Labour Relations, 6th edition Published by Larry Suffield Solution Manual

IN NSTRU UCTO OR’S MAN NUAL L

Labour L r Relaations Sixth h Editioon

Larry y Suffielld Lamb bton Collegge

Gary L. Gann non Universsity of Toroonto

Carol An nn Samh haber Algon nquin Colleege

Instructor’s Manual for Suffield, Gannon, and Samhaber Labour Relations Sixth Edition TABLE OF CONTENTS

Chapter 1:

Union Objectives, Processes, and Structure

1

Chapter 2:

Labour Relations in Canada

15

Chapter 3:

The External Environment

41

Chapter 4:

Organizational Strategy

62

Chapter 5:

Governments and Labour Relations Boards

81

Chapter 6:

Union Organizing, Drive and Certification

90

Chapter 7:

The Collective Agreement

122

Chapter 8:

Negotiation of the Collective Agreement

152

Chapter 9:

Strikes, Lockouts, and Contract Dispute Resolution

182

Chapter 10:

Administration of the Collective Agreement

202

Chapter 11:

Public-Sector Labour Relations

240

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Instructor’s Manual for Labour Relations, Sixth Edition

Chapter 1 Unions Objectives, Processes, and Structure

CHAPTER 1 UNIONS: OBJECTIVES, PROCESSES, AND STRUCTURE Preface In this chapter students will begin their exploration of unions in Canada. In particular, students will examine union objectives, processes and structure. Union membership and union operations will also be discussed in relation to how unions function. Unions are key across a prominent business partner in the labour relations system.

Learning Objectives 1.1 1.2 1.3 1.4 1.5

Outline the strategic goals of unions.

Describe union membership.

Explain the types of unions.

Outline the objectives and processes of unions.

Appreciate the various union structures and functions.

Outline/Table of Contents

I. II. III. IV. V. VI. VII. VIII.

Union Objectives Union Objectives and Processes Union Structure and Functions Review Questions Discussion Questions Web Research Activities Vignette Case Incident Lecture Outline/Syllabus

I.

Union Objectives

Unionization is based on the principle that employees may have little or no individual power when dealing with their employer, but as a group they can realize their collective power and improve their terms and conditions of employment. Therefore, a union or trade union is an organization, external to and also within a work setting, that has the primary objective of improving the employee compensation and working conditions it represents. These organizations have four main objectives.

Union is an organization, external to and also within a work setting, that has the primary objective of improving the employee compensation and working conditions it represents.

Union density is the percentage of non-agricultural workers who are union members. It indicates the percentage of potential union members who have actually joined a union. Union density is .

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not the same as the percentage of employees covered by a collective agreement. There are situations where more employees are covered by a collective agreement and do not become union members. Although in some situations employees are required to become union members, this is not always the case. This compares to union coverage which is the percentage of employees covered by a collective agreement, including those who do not become union members.

In most Canadian jurisdictions, the law allows for union dues to be deducted from the pay of all bargaining unit employees at the request of the union. Compulsory union membership may al-so be a stated requirement in a collective agreement. The more favourable union security provisions in Canada may assist unions by providing a secure financial base for their operations and by eliminating the contentious issue of the deduction of dues from the negotiation of first collective agreements. Labour relations legislation is also quickly and strictly enforced in Canada. In Canada, legislation grants bargaining rights to public-sector employees, and a union’s right to strike during collective bargaining.

Union Members Employment Status, Full- vs. Part-Time The organization of part-time employees continues to be a challenge for unions. Many such employers are employed in the private-service sector, where unions have had difficulty organizing in the past. Part-time employees may not be engaged with the same employer for long periods of time, which also can challenge union organizers. Further, the use of part-time employees has been a source of conflict between unions and employers. Unions have sought to establish or continue contract provisions that restrict the use of non-union part-time employees. One example of a long struggle by a union to certify parttime employees was OPSEU’s successful campaign to represent 20,000 teaching staff at Ontario community colleges.

Increase in Female Membership From 2015 to 2022, the union coverage for Canadian male employees rose slightly from 2,282 to 2,327. While female employees over the same period rose from 2,407.5 to 2,687.4.

One reason for the decline in the unionization rate for young men was the employment shift from industries and occupations with high unionization rates, such as construction and manufacturing, to industries and occupations with lower rates, such as retail trade and professional services.

However, employment shifts were not the sole reason for changes in the unionization rate.

Union members may have higher levels of education than is commonly perceived. In particular, 31 percent of union members have a post-secondary certificate or diploma, while 30 percent have a university degree.

Historically, a distinction has been drawn between craft unions and industrial unions. Craft unions may be traced back to the guild system of the Middle Ages, where skilled craftsmen provided goods and services needed in their community. Blacksmiths, glaziers, carpenters, among many skilled artisans, also trained apprentices to succeed them, set prices for their work and provided financial support to their peers in times of injury or illness. A craft union limits its .

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membership to a particular trade or occupation such as electricians or airline pilots. The Brick and Allied Craft Union of Canada is an example. Such unions have also been referred to as horizontal unions because they organize employees across different firms. An industrial union, on the other hand, organizes different types of employees in an organization, including skilled and unskilled workers. Unifor is an example of an industrial union.

The distinction between craft and industrial unions is not as important as it was in the late 19th and early 20th centuries. Then, it was one of the factors sharply dividing the labour movement.

Craft unions, the first to develop in North America, did not support the development of industrial unions.

In the past, there has also been a distinction between public-sector and private-sector unions.

This distinction is breaking down as public-sector unions are now organizing employees in the private sector and vice versa. The Canadian Union of Public Employees (CUPE) has organized employees in the airline industry; Unifor has organized employees in the federal public service; and the United Steelworkers Union (USW) has organized taxi drivers and grocery store employees. In short, the name of a union no longer indicates the type of employees represented. It is possible that several unions could organize workers in the same industry. For example, Unifor, CUPE and other unions have organized casino employees.

II.

Union Objectives and Processes

Improving Terms and Conditions of Work Unions seek to improve wages, benefits, and other terms of work for the employees they represent. Although this is largely an economic role, this objective also includes non-economic issues such as health and safety, work hours and job security. Some of the improvements in working terms that unions are able to achieve will be adopted in the non-union sector. Although organizing employees, contract negotiations, strikes and walkouts and grievance and arbitration processes are the most familiar union methods used to improve terms or conditions of work.

Unions also participate with employers in joint labour–management committees focused on workplace issues such as health and safety or layoff redeployment that will benefit employees.

Unions may engage in unilateral action, such as providing training to their members relating to harassment, which will improve the employee’s workplace experience.

Political activity by unions includes lobbying for changes in legislation that will facilitate the organization of employees. For example, the United Food and Commercial Workers union (UFCW) has lobbied to change legislation that prohibits agricultural workers from organizing in some provinces. Political activity could also involve working to elect a government that will pass legislation that could help a union negotiate more favourable terms of employment, such as a ban on replacement workers during a strike. Some public relations efforts by unions are aimed at convincing members of the community to support particular unions during contract negotiations with employers. This is especially significant in the public sector where unions have used various forms of media advertising to try to obtain public support.

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Protecting Employees Against Arbitrary Management Action Unions, through terms that are negotiated in the collective agreement, can protect employees from arbitrary management decisions. For example, the grievance and arbitration process, can be used to challenge rules established by management. A union may be able to protect freedom of speech through the collective agreement and the grievance process. For example, during the COVID-19 pandemic, unions such as the Public Service Alliance of Canada encouraged their members to be vaccinated against the virus, however also protected employees who did not want to vaccine when required by their employer.

Providing a Process for Conflict Resolution and Employee Input By providing a process for the resolution of conflict and employee input, unions may assist employers and increase productivity. As well,, union input may facilitate change to working conditions that, in the past, have caused employees to quit. Unions can play a problem-solving role with employers, which may increase efficiency. The grievance and arbitration process and union–management committees are the key methods used here.

Pursuing Economic and Social Change Unions also have objectives for the wider society beyond the work setting. One such change is the British Columbia Teachers’ Union advocating for universities to increase university education degrees to offset the teacher shortage in that province.

III.

Union Structure and Functions

Unions should be considered a business partner seeking to organize and represent employees regarding their terms and conditions of employment with an employer. Businesses have organizational structures that range from simple to complex in design and function.

Union Local The union local, or simply the local, is an administrative unit of a national or international union organization. The roles and responsibilities of union locals are set out in the required constitution and bylaws of the larger sometimes referred to as parent” union organizational structures. There are over 14,000 locals in Canada.

Many union locals have a membership consisting of those who work for one employer in a municipality. Others have members who work for different employers in a municipality. The latter may be referred to as amalgamated or composite locals; an example is Unifor Local 52A representing hundreds of educational support and administrative employees in schools across northern Alberta.

