
such as the right to organize or call a strike, the act simply gave employers more time to stockpile, hire strikebreakers,
or harass and intimidate union activists in advance of a strike. The act did little to promote union growth. Pressure for
comprehensive Canadian bargaining legislation mounted and grew steadily through the 1920s and 1930s, particularly
after such legislation (the "Wagner Act") was passed in the U.S. in 1935. But not until 1944, faced with a National War
Labour Board report which called for the granting of basic bargaining rights to Canadian workers and a warning that
he could lose the next election to the CCF if he didn't move his government leftward, did Prime Minister Mackenzie
King grant those rights. The bill which did so is known as PC 1003. In addition to providing workers with the right to
join and organize unions and to strike, PC 1003 established the Canada Labour Relations Board to enforce the
legislation. Unlike the Wagner Act, it contained a compulsory conciliation provision¹an incorporation apparently
made at King's insistence. As a result of PC 1003 and the greater union security provided by the "Rand Formula,"
developed in 1945, the Canadian labour movement grew rapidly, particularly in heavy industries such as steel, autos,
rubber, and meatpacking. But public sector workers continued to be excluded from unionization rights, except in
Saskatchewan; this exclusion and the fact that very few private service sector workers formed unions meant that to all
intents and purposes the Canadian labour movement remained a male movement.

In 1967, following years of campaigning by its employees, the federal government finally granted them the right to
bargain collectively through the Public Service Staff Relations Act. This act contained a then-unique dispute resolution
procedure, choice of procedures, under which the union could choose between binding arbitration and the traditional
conciliation/strike route at the start of negotiations, but would then have to stick with its initial choice through that
complete round of bargaining. The PSSRA set in motion a huge wave of public sector unionization. First provincial
government employees received bargaining rights; then other public sector workers, such as teachers and nurses, did.
By the late 1970s, the vast majority of public sector workers in Canada belonged to unions. There has been no major
change to Canadian LRL since the passage of the PSSRA.
24