1. 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. 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. 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. 4 Majority vs. Dissent 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)?