An employer might work with one or more locals that belong to one or more unions. In the simplest case, an employer might work with one local of a union. An example would be the production employees in an auto parts plant who are represented by a local of Unifor. A college could have employees that belong to two locals of the same union, one for faculty and one for .

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support employees. Each local would have its own collective agreement with the employer. In a more complex situation, an employer might work with several locals, each belonging to a different union. For example, a large urban hospital might deal with several locals belonging to different unions that represent nursing, clerical, maintenance, and kitchen employees.

Unions operate on democratic principles that give their members a direct voice in decisionmaking regarding union matters. Local members will elect the officers, usually a president, secretary, treasurer and stewards. Some locals may have an executive committee with members serving in leadership positions. In larger locals, some officers may hold their union positions full-time, but in many locals the officers serve on a part-time basis. Larger locals may also have paid administrative staff.

A local can have its own bylaws and constitution; however, these must comply with any constitutional provisions of its national or international union authority. The bylaws set out matters relating to the governance of the local, including election and duties of officers as well as rules regarding meetings and committee structures. The executive of the local usually has the authority to deal with the employer on day-to-day labour relations issues. Some unions require a general membership meeting to be held within specified times, while others allow for general membership meetings to be held when needed.

A key liaison between the parent union head office and its local branches is the business agent.

This is a resource person who, based on their experience and training, work for one or more union locals handling grievances, assisting with contract negotiation sand providing other administrative or consulting services. Union locals obtain their operating funds from union dues.

The amount of dues is determined by the parent union or at the union local level. The union and employer may agree to deduct dues on a regular basis from the pay cheques of union members and remit the money to the parent union. Dues are a specified percentage of an employee’s earnings, typically 1 to 2 percent, determined through a voting process by the union membership.

Unions prefer to base dues on a percentage of earnings to avoid having to go to the membership to have dues increased as earnings rise. A percentage of dues may be allocated to specific areas, such as establishing a strike fund.

The local might be involved with one or more of the functions, depending on its size, the parent union and the industry.

Most locals have a key role to play in contract negotiation with the employer, which is frequently done at the local level. Although there is some variation between unions, the local usually plays a key role in the day-to-day administration of the collective agreement. If an employee thinks the collective agreement has been violated, they contact their steward or the chief steward of the union local to file a grievance.

Union locals may also become involved with the education of their members, often with the assistance of a national or international representative. For example, a local could provide training relating to the filing of a grievance. Some locals engage in charitable work such as the United Way campaign or other community affairs. Union locals may get involved in political issues. Although national unions and other union bodies deal with political questions at the .

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provincial. Territorial, and national levels, a large local may also get involved in such matters, often through a labour council.

Independent Local Unions Unions that do not belong to a national or international union, such as faculty associations at some universities, are known as independent local unions. They are different from the previously discussed union local. These unions make up only 3.9 percent (188,609) of union membership in Canada. They do not have access to the kind of support or services that national and international unions provide to their locals. Independent local unions are not affiliated with a parent national or international union.

National and International Unions The vast majority of union locals in Canada are associated with a national or international union.

A generic term for these larger organizational units is parent unions. The term national union refers to a union whose membership is confined to Canada, although it may not have members in numerous provinces and territories. Thus, CUPE and Unifor, but also the British Columbia Nurses Union and the Ontario Secondary School Teachers’ Federation, are national unions.

An international union has members in more than one country such as both Canada and the United States with its headquarters in one of the countries. The United Food and Commercial Workers International Union and the United Steelworkers of America are examples of international unions.

At the time of union certification at a workplace, government labour boards require the sponsoring parent union to present evidence that it is a democratically governed organization.

The supreme governing mechanism of the union is the convention, a general meeting typically held every one or two years, to which union locals are entitled to send member delegates. In most cases, the number of delegates sent by a local is based upon the size of the local; however, in a few exceptional cases, all locals are entitled to the same representation. At the convention, officers are elected, policy matters are discussed, and resolutions voted upon. Unions also demonstrate their democratic principles through governing documents such as a constitution and bylaws.

The relationship between the parent national or international union and its union locals may affect an employer. The constitution of a provincial or territorial union may prevent or limit the authority of union local officers in dealings with an employer. For example, a national representative’s signature may be required on all grievance settlements. The national or international union may also influence the demands negotiated by the union local. Or, in contract negotiations, the national representative may warn union local negotiators not to agree to any language in the renewed agreement that endorsed contracting out practices by the employer.

Other parent unions may provide more discretion to their local executive leaders in these and other matters. Although it rarely occurs, the constitution of a union will provide for the possible trusteeship of a local—that is, the national or international union may take control of the local’s affairs if it fails to comply with the union’s constitution, directives or financial affairs. National and international unions have several key functions, most of which relate to providing assistance to their union locals. .

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Trusteeship refers to a parent union temporarily taking direct control of one of its union locals.

The parent union serves as a key resource centre to its union locals. As noted earlier, the business agent from the parent union office advises the union local executive members of available resources and services to assist in the day-to-day administration of the collective agreement and other labour relations needs. It may assist locals with the grievance process by providing one or more of the following: advice on the interpretation of the collective agreement, a database of previous arbitration decisions interpreting the collective agreement, research on related arbitration decisions and a grievance officer or lawyer to appear for the local at an arbitration hearing. Parent union staff may be called on to assist locals with contract negotiations by providing research information on collective agreements in the industry and by sending a representative to be part of the bargaining team negotiating with the employer. It may also offer training in various subjects to union local stewards, including the health and safety inspections, human rights complaints, media relations and return-to-work planning for injured workers.

Unions also seek to influence government legislation and policy directions through lobbying, advertising and appearances before parliamentary and legislative committees. Parent unions have also turned to the courts to achieve their objectives. National and international unions also provide financial assistance and expertise to locals on strike action and attempts to organize nonunionized workers.

Labour Federations and Congresses Labour relations history has shown a desire of unions to form umbrella organizations to represent their interests to governments and to serve their membership on other matters of importance. In Canada, such contemporary union organizations include labour federations and labour congresses. Every province and territory except Nunavut has a labour federation, belonging to a national umbrella body known as the Canadian Labour Congress (CLC).

Provincial and territorial labour federations are involved in lobbying the provincial and territorial governments regarding employment and labour relations legislation, pursuing provincial economic and social policy favourable to employee, conducting research related to workplace issues, educating members, and supporting unions on strike.

Oversight of Canadian employment and labour relations is divided between federal, provincial, and territorial jurisdictions, with provinces and territories regulating 90 percent of employers. A key role performed by labour federations is lobbying provincial governments regarding changes to employment standards and labour legislation and policy directions. When a province or territory is considering amendments to workplace legislation, the provincial federation of labour will put forward a union position. For example, in early 2018, the Ontario Federation of Labour (OFL) supported new provincial legislation, the Pay Transparency Act, requiring employers to disclose their wages to demonstrate compliance with their existing legal obligations under Ontario’s Human Rights Code and the Pay Equity Act. Employers in the Ontario Public Service will first be required to adhere to the pay transparency obligations. Subsequently, following consultations, the obligation will then be extended to employers with more than 500 employees and finally, to those with more than 250 employees. The OFL endorsed the recommendations put .

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forth by the Equal Pay Coalition to strengthen the Pay Transparency Act, including that it must apply to all private- and public-sector employers with more than 10 employees to match the Pay Equity Act. The OFL argued that although all Ontario employers are required to deliver discrimination-free pay under the Pay Equity Act, the reality is that more than half of employers have created and perpetuated the gender pay gap. As a result, on average, Ontario women earn approximately 76.2 cents for every dollar that men earn. https://canadianwomen.org/thefacts/the-gender-pay-gap/ This gap is significantly more pronounced for Indigenous, racialized and immigrant women as well as women with disabilities.

An example of advocacy and educational work performed by labour federation is seen at the British Columbia Federation of Labour (BCFED). The Young Workers’ Committee (YWC) is a standing committee of the BCFED dedicated to encouraging union participation among young people. The committee discusses inequity that young workers face as a result of discriminatory beliefs, policies and legislation. The Young Workers’ Committee (YWC) fights on behalf of all working people in British Columbia for better employment standards and safer working conditions. The YWC educates students in high schools about employments standards and workers’ rights, as well as the role unions play in improving our society. Young workers’ committee meetings are open to any union member 30 years old and younger, with monthly meetings at the BC Federation of Labour office.

Provincial federations of labour do not become directly involved in the negotiation or administration of collective agreements. Union locals handle the negotiation and administration of collective agreements with the assistance of their national or international union.

NATIONAL LABOUR CONGRESSES The largest Canadian national labour congress is the Canadian Labour Congress (CLC), which more than 3 million Canadian employees across national, international and directly chartered unions in the country. https://www.equalpayinternationalcoalition.org/members/the-canadian-labour-congress/ A directly chartered union is a local union that has received a charter directly from a labour congress and is not part of a national or international union. There are only a few such unions, and their membership amounts to only about 1.9 percent of total Canadian union membership, mostly chartered by one of several Quebec labour congresses Directly chartered union receives a charter from a labour congress and is not affiliated with a national or international union.

The constitution of the Canadian Labour Congress sets out how the CLC is organized and governed). Unions that belong to the CLC send delegates to a convention that is held every two years. The conventions elect officers who are responsible for the operations of the CLC between conventions.

One of the key responsibilities of the Canadian Labour Congress is pursuing changes that are favourable to employees and unions in federal employment and labour relations legislation. For example, the CLC advocates in Parliament and in the courts to advance legislation that improves the work lives of Canadians, such as workplace safety, collective bargaining rights and employment equity. The Canadian Labour Congress comments on numerous social and .

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economic issues that impact Canadians. In a news release in early 2018, the CLC called on the federal government to address 11 key issues in its annual budget, including: a commitment to universal pharmacare; funding for a public education campaign on gender-based harassment and violence; and a “Just Transition” training and adjustment fund for workers affected by climate change and the transition to a low-carbon economy, automation and the digitization of work and job losses caused by trade agreements.

The CLC has a code of ethical practices in its constitution, which provides for adequate membership meetings in union locals, democratic elections and honest financial management. A union that fails to adhere to this code can be suspended. The CLC also utilizes a disputes protocol, the purpose of which is to prevent raiding between affiliated unions and to establish a procedure for employees to change unions. Labour Relations 4-2 describes an incident on the subject of raiding involving the Canadian Labour Congress. Raiding refers to one union persuading members of another union to change unions. The practice is generally discouraged in the labour movement, but if the raiding union successfully applies to represent the employees, a situation that is elaborated upon in Chapter 6, it replaces the first union and becomes the bargaining agent for the employees. The CLC also represents Canadian unions in international labour organizations regarding issues on employee rights and social justice.

It should be noted that the CLC does not become directly involved in contract negotiation or the grievance process. It holds workshops and provides materials relating to topics such as union organization, legislation, and contract negotiation. Although employers may have contact with national or international union representatives, they are unlikely to have any dealings with CLC staff.

Labour Councils A labour council is an association of unions in a municipality or region, such as the Vancouver and District Labour Council. These councils work to improve their communities as well as to advance the interests of unions at the regional or municipal level. Their functions include community and charity work, political activity at the local or regional level, training and education on union topics and assisting union locals on strike. An example of the range of community and labour relations issues of interest to a labour council may be seen at the Toronto and York Region Labour Council’s website. Labour councils do not become directly involved with employers in the negotiation or administration of collective agreements.

Union locals belonging to a labour council pay a levy based on the size of their memberships and are represented by delegates who elect officers to do most of the council’s work. The council will have a constitution and bylaws. The constitution of the Canadian Labour Congress requires its affiliated unions to join the labour council in their region; however, some CLC-affiliated locals have not done so.

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Chapter 1 Unions Objectives, Processes, and Structure

Other Features of Union Structure UNION FRAGMENTATION By international standards, Canada has a large number of small unions, even though the trend has been toward unions with a membership of 50,000 or more. Eight of those unions—five of which were national and three international—represented 100,000 or more workers each and comprised 45.1 percent of all unionized workers in Canada.

At the other end of the spectrum, 282 unions had less than 1,000 members each and 140 unions each had between 1,000 and 9,999 members. Small parent unions with small local membership may lack sufficient resources to fully support union-wide or union local-specific needs such as new member organizing drives, contract negotiation and the grievance and arbitration consultations.

CANADIANIZING OF UNIONS In Canada, unions can be divided into four main types: national, international, independent local organization and directly chartered locals (those directly chartered by a labour congress). In the early 1900s, 95 percent of Canadian union members belonged to US-based international unions. In 2015, a strong majority (69.7%) of unionized workers in this country were affiliated with national unions. International unions accounted for almost 25 percent of unionized workers, followed by independent local organizations (3.9%) and directly chartered locals (1.5%).

There are several reasons for this increase in national union membership relative to international union membership. Some Canadian union branches broke away from their international unions in recent decades after disagreeing on policy matters. The establishment of unionization in the Canadian public sector also increased national union membership relative to international membership. Canadian unions appear to have been more active than American unions in organizing employees. There does not appear to be any research examining whether national unions have made greater efforts to organize than the Canadian branches of international unions.

However, there is evidence that international unions are not as effective in organizing campaigns as Canadian national unions. UNIONS AND POLITICS Unions, and their umbrella organizations, are involved in political activity for a number of reasons. One is to influence labour relations legislation, which extensively regulates union–management relations and can make it more or less difficult for a union to obtain the right to represent employees. In some jurisdictions a union can obtain the right to represent employees on the basis of signed membership cards without a vote of employees.

Unions are also interested in issues that affect employees away from their jobs, such as the privatization of health care, the environment and access to education. They can involve themselves in a number of ways: electing independent labour representatives to parliament; supporting a political party that adopts pro-labour policies; working within and supporting one political party such as the NDP; or using more radical methods such as a general strike.

However, they have at times disagreed over what political objectives to pursue and how to pursue them. Legislative changes, the economy and employer policies and practices have all posed challenges. Governments have restricted bargaining outcomes and weakened the position of unions. The economic environment has included periods of recession and the threats posed by free trade. Some employers have fought union certification, and others have engaged in hard bargaining. .

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IV. Review Questions 1. What are some of the characteristics of Canadian union membership and what is the significance of these features?

Union membership is more prevalent for full-time employees as opposed to part-time employees.

Union density for part-time employees is only 23 percent. The low union density amongst parttime employees indicates a weakness of unions. Union membership is now equally divided between males and females. The growth in female membership has increased the importance of issues relating to harassment, childcare, and flexible hours.

Union density for younger employees (persons between 15 and 24) remains low.

Almost one quarter of union members have a university degree. These members are more likely employed in professional areas including teaching and nursing. These groups may be interested in issues in addition to money, including workload and a voice in policymaking.

2. What are examples of unions objectives and processes in today’s workplaces?

Union objectives and processes are summarized in Figure 1-6.

3. What are the key functions of a union local?

The functions of a union local are summarized in Figure 1-8.

4. What is a key distinguishing characteristic between national and international unions?

Both national and international unions are composed of affiliated locals and have their own officers. The distinguishing feature is that a national union such as the CAW only has members in Canada, whereas an international union such as the UFCW has members in both Canada and the United States.

5. What are two functions of a parent union in relations to their union locals?

The functions of national and international (parent) unions are summarized in Figure 1-9.

6. How is the Canadian Labour Congress different from a national or international union?

The Canadian Labour Congress should be viewed as an association of unions instead of a union.

A national or international union assists local unions in connection with contract negotiation and administration. The Canadian Labour Congress does not become involved in these day-to-day union activities.

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7.

Chapter 1 Unions Objectives, Processes, and Structure

What is a labour federation? Name two key functions provided to its member unions.

Labour federations are “umbrella organizations” that represent their interests to governments and to serve their membership on matters of importance. They typically lobbying provincial governments on employment standards legislation, pursue provincial economic and social policies, and support unions while on strike.

11. What is a labour council? How does it serve unions in its service area?

A labour council is an association of unions in a municipality or region. Labour Councils become involved in political activity at the municipal or regional level, training and education of union members, community and charity work, and assisting locals on strike.

V. Discussion Questions 1. What is a key demographic trend you believe is influencing national or international unions?

Students will identify a variety of trends depending on their discussions or online searches.

2. Labour congresses in Canada reach out to international union structures such as the International Labour Organization on various issues. Why is such action relevant today?

The CLC also represents Canadian unions in international labour organizations regarding issues on worker rights and social justice. The text cites the example of the Canada–Colombia Free Trade Agreement (CCOFTA) has been criticized by unions in both countries over incidents where employee expressing interest in joining a union were terminated. This is an example where the CLC has lobbied the Canadian government to adopt social justice policies with a foreign country.

VI. Web Research Students should observe that Liuna is an International Union with affiliated Canadian unions.

They were also historically a craft union that is now more industrial in nature. Both the websites should identify current socio-political issues facing workers in the current environment.

VII. Vignette How Do Labour Relations and Human Resources Management Fit Together?

Labour relations is concerned with managing the relationship between employees and their employer in a unionized environment. Labour relations is ultimately focused on employee welfare— rights, working conditions, wages, and benefits. This would include the certification process, negotiating a collective bargaining agreement, strikes, lockouts, and dispute resolution.

