Employer's Duty to Bargain: Business Closure & Termination, Slides of Labour Law

The legal issue of whether an employer, in its duty to bargain in good faith regarding wages, hours, and other terms and conditions of employment, must negotiate with the certified representative of its employees over its decision to close a part of its business and terminate their employment. The document also explores the types of management decisions and the principles guiding bargaining over economic partial shutdowns.

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2012/2013

Uploaded on 01/26/2013

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First National Maintenance:
What is the Issue?
Must an employer, under
its duty to bargain in good
faith “with respect to
wages, hours, and other
terms and conditions of
employment,” …
negotiate with the certified
representative of its
employees over its
decision to close a part of
its business?
. . . whether First National
Maintenance
Corporation's decision to
terminate its Greenpark . .
. operation and to
discharge the workers
employed in that operation
was a decision with
respect to "terms and
conditions of
employment" within the
meaning of the Act, thus
rendering its failure to
negotiate with the union
unlawful.
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First National Maintenance:

What is the Issue?

  • Must an employer, under

its duty to bargain in good faith “with respect to wages, hours, and other terms and conditions of employment,” … negotiate with the certified representative of its employees over its decision to close a part of its business?

-... whether First National Maintenance Corporation's decision to terminate its Greenpark.. . operation and to discharge the workers employed in that operation was a decision with respect to "terms and conditions of employment" within the meaning of the Act, thus rendering its failure to negotiate with the union unlawful.

First National Maintenance

  • Decision to terminate Greenpark contract not a

TCE

  • based on matters unrelated to labor cost
  • Three types of Mgmt Decisions
  • Indirect/Minimal effect on employment, substantial effect on er (Type I)
  • Effect solely on employment (Type II)
  • Substantial effect on employment and er (Type III)
  • Matter affecting employment must be amenable to

resolution through CB

General Principles

  • Harm to er from negotiating over an economic

partial shutdown outweighs potential benefit to

labor relations and CB.

  • Possible need for secrecy to pursue business opportunities
  • Concern about actions of employees
  • Few CBA provisions limiting right to shut down
  • Importance of labor costs varies
  • Application to First National Maintenance
  • Termination of contract with Greenpark due solely to differences in fee, not to matters related to TCE
  • Contrasts with Fibreboard, where decision based solely on labor costs/TCE

Two Kinds of Bargaining

  • Decision Bargaining
    • Bargaining over the decision itself
    • Obligation to bargain is per First National Maintenance
  • Effects Bargaining
    • Bargaining about the effects of a decision already made
      • Severance pay, transfer rights
    • Always mandatory, regardless of whether bargaining requited over the decision