1. First Collective Agreements
The BC Labour Relations Board

2. Overview of Section 55 in BC
Leading Decision – Yarrow Lodge
LRB Process
Best Practices
First Agreement Areas of Discussion
Differences between BC and AB
Experience in BC

3. Leading Decision on the Section 55 Process
Yarrow Lodge
Link available at:
Click on Decisions > Leading LRB Decisions
- under ‘First Collective Agreement (Section 55)
Yarrow Lodge Ltd., BCLRB No. B444/93, 21 CLRBR (2d) 1 (general application of Section 55)

4. Conditions for Appointment of Mediator under Section 55
Parties must have bargained in good faith and unable to reach agreement
Union must have positive strike vote

5. Strike or Lockout
The Section 55 application prohibits either party from strike or lockout action during the period while under Section 55
If a dispute has commenced, that activity must cease during the Section 55 process
3 month strike mandate is frozen

6. Matters in Dispute Must be Specified
Applicant must provide a full listing of all matters in dispute and it’s position on each of those matters. A copy must be provided to the other party.
Within 5 calender days, the other party responds with their list of disputed issues and it’s position on those issues

7. Board Procedure – Time Frame
Within 5 calender days of an application, the Associate Chair will appoint a mediator
Mediation begins
Within 20 days – if First Collective Agreement is not concluded, the mediator shall submit a report to the Associate Chair

8. Mediator Recommendations on Settlement
The mediator’s report may include recommended terms and conditions for a first collective agreement (reasonably likely to be accepted) and/or recommend a process as outlined below.
The implicit threat that the Mediator may direct the matter to interest arbitration is an incentive to parties to accept Mediators’ recommendations.
If the recommendations are rejected by either or both of the parties, the Associate Chair will direct one of the following:
Mediation/arbitration
Arbitration, or
Strike or lockout

9. Limited Issue Arbitration
Is the failure to settle due to an ability to pay argument, and if so, is the Employer willing to provide necessary financial information to support that argument?
Where such an argument can be substantiated and the Employer is willing to disclose information then in this situation a Mediator may find that it would be appropriate to direct the outstanding issues to limited issue arbitration

10. Binding Mediation/Arbitration or Arbitration
Where the recommendations of the mediator are accepted by only one party
Mediator believes that the conduct of one or both parties warrants a binding mechanism
Considerations
Bad faith or surface bargaining
Refusal of the employer to recognize the Union
Adoption of an uncompromising bargaining position without reasonable justification
Failure to make reasonable or expeditious efforts to conclude a collective agreement or
Unrealistic demands or expectations arising from either the intentional conduct of a party or from inexperience
Bitter and protracted dispute where it is unlikely the parties will be able to reach a settlement themselves

11. Strike or Lockout Option
In the absence of improper conduct by one of the parties and where the dispute is simply based on “hard bargaining,” the mediator will generally recommend that the parties be allowed to exercise their rights to strike or lockout in support of their bargaining positions

12. Direction from Associate Chair
Following mediator’s recommendations, and failing agreement between the parties, the Associate Chair will request submissions from the parties as to what mechanism for resolution should be directed under Sec 55
Where the decision is to direct interest arbitration, the general policy of the Board is to refer the adjudication to an outside arbitrator

13. Terms of an Arbitrated First Agreement
Factors to consider:
Attempt to replicate the Collective Agreement which the parties would have achieved on their own
Fair and reasonable
Should not contain innovative or breakthrough clauses,
Objective criteria – similar employees doing similar work
Financial state of the employer
Internal equity and consistency among employees
Economic and market conditions

14. Sec 55 Files Jan Oct 2017

15. Best Practices
The Board has held that significant weight should be given to the recommendations in the mediator’s report under Section 55
Such recommendations will be given deference by the arbitrator except where they are inconsistent with the Code, where there is a clear error of fact or new circumstances arise
Appeals from the decision of the Associate Chair will be very limited

16. Section 55 - Process

17. First Agreement Areas of Discussion
11 – Requirement to Bargain in Good Faith
45- Notice to Bargain and 4 month “freeze”
47 – Collective Bargaining
55 – First Collective Agreement
60/61 – Pre Strike/Lockout Vote and Notice
62 – Continuation of Benefits
68 – Replacement Workers
72 – Essential Services
74 – Mediation
78 – Last Offer Vote

18. After Finalizing a Collective Agreement
53 – Joint Consultation
54 – Adjustment Plan
86 – Appointment of an Arbitrator
87 – Settlement Officer
104 – Expedited Arbitration
105 – Consensual Mediation - Arbitration

19. Difference btw BC and AB
British Columbia
Alberta
Access to First Agreement Provisions
Strike Vote
Bargained collectively in good faith
Strike or lockout notice served OR
Bargained collectively for at least 90 days
Strike or Lockout
Must not strike or lockout
Board may terminate strike or lockout
Time
frame
20 days – if CA not concluded, mediator shall submit a report to the Associate Chair
No strict timelines
Options that differ
Board may direct mediation/arbitration
Board may direct further bargaining
Length of contract
2 years from date of decision
18 mths no earlier than date of notice to bargain
Freeze period
4 months after the board certifies the trade union as bargaining agent for the unit, or a CA is executed
If 120-day period (after notice to bargain) has not expired, the Board shall direct that the period be extended

20. Experience in BC Major policy decision early after new law
Consider role of mediator recommendations
Consider use of ‘limited issue’ mediation/arbitration
Parties setting out last positions in detail
Minimum 2 year contract
Role of Industry Standard