Human resources management (HRM) involves managing the employee–employer relationship cradle to grave—from when the employee joins the organization until they depart. HRM .

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professional responsibilities include labour planning, human capital strategy, employee recruitment and selection, training and development, compensation, occupational health and safety, employee relations, and labour relations.

Labour relations can be held within the HRM department or a separate department in other organizations. While the HRM business partners include the employees, employer, government, and the broader community, labour relations has an additional business partner of the union.

Some organizations work with one union; other organizations work with multiple unions.

Further, labour relations is tasked with ensuring a healthy and safe work environment, discouraging unfair labour practices, and reducing labour disputes and disruptions, while HRM ensures that the human capital is in place to achieve the organizational goals and objectives.

Importantly, labour relations and HRM share the responsibility of ensuring an inclusive, diverse, and equitable work environment.

Sources Davoran, Julie. “Labour Union vs. Human Resource Management Functions.” AZCentral (n.d.), accessed February 2022, https://yourbusiness.azcentral.com/labor-union-vs-humanresourcemanagement-functions-12870.html VIII. Case Incident: A Raise in Pay, But….

1.

What are the different roles played by federations of labour and labour councils?

In this case, the labour federation called for a National Day of Action in protest of the actions of the employer with some success. This is an effort to bring to the attention of legislators the need to protect workers from unilateral actions of the employer when legislation is changes. The local Labour Council arranged protest in Windsor where union representatives indicating that if a union was in place steps would be taken to resolve their concerns. This is done to make unionizing for these employees more attractive.

2. How could the respective roles of these two labour organization influence action by other parties to address the concerns raised by affected Tim Horton’s employees?

In this case, the other two parties are the provincial or territorial government, Tim Horton’s franchise owners, and Tim Horton’s corporation. Their actions could influence the provincial or territorial government to enact additional legislation to protect employees. Local franchise owners may also not implement similar cost containment strategies in order to avoid similar negative public relations. Tim Horton’s corporation may adopt policies to guide franchise owners for future legislative changes.

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3. As an HRM professional at Tim Horton’s corporate office, what steps would you suggest to senior management to handle this situation and hopefully avoid the employees joining a union?

This case highlights the sensitive nature of the relationship between corporations and their franchise owners. From a legal perspective, the franchise owner is independently responsible for meeting the employment standards legislation and the company wishes to keep a hands length relationship with respect to any liability. The corporation could take a union avoidance strategy and suggest to franchise owners not to transfer costs of legislative changes to the employees.

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Instructor’s Manual for Labour Relations, Sixth Edition

Chapter 2 Labour Relations in Canada

CHAPTER 2 LABOUR RELATIONS IN CANADA Preface Chapter two defines each of the key labour relations terms, explore the historical development of Canadian unions; and outline the models of labour relations that illustrate its interplay with society and the economy, in particular the distribution of power. It will also outline how employee relations differs in union and non-union work settings and the relationship among human resources management, labour relations, and (HRM) professionals.

Learning Objectives 2.1 2.2 2.3 2.4 2.5

Explain the importance of labour relations in today’s organizations.

Describe the differences between labour relations, industrial relations and employee relations.

Outline the historical development of unions and the implications of these events.

Recognize the labour relations framework.

Discuss the role of the human resources management professional in unionized organizations.

Outline/Table of Contents

I. II. III. IV. V. VI. VII. VIII. IX. X. XI.

The Importance of Labour Relations in Organizations The Differences between Labour Relations, Industrial Relations, and Employee Relations The Historical Development of Unions and the Implications of These Events The Employment Relationship in Non-union and Union Organizations Human Resource Management Professionals and Labour Relations Labour Relations Perspectives Review Questions Discussion Questions Web Research Vignette Case Incident Lecture Outline/Syllabus

I.

The Importance of Labour Relations in Organizations

Unions are a very important business partner for both employees and organizations. Unions may come to be for numerous reasons. Perhaps, employees in a workplace experience unfair .

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treatment from the organization’s management. If this continues for a prolonged period, and if the unfairness affects a large enough group of employees at the organization, one or more employees may think about seeking outside assistance to restore a balance of interests between the organization and employees. Perceptions of unfairness may also often stem from the perceived differences in employment terms among employees in similar types of jobs in the organization. Or, perhaps, the organizational culture is characterized by employees feeling powerless in frontline and non-management jobs.

All employees in a non-unionized organization have an individual contract of employment with the organization. When a non-union organization transitions to a unionized employer there are new challenges. One of these challenges is reshaping the organizational culture. Additionally, managers may believe they are empowered to make one-to-one decisions with their now unionized employees. Conversely, employees who may have been swept into a new bargaining unit and can no longer ask their supervisor for approval of a scheduling request that is now covered by the new collective agreement.

Importantly, human resources management (HRM) practitioners who transition from a nonunion to a unionized workplace must also make adjustments to how they practice in light of the new rules of a mixed terrain of policies, procedures and a new union contract. The advice and counsel they offer to their management peers must be clear on the range of choices available to supervisors in their day-to-day employee management now governed by a collective agreement.

Organizational culture, management practices and employee perceptions will require time to settle into the new workplace and to build their relationship with a new union partner.

Approximately 30 percent of the Canadian workforce is unionized; however, labour relations affect all Canadians.

II.

The Differences between Labour Relations, Industrial Relations, and Employee Relations

The term industrial relations broads includes both union and non-union matters and workplaces.

As this definition includes both union and non-union workplaces, this means questions regarding topics like the pay of chief executive officers (CEO) to the negotiation of collective agreements would both be industrial relations matters. Others define industrial relations narrowly, contending that the scope of industrial relations is limited to unionized workplaces only. This book adopts the broader definition of industrial relations and views labour relations as part of industrial relations.

Labour relations is then defined as the study of all aspects of the union–management relationship, including the establishment of union bargaining rights, the negotiation process, and the administration of a collective agreement. Therefore, issues that do not involve union– management relations, for example, the question of CEO compensation, are not included as part of labour relations.

Labour relations is all aspects of the union–management relationship, including the establishment of union bar-gaining rights, the negotiation process and the administration of a collective agreement. .

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Law regulating union–management relations is most commonly called labour relations legislation. New Brunswick and federal legislation will see references to industrial relations, this is equivalent to labour relations legislation in other provinces and territories.

Employee relations refers to activities and processes aimed at maintaining a productive workplace while managing the employee-organization relationship. Employee relations includes communication, , employee engagement, wellness, diversity, inclusion, and equity management, and employee rights, performance management, discipline, and termination. Some authorities distinguish between union and non-union employees by using employee relations to refer to nonunion employees and labour relations to refer to unionized employees. Although employee relations activities such as communication and discipline will not cease if an employer is unionized, we will see in a later chapter that some issues such as discipline must be handled differently in unionized workplaces. Employee relations activities and processes aimed at maintaining a productive workplace while meeting the needs of managing the employeeorganization relationship.

III.

The Historical Development of Unions and the Implications of These Events

Events in the Development of Labour Relations 1812 1860s 1872 1886

First union locals of skilled craft workers established US-based unions begin organizing in Canada Unions press for nine-hour workday American Federation of Labour (AFL) established in the United States and Trades and Labour Congress (TLC) established in Canada 1900 Federal Conciliation Act provides for voluntary conciliation in labour disputes 1907 Federal Industrial Disputes Investigation Act passed requiring conciliation in specified industries 1919 Winnipeg General Strike 1925 Toronto Electric Commissioners v. Snyder: federal Industrial Disputes Investigation Act found to be beyond federal jurisdiction 1929 Start of Great Depression 1932 Co-operative Commonwealth Federation (CCF) political party established 1935 Wagner Act establishing collective bargaining rights passed in United States 1939 Industrial unions affiliated with Congress of Industrial Organization (CIO) expelled from TLC 1940 Canadian Congress of Labour (CCL) formed to pursue unionization of industrial employees 1944 Privy Council Order 1003 establishes collective bargaining rights in Canada 1947– Federal Industrial Relations and Disputes Investigation Act (now the Canada Labour Code) and provincial labour relations statutes (starting in early 1950s) passed 1956 TLC and CCL merge to establish the Canadian Labour Congress 1961 New Democratic Party established to succeed CCF 1967 Public Service Staff Relations Act establishes collective bargaining rights in federal public service; similar provincial legislation subsequently enacted 1975 Federal wage and price controls program introduced .

