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Understanding Borg-Warner Issues: TCE, Bargaining Categories, and Legal Implications

This overview focuses on the Borg-Warner case, categorizing issues into three types: Mandatory (TCE), Permissive (non-TCE), and Unlawful. It explores the necessity for parties to negotiate over TCE matters, alongside the role of the Board in determining impasses. The content also discusses the absence of M-P distinction in Canada, Section 8(d) statutory interpretation, and the friction between majority and dissenting opinions regarding bargaining practices. Understanding these concepts is crucial for legal professionals and labor negotiators.

justine-gilmore
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Understanding Borg-Warner Issues: TCE, Bargaining Categories, and Legal Implications

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Presentation Transcript

  1. Borg-Warner • Three Categories of Issues • Mandatory: TCE, matters about which parties must bargain • Permissive: Non-TCE, matters about which parties may bargain, but may not insist • Unlawful: Matters about which the parties may not bargain • recognition clause? • Rationale • Wording of Act, parties only required to negotiate over TCE

  2. Borg-Warner (cont.) • Role of Board is to determine if impasse involves TCE • if so, may not get involved. • If not, may get involved as matter involves a potential 8(a)(5) violation • No M-P Distinction in Canada

  3. Statutory Interpretation, Section 8(d) • Majority • Statute requires bargaining only over TCE • May not insist on matters over which the other party is not required to bargain • Dissent • Statute requires bargaining over TCE but does not prohibit bargaining over legal non-TCE

  4. Does it make sense to say, as does the majority, that one party may propose a provision but not “insist” on it (HNB, pp. 637-38)? Does it make sense to say, as does the dissent, that one party may “insist” on a provision about which the other party is not legally required to bargain (OHN, pp. 630-40)? Majority vs. Dissent

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