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1982 1985 1991 1994 2007 2013 2015

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Charter of Rights and Freedoms contained in the federal Constitution Act becomes law Canadian division of United Automobile Workers breaks away from international federation and establishes Canadian Auto Workers Federal government freezes public-sector wages; subsequently some provincial governments adopt similar restraint legislation Federal government extends collective agreements with public-service employees and suspends salary increments Supreme Court of Canada holds that the freedom of association provided in the Charter includes a procedural right to collective bargaining in the Health Services case National Automobile, Aerospace, Transportation and General Workers of Canada merges with the Communications, Energy and Paperworkers Union to form UNIFOR Supreme Court of Canada strikes down a Saskatchewan law that prevents publicsector employees from striking, declaring such a prohibition to be unconstitutional

Early Unions Canada’s first labour organizations, in the early 1800s, were independent local unions made up of skilled craft workers such as printers, blacksmiths and shoemakers. They were concerned with protecting their craft status from unskilled workers and providing assistance to their fellow tradesmen who were sick or unemployed. In the following decades, the animosity between craft unions and industrial unions was an issue that divided the labour movement. Craft unions and the labour congress they belonged to did not encourage the organization of unskilled workers in industrial unions. In the 1860s and 1870s, there were attempts to form a national congress made up of local unions. The Canadian Labour Union was the first of these to be established.

However, an economic downturn in the 1870s led to the demise of this organization—an early indicator of how the economic environment could affect unions.

The legal environment at the time was also hostile to the organization of unions. The basic rights of employees and unions that are part of today’s labour relations system, including the right to organize, the obligation to bargain with the union and prohibitions against discrimination for union activity, did not exist in Canada until 1944. Prior to 1872, restraint of trade laws were applied to union organizing activity, making forming a union an illegal conspiracy and subjecting trade and union supporters to possible arrest and imprisonment. Employers also engaged in practices to avoid unions, including agreements used by late 19th-century employers when dealing with Asian immigrants and other labourers to allow these employees to be terminated if there was evidence that they previously had belonged to a union or if they should support a union organizing drive while employed. Organizations could also ban blacklist former employees who supported unions by identifying them to future employers as union supporters and thus preventing them from being hired.

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Entry and Influence of International Unions From the mid-1800s to the early 1900s, organizing drives initiated by US unions led to the organization of thousands of Canadian employees. By 1902, 95 percent of Canadian union members belonged to international unions based in the United States.

International unions dominated the Canadian labour movement in this period for a number of reasons. The US-based unions sought to organize Canadian employees to avoid the possibility of American employers moving work to non-union workplaces in Canada. Canadian employees were drawn to US unions because they were larger, stronger and had more resources available, including larger strike funds. This was also a time when some Canadians worked for part of the year in the United States and membership in an American union could be an advantage when seeking employment.

The American Federation of Labour (AFL), a federation of national and international craft unions, was formed in the United States in 1886. In the same year, the Trades and Labour Congress (TLC), the first central labour federation to succeed in Canada, was established and was heavily influenced by the AFL. For example, the TLC followed the AFL practice of not affiliating itself with any political party.

The influence of the US international unions and the AFL affected the philosophy and scope of the Canadian labour movement. The philosophy of the US unions at that time became known as business unionism. Unions focused on improving the compensation and working conditions for unionized employees through collective bargaining with the employer. In contrast, an alternative union philosophy known as social unionism was concerned with improving the compensation and working conditions of bargaining unit members, while also seeking broader economic and social change. The notion of social unionism is still reflected today. UNIFOR, currently the largest private-sector union in Canada, has proclaimed itself to be committed to social unionism, which it describes as follows: Early Labour Legislation and the Rise of Industrial Unions In 1900, the federal government passed the Conciliation Act, which was a response to strikes and provided for voluntary conciliation of contract disputes. Following a strike in the coal industry, which caused hardship to the public, the federal government passed in 1907 the Industrial Disputes Investigation Act. This legislation required employers and unions in affected industries to submit contract disputes to a tripartite conciliation board before a strike or lockout could legally take place. However, it should be noted that while this legislation was aimed at preventing strikes and lockouts, it did not require employers to recognize or bargain with unions.

Some observers view the 1919 Winnipeg general strike as a turning point in the history of the labour movement in Canada. It started when metal trades employees walked off their jobs to support demands for union recognition and wage increases. This will followed by the Hello Girls, female telephone operators, who were the first to join the metal workers and start a broader General Strike in Winnipeg in 1919. The Winnipeg Labour Council supported the employees’ demands and over 30,000 other employees walked off their jobs in a general strike. The strike .

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ended after strikers clashed with the RCMP and saw two employees killed. This episode was significant because it may have ended any further attempts to establish a more radical labour movement in Canada. There was still no legal requirement that employers recognize a union, they had to resort to recognition strikes.

In 1925, there was a court decision that significantly affected the Canadian labour relations system. In the case of Toronto Electric Power Commission v. Snyder, the federal government’s authority to enact the Industrial Disputes Investigation Act was challenged. The employer involved contended that the federal government did not have the authority to pass legislation regulating its business, as labour relations was a provincial matter. Although the Supreme Court of Canada upheld the legislation, an appeal to the British Privy Council ruled that the federal legislation could not be applied to the employer. Snyder is significant because it firmly established a divided jurisdiction for Canadian labour relations. The federal government now was seen to have jurisdiction over approximately 10 percent of the workforce, including employees in industries such as banking and interprovincial transport. The remaining 90 percent of the workforce was subject to provincial labour laws.

In the 1930s the conflict between US unionists wanting to pursue the organization of industrial employees and those who did not continued, eventually spilling over into Canada. The drive to organize industrial employees in Canada did not have the same success as it did in the United States, largely due to changes in US legislation. In 1935, as part of the US government’s effort to rebuild the economy after the Great Depression, the National Labour Relations Act (Wagner Act) was passed. The Wagner Act established a new industrial relations climate for US employers and unions, by providing for the following: Wagner Act established the right to organize, compulsory bargaining and prohibition of unfair labour practices in the United States.

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The recognition of employees’ right to join a union

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The establishment of a National Labour Relations Board

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A certification process through which unions could obtain the right to represent employees by application to the board

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Prohibition of unfair labour practices by employers, including interfering with employees’ right to organize, domination of a union and discrimination against employees for union activity

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The requirement that employers bargain in good faith with a union certified by the Board

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This American legislation was a major public policy development. The law no longer allowed employers to use many of their previous tactics such as threatening employees with dismissal or relocation, using contracts and refusing to deal with a union in order to defeat it.

World War II led to a period of economic growth and increased union membership, which doubled from 1939 to 1944. Unemployment fell due to the war effort, and the cost of living increased. The early 1940s was a period of labour unrest with a large number of strikes. Labour leaders in Canada called for legislation equivalent to the Wagner Act. At this time, the Cooperative Commonwealth Federation (CCF), a socialist party based in Western Canada, was enjoying political success and attracted support from union members. In 1943, a Gallup poll showed the CCF ahead of both the Liberals and the Conservatives. A year later, the demands of labour and the political threat of the CCF led to the enactment of Privy Council Order 1003 (PC 1003). This wartime labour regulation brought to Canada the principles established by the Wagner Act. As the foundation of modern Canadian labour relations legislation, it established: Privy Council Order 1003 established the rights and obligations fundamental to labour relations in Canada.

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The right to join a union

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A Labour Relations Board

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A certification process by way of an application to the Board

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The prohibition of unfair labour practices by unions and employers

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Compulsory bargaining when a union has been certified

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A compulsory conciliation procedure before a strike or lockout

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A provision that no strike or lockout can occur during the life of the collective agreement

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A provision that all collective agreements were deemed to contain an arbitration procedure for the resolution of disputes

PC 1003 prohibited many of the prior practices that employers had used to avoid unions such as threatening, intimidating or discriminating against employees. For the first time, employers were required to recognize and bargain with certified unions. The law also now made it illegal for unions to strike to obtain recognition. After the war, the federal government enacted the Industrial Relations and Disputes Investigation Act, which incorporated the principles established in PC 1003. The legislation covered only industries within the federal jurisdiction. This federal legislation is now Part 1 of the Canada Labour Code. Using PC 1003 as a model, Canadian provincial governments enacted their own labour relations statutes covering provincially regulated employers.

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Public-Sector Unionization Until the mid-1960s, most public-sector employees in Canada did not have the right to unionize.

The federal government enacted the Public Service Staff Relations Act in 1965, providing federal employees for the first time with the right to organize. By the early 1970s, the provinces had enacted public-sector collective bargaining legislation, with some jurisdictions providing for arbitration instead of the right to strike. Collective bargaining rights for public-service employees indirectly led to the unionization of white-collar and professional employees in the private sector.

Some private-sector professional employees, who had not previously organized, pursued unionization after they witnessed the gains made by public-sector employees. The granting of bargaining rights to public-sector employees had a major effect on total union membership and the composition of the labour movement. From 1964 to 1969, union membership almost doubled, climbing from 1.5 million to almost 3 million members.

With the passage in 1982 of the Constitution Act and its Charter of Rights and Freedoms, unions soon tried to use the Charter to challenge laws, policies and government actions related to labour relations. There has also been a trend by both the federal and some provincial governments to use back-to-work legislation in the early decades of the 21st century. The declining tolerance of citizens, inconvenienced by public-sector union work stoppages, has fueled such considerations. A 2008 public transit strike later caused the City of Toronto to ask the Ontario legislature in 2011 to declare the Toronto public transit system an essential service.

The new law removed the Amalgamated Transit Union’s right to strike. In 2015, the Supreme Court of Canada struck down the Saskatchewan government’s removal of public-service employees’ right to strike. An example of how this 2015 decision has influenced collective bargaining was seen a year later when the Alberta government passed the Essential Services Act, which gave employees the right to strike as long as employers and unions agreed on some form of contingency plan.

Frameworks for Labour Relations The core elements of labour relations include: unions organizing employees; the negotiation of collective agreements; and the administration of those agreements during their terms. There are numerous approaches to, or perspectives on labour relations. Two dominant perspectives are the systems approach and the political economy approach.

Industrial Relations Systems Approach—John Dunlop Discussion of a theory for labour relations should begin with John Dunlop’s outline of industrial relations (IR) systems. Dunlop was a labour economist who taught at Harvard University from 1938–1984. He served as an influential post-World War II figure in government and industrial relations in the United States. One of his key contributions was the Industrial Relations (IR) Systems model.

The model proposed by Dunlop has been criticized. One such critique is that it underestimated the role of conflict in the system. Others have challenged his assumption of a shared ideology among the actors. Specifically, they contend that since the 1980s some American managers have .

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not shared an ideology with unions, and in fact have attempted to eliminate them. Nevertheless, Dunlop’s model has served as the starting point for other models of labour relations. An understanding of the basics of the model is valuable because some commentators refer to components such as a “web of rules” without explanation, assuming that the reader is familiar with the model.

Elements of Dunlop’s IR Systems Model ACTORS OR PARTIES agencies

Employers, unions representing employees and government and its

CONTEXT Forces that influenced the demands on, and interactions between, the actors.

Examples here include technology (e.g., automation and its impact on the size of the labour force), the product and factor markets (e.g., the extent of the market held by the employer) and the power balance between the actors (e.g., the ability of unions to influence changes to labour legislation).

WEB OF RULES There were three sets of rules that applied to labour relations: rules determined by the employer (e.g., workplace policies), rules created within the negotiated collective agreement (e.g., work schedules) and rules created by government and its agencies (e.g., labour legislation and arbitration decisions).

BINDING IDEOLOGY In Canada and the United States, this ideology includes an agreedto general acceptance by the actors of capitalism and of unions as legitimate representatives of employees.

The Canadian scholar Alton Craig expanded upon Dunlop’s model, outlining an “open systems” approach that provides for feedback “loops” as an essential component of an industrial relations system. The system outlined by Craig is the basis for a framework provided in Figure 1-1.

“Open-system” Industrial Relations—Alton Craig Figure 1-1 details a simplified example of Craig’s “open systems” industrial relations model. His framework has five elements: the environment that may directly or indirectly influence all other aspects of the model; the actors or parties involved in labour relations; the processes or activities in which the parties are engaged; the outputs or results of the parties’ activities; and feedback to the first four elements.

THE ENVIRONMENT The environment refers to the economic, technological, social, political and legal factors that affect the parties and their activities and processes. Environmental factors tend to cause the actors or parties in this framework to react to these influences. One may consider, for example, how changes in technology, which allow employers to track more information and monitor employees, can lead to changes in the legal environment such as privacy legislation to protect employees.

Economic Environment—the economic environment refers to the economy of the nation and the competitive position of an organization in a particular industry. For example, if there is an in.

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crease in inflation or new competitors in an industry, the union and the employer will be affected when considering pay rates for bargaining unit members.

Technological Environment—the technological environment refers to developments in knowledge that lead to new products and services that could influence, for example, methods of production. Technological developments can also affect union and employer objectives in a number of areas, including job security, training and health and safety.

Social Environment—the social environment refers to the values and beliefs of Canadians relating to work, unions and employers. These values and beliefs may make communities more or less inclined to join or support unions.

Political Environment—the political environment refers to the Canadian political system and the effect it has on labour relations. The political system directly affects the legislation that regulates unions and employers. In November 2017, the Ontario government passed back-to-work legislation ending a five-week strike by community college faculty, librarians and counsellors.

Public pressure on the Liberal government to end the strike, affecting some 500,000 students, contributed to this action.

Legal Environment—the legal environment refers to all of the law that affects employees, unions and employers. Unions and employers are heavily regulated by labour relations legislation, which governs matters such as how a union organizes employees and how employers are allowed to respond. Human rights legislation is playing an important role in the administration of collective agreements. For example, addiction to alcohol or drugs is a disability under human rights legislation, requiring employers to reasonably accommodate employees in such circumstances.

ACTORS OR PARTIES There are three main parties shown in Figure 1-1: employers, unions and government. We are concerned with the objectives, power and values of each, because these variables in turn affect the processes or activities they undertake in the next element of the framework. For example, if unions perceive that job security is threatened, their objective will be to attempt to negotiate provisions such as increased layoff notice. If governments think that inflation is a problem, they could enact legislation that puts limits on wage increases.

Other parties also play a role in addition to the three main actors. For example, conciliation officers and mediators are involved in contract negotiations. Arbitrators play a key role in the resolution of disputes relating to the interpretation of collective agreements. Labour relations boards are critical to the system because they administer legislation that governs unions and employers. It might be argued, too, that organizations such as think tanks that comment on public policy and attempt to influence the public and governments are another type of actor. Examples of such organizations include the Conference Board of Canada, the C.D. Howe Institute and the Fraser Institute.

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PROCESSES AND ACTIVITIES The third element of the framework refers to the various processes and activities the parties or actors might engage in. It should be noted that the parties do much more than negotiate collective agreements. The list of activities also includes unilateral action by management and unions. For example, if an issue is not governed by the collective agreement, the employer might make changes on its own initiative such as a use of technology policy.

Union–management committees are another important process involving these parties. Some collective agreements establish various committees relating to job classifications, health and safety and other issues. In some workplaces, the employer and the union may establish other union–management task groups not referred to in the collective agreement. In these cases, unions are looked at as one of many stakeholder groups asked to contribute to a particular organizational outcome.

Political activity refers to attempts by unions and employers to influence elections and legislation passed by governments. Employer associations may lobby political parties related to desired changes in labour laws. Unions might try to influence government to pass stronger health and safety legislation. Strikes and lockouts are shown in Figure 1-1 as both a process and an output: either as part of the negotiation process that produces collective agreements or as a result of the negotiation process.

OUTPUTS OR RESULTS The fourth component of the framework sets out the possible results of the processes and activities of the parties. The primary output or result will either be the achievement of a renewed collective agreement that sets out terms and conditions of employment, or a strike or lockout due to unresolved issues between the parties in collective bargaining.

During the term of a collective agreement, unresolved disagreements regarding the interpretation, application or administration of the terms and conditions set out in the contract will result in a rights arbitration process.

Legislation has been included as both a process and an output in the figure—as a process because it is an important activity of government, and as an output to indicate that legislation could be the result of the political activity of unions and employers.

FEEDBACK Craig’s contribution to a systems model for industrial relations is seen in this final and essential feature of this model that shows how the elements of the framework are interconnected and affect each other.

Loop 1 (from Processes to Parties) This shows that an experience with a particular process can lead to one or both of the parties seeking to change it. We will see later that rights arbitration, which is used to settle disputes relating to the administration of the contract (such as the termination of an employee), can be slow and costly. This might affect the objectives of the parties.

They might seek alternative methods to resolve disputes in the future. If the employer takes unilateral action that the union objects to, the union’s negotiation objectives will be affected. If

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the employer introduces a dress code, the union might attempt to deal with this in the next round of negotiations.

Loop 2 (from Outputs to Processes and Activities) Here an output of the system can affect the processes used by the parties. Legislation, as an output, might prevent the parties from using a strike or lockout during negotiations, or provide for regulations such as a strike notice.

Loop 3 (from Outputs to Actors or Parties) This shows how outputs from the system can affect the parties, specifically, their objectives, power and values. An extended strike might cause the parties to seek ways to improve their relationship and avoid confrontation in the future. A significant increase in wages might lead the union to focus on alternative objectives in the short term, such as obtaining work sharing or early retirement provisions.

Loop 4 (from Outputs to the Environment) Outputs in the labour relations framework can affect the environment. Wage increases and work stoppages affect the economy. Work stoppages can also affect the attitude of the public toward a particular union or unions in general.

Note that in addition to the loops, there might be links within one of the boxes shown in the framework. The best illustration of this is that an increase in wages and benefits might affect other outputs such as job satisfaction and turnover.

Political Economy Approach The political economy approach to labour relations emphasizes that labour relations is affected by broader issues in society and the economy, in particular, the distribution of power. In adopting a political economy approach, some observers argue that features of the labour relations system maintain the existing social order and distribution of power in society. It is asserted that employers have the upper hand when dealing with employees, and the establishment of small fragmented single-employer bargaining units means that employees do not have sufficient power to deal with employers. Also, the broad definition of a strike in some jurisdictions, which includes any work stoppage whatever the reason, coupled with the prohibition against strikes during the term of the agreement, means that employees and unions cannot use the strike weapon to pursue political or social change.

John Godard views labour relations from a political economy perspective. He argues that conflict is inherent in the employment relationship for a number of reasons, including: 1. There is a fundamental conflict of interest between employers and employees. It is in the employer’s best interests to minimize the wages paid to employees, design work so that it re-quires lower skill levels, and maximize worker effort.

2. The nature of the employment relationship leads to conflict. In society, the values of freedom and democracy are accepted as the norm. In contrast, the relationship between employers and employees is based on the subordination of the employee, and this is a source of conflict.

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3. The nature of one’s work is a potential source of conflict. Surveys have established that over 80 percent of employees are satisfied with their jobs; however, employees report high levels of concern regarding workload, stress and fatigue.

It is possible that environmental factors, including the economy, may either help or hinder change. We will see later that aspects of the legal environment may also impact labour– management collaboration. The parties’ power and values may also be factors. An employer who is in a position of power can implement changes despite union opposition. Employers and union leaders may not believe that collaboration is in their best interest. The processes used by employers and unions—such as traditional confrontational bargaining—may entrench an adversarial relationship.

IV.

The Employment Relationship in Non-union and Union Organizations

Non-union Workplaces Legal basis for Individual contracts of employment relationship Terms of By individual employees employment negotiated Nature of Possibly unique for each employee employment terms

Unionized Workplaces Collective agreement By the union Identical for all employees in the same job class covered by the collective agreement Employer must comply with notice and severance provisions of the collective agreement, subject to minimum provisions in employment standards legislation.

If employer establishes just cause, notice and severance provisions of collective agreement do not apply. If employer fails to establish just cause, reinstatement is possible.

Constructive dismissal doctrine does not apply.

Employer has obligation to give reasonable notice based on age, length of service and position held, subject to minimum provisions in employment standards legislation.

If employer establishes just cause, reasonable notice does not have to be provided. If employer fails to establish just cause, employer must provide reasonable notice but does not have to reinstate.* regarding constructive Changes in terms Law dismissal prevents significant of employment changes without consent.

Grievance and arbitration process Process to resolve Court action provided in collective agreement disputes *There is an exception in the federal and Nova Scotia jurisdictions. Non-managerial employees who are not covered by a collective agreement have recourse to an unfair dismissal procedure that may lead to reinstatement.

Dismissal where no cause or allegation of employee misconduct Dismissal where cause or employee misconduct is alleged

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Terms of Employment There is a fundamental distinction in the nature of employment contracts in non-unionized and unionized employment settings. In the non-union workplace, the employer negotiates directly with each employee to establish the terms and conditions of employment. When a union negotiates a collective agreement with an employer, these individual contracts of employment, held by employees prior to the union gaining bargaining rights, are replaced by the negotiated collective agreement. Although non-union employers commonly establish consistent policies to standardize terms of employment such as vacation, the terms of individual contracts of employment might be different for employees doing the same job. For example, the employer might agree to provide one employee in a job class with additional vacation time. When employees are unionized, the terms and conditions of employment are the same for the applicable bargaining unit members. Thus, the accumulation of annual vacation entitlement will be set out by some factor, such as seniority, for all unionized employees in a job class.

Employee Termination There is also a major difference between unionized and non-union workplaces when employees are terminated. When an employer terminates a non-union employee, where there has not been any employee misconduct, there is a legal obligation to provide the employee with reasonable notice. This should not be confused with the notice required by employment standards legislation, which is minimal, based upon the length of service. The reasonable notice required under the common law depends primarily upon factors such as the age, length of service, position held by the employee at the time of termination and the current employment market regarding similar employment opportunities. If the employer dismisses a non-union employee without providing the employee with reasonable notice, the employee can pursue a civil court action against the employer for wrongful dismissal. This legal action is concerned with the issue of whether the employer provided sufficient notice, not with the issue of whether the employer had a valid reason to dismiss the person.

In a unionized setting, the obligation to provide reasonable notice is eliminated. Instead, the employer must comply with the notice provisions of the collective agreement. Some unions have been able to negotiate collective agreements that provide for significant notice in the event of termination; however, some collective agreements do not provide as much notice to employees as the common law would require pursuant to the reasonable notice requirement. This may be one area where the terms and conditions available to some unionized employees are not as favourable as those available to non-union employees.

Reasonable Notice is the notice period employers are required to provide to employees on the basis of factors including age, position, length of service and the current employment market for similar positions.

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Wrongful dismissal is a rule of employment law dealing with situations of dismissal without just cause wherein the employer violates its common law duty to provide reasonable notice of termination to the employee.

Where the employer dismisses an employee alleging just cause—that is very serious employee misconduct such as theft, assault or insubordination that justifies dismissal without notice—there is a fundamental difference between the union and non-union settings. If the non-union employer establishes just cause, no notice is required. The non-union employee may decide to file a wrongful dismissal claim against the employer if they believe there is no just cause for terminating their employment. Even if the employer fails to establish just cause, it will have to provide reasonable notice of termination, but will not have to reinstate the employee in most jurisdictions. I In a unionized setting the union can challenge a dismissal. An arbitrator reviewing a union grievance on the matter of the employee’s termination of employment may order the employer to reinstate the employee to their job. This means the employer’s ability to terminate unionized employees is significantly reduced and offers job security that non-union employees do not have.

Just cause the employer alleges there was very serious employee misconduct such as theft, assault, insubordination that justifies dismissal without notice.

Constructive Dismissal A non-union employer considering fundamental changes in the terms and conditions of employment must be concerned with the doctrine of constructive dismissal.

This is a rule of employment law where the employer makes a fundamental breach of an employment contract that entitles the employee to consider them self-dismissed and to sue the employer for wrongful dismissal. For example, if the non-union employer unilaterally relocates employees, reduces compensation, or demotes an employee to a lower status position, it could face a claim in civil court and be ordered to pay damages.

The doctrine of constructive dismissal does not apply to unionized employees. The employer can make changes in the terms and conditions of employment that are provided for in the collective agreement. For example, in a downsizing and layoff situation, the employer must apply the seniority provisions in the collective agreement, and employees who have been demoted cannot claim that they have been constructively dismissed.

In the event of a dispute between an employer and a non-union employee, the dispute is typically resolved through a civil court action if the parties cannot settle the matter. This is disadvantageous to individual employees, who are not likely to be able to afford prolonged court proceedings. Although there has been some increase in the use of alternative dispute resolution methods such as mediation, these methods cannot be forced upon the parties. In unionized workplaces, unresolved disputes are referred to the grievance and arbitration process. This is significant for a number of reasons, including the fact that this process does not involve any cost to the unionized employee.

Unionization can significantly affect the wages, working conditions, job security and job satisfaction of employees. There is evidence of higher hourly wage rates paid to unionized employ.

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ees versus non-unionized Canadian employee. For example, in 2021, unionized employees with a collective agreement earned $1208.91 per week while non-unionized employees earned $1049.83 per week https://www150.statcan.gc.ca/t1/tbl1/en/tv.action?pid=1410013401 There evidence indicating that unionized employees have lower job satisfaction than non-union employees. https://hbr.org/2017/08/research-shows-unionized-workers-are-less-happy-but-why However, international studies have questioned a failure in previous research to control for factors such as working conditions or the degree that local bargaining is permitted in contract negotiations with the employer.

V. Human Resource Management Professionals and Labour Relations Human resources management (HRM) may be defined as the strategic and operational practices to attract, retain and engage employees who possess the required knowledge, skills, abilities and other attributes to achieve the organizational strategic goals and objectives. Specifically, HRM includes each of the practices including job analysis, human resources planning, employee recruitment and selection, onboarding, training and development, compensation and benefits, health and safety, employee and labour relations.

Human Resources Management Human resources management (HRM) may be defined as the strategic and operational practices to attract, retain and engage employees who possess the required knowledge, skills, abilities and other attributes to achieve the organizational strategic goals and objectives. Labour relations is part of human resources management. In larger organizations, there might be dedicated human resources management and separate labour relations professionals and departments. Alternately the labour relations department may be a department within the human resources management department. For example, McMaster University houses their labour relations department within their human resources department.

In organizations with a smaller unionized workforce, labour relations activities may be carried out by an HRM practitioner, with support from outside consultants particularly legal advisors.

The Chartered Professionals in Human Resources (CPHR) Canada, the Human Resources Professionals Association (HRPA) in Ontario, and the Society of Human Resources Managers (SHRM) for human resources management professionals practicing labour relations. Each of the competencies are embedded throughout this book.

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Figure 2-5 Human Human Resources Professional Association Competency Framework

SOURCE: Human Resources Professionals Organization, Human Resources Professional Competency Framework (n.d.), p. 8.

Table 2-4 Human Resources Professional Association—Required Professional Competencies 50.2 LEGISLATION, COLLECTIVE AGREEMENTS, AND POLICIES C116 Maintain knowledge of the details of collective agreements in place in the organization and in related organizations.

C117 Maintain knowledge of legislation that affects the HR practices at the organization.

C015* Maintain understanding of the organization’s vision, mission, values, and goals.

C118 Treat employees in accordance with the principles of natural justice.

C119 Manage the risk of litigation and conflict in all interactions with employees.

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50.3 LABOUR AND EMPLOYEE RELATIONS STRATEGIES C120 Evaluate the risks associated with alternative labour and employee relations strategies.

C121 Evaluate the costs associated with alternative labour and employee relations strategies.

C122 Evaluate the benefits associated with alternative labour and employee relations strategies.

C123 Formulate alternative labour and employee relations strategies to achieve business objectives.

C124 Analyze the overall strengths and weaknesses of alternative labour and employee relations strategies.

C125 Recommend optimal labour and employee relations strategies.

50.4 NEGOTIATION C001* Maintain awareness of broad economic, societal, technological, political, global, and demographic trends.

C126 Formulate negotiation strategies that take into consideration variables within and outside the organization.

C127 Negotiate to resolve labour and employee disputes.

C128 Participate in mediation processes in an effective and balanced manner.

C129 Participate effectively in or facilitate arbitration proceedings. *An asterisk is used to denote a competency that appears more than once.

SOURCE: Human Resources Professionals Organization, Human Resources Professional Competency Framework (n.d.), pp. 9, 17–18.

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Figure 2-7 Society for Human Resource Managers (SHRM) Competency Model

SOURCE: Society for Human Resource Management, SHRM Competency Model (2012), p. 9, https://www.shrm. org/LearningAndCareer/competency-model/ Documents/Full%20Competency%20Model%2011%202_10%201%202014.pdf.

VI.

Labour Relations Perspectives

1. Some employers attempt to avoid unionization by paying non-union employees wages that are equivalent to the wages paid unionized employees. True. Students may be familiar with situations where employers have paid non-union employees wages equivalent to unionized workers.

2. Over the past 30 years, the percentage of employees who are represented by unions has dramatically declined in Canada False. Union density has declined in Canada, yet the decline cannot be described as dramatic.

3. A government might pass special back-to-work legislation ordering an end to a strike in the public sector. False. Although it is exceptional, a few strikes in the private sector have been ended by back- to-work legislation. Students could be referred to the significance of strikes by asking why a government might pass back-to-work legislation.

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4. When a union attempts to organize employees, there is always a vote held to determine if the employees wish to be represented by the union. Depends on jurisdiction. The issue of whether a union should be certified by relying on membership cards or a representation vote is critical.

5. Collective agreements can provide that employees are required to become union members.

True this is written in closed shop collective agreements.

6. An employer could be forced to terminate an employee who refused to join the union.

False. Employers can only terminate employees for just cause.

7. When a vote is held to authorize a strike, all employees in the group—both union members and employees—who would be on strike are entitled to vote. True. There is a requirement for a strike vote and all employees in the bargaining unit are entitled to vote.

8. When an employee takes a complaint to their union—for example, the employee alleges termination without cause—the union is required to pursue the matter with the employer.

False. This question deals with the issue of the ownership or control of the grievance and arbitration procedure. In most cases it is the union that has the ownership or control over the grievance and arbitration process, and the union can determine whether a grievance is referred to arbitration. This is subject to the union's duty of fair representation in many jurisdictions.

9. Unions reduce productivity and profitability. False. The statement lumps productivity and profitability together, and they should be considered separately. On average unionized firms are less profitable; however, the effects of unions on productivity are less clear. In some situations unions have increased productivity. It may help students to understand this if they recognize that productivity refers to the amount produced per worker. If employers make technological improvements so that the number of workers is reduced but output remains the same or increases, productivity has been increased, although employment may have been reduced.

VII.

Review Questions

1. Distinguish between labour relations and industrial relations.

This text defines labour relations as referring to all aspects of the union-management relationship including issues relating to how a union gains the right to represent employees, the negotiation of a collective agreement, and the administration of the agreement. The key point is that labour relations is used to refer to some connection with, or aspect of unionization. Industrial relations is a broader field of study which covers all work related issues at both union and non-union workplaces. As the terms are used here, labour relations is a part of industrial relations. The issue of whether unionized teachers should be allowed to strike is a labour relations issue.

Controlling absenteeism, a concern in both union and non-union settings, is an industrial relations issue.

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What are two likely consequences of unionization? Explain why these outcomes may be perceived as having a positive or negative impact on those affected by this change.

The purpose of this question is to have students watch for and think about the effects of unionization as they proceed in the text. Students should later see that employer recruiting, selection, training, compensation, ability to manage, productivity, and profitability are impacted by unionization. Unionization also affects employees because it impacts employee job security, job satisfaction, compensation, training and development, and working conditions.

3. a) Explain the meaning of the following statement: “An employer has constructively dismissed a non-union employee.”

A constructive dismissal refers to the employer making significant changes in terms of employment without the consent or agreement of the employee. Employers could constructively dismiss non-union employees when they reduce compensation, change the location of the employment, or impose a demotion. A constructive dismissal may be treated as a termination by the non-union employee, entitling the employee to any notice provisions or payments provided for under employment standards legislation and reasonable notice at common law. At one time it was thought that an employer could avoid a constructive dismissal by providing the employee with reasonable notice of the change in the terms of employment. However, a 2008 decision of the Ontario Court of Appeal, Wronko v. Western Inventory Service Ltd., called this into question.

The employer’s application to the Supreme Court of Canada to appeal this decision was dismissed. Accordingly, at this time there may be a difference in the law between provinces. In Ontario, providing advance notice will not be by itself be sufficient to avoid a claim for constructive dismissal. The employer will have to go further and advise the employee that if they refuse to accept the change or new terms of employment the existing contract will be terminated the end of the working notice period and offer to rehire the employee under the changed terms after the working notice period has expired. Courts in other provinces are not bound by this Ontario Court of Appeal decision and it is possible that in some provinces an employer may be able to avoid a constructive dismissal claim simply by providing reasonable notice of the change in the terms of employment. b) Can a unionized employee be constructively dismissed? Explain why or why not.

No. The doctrine of constructive dismissal does not apply to unionized employees. The issue for a unionized employee is whether any change complies with the collective agreement. For example, if there was a collective agreement which covered two locations, and an employee was moved from one location to another, a claim of constructive dismissal could not be made - the issue would be whether the relocation was done in compliance with the collective agreement.

Similarly, if a unionized employee is demoted in the process of a downsizing, the issue is whether the collective agreement was complied with; the employee cannot claim that there has been a constructive dismissal.

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4. How did the Wagner Act influence labour relations in Canada?

In 1935 the Wagner Act in the U.S. established collective bargaining rights including mandatory bargaining. In 1944 PC 1003 was passed in Canada. This is viewed as a major turning point in the development of labour relations and is the foundation of current day labour relations. The features of PC 1003 are listed in the text.

5.

Identify three factors in the environment and for each one, explain the impact of such forces on one of the processes and activities or the outputs or results seen in the Framework for Labour Relations.

Economic Environment—the economic environment refers to the economy of the nation and the competitive position of a firm in a particular industry. For example, if there is an increase in inflation or new competitors in an industry, the union and the employer will be affected when considering pay rates for bargaining unit members.

Technological Environment—the technological environment refers to developments in knowledge that lead to new products and services that could influence, for example, methods of production. Technological developments can also affect union and employer objectives in a number of areas, including job security, training and health and safety.

Social Environment—the social environment refers to the values and beliefs of Canadians relating to work, unions and employers. These values and beliefs may make communities more or less inclined to join or support unions. This is seen in variations in union density across provincial jurisdictions in Canada.

Political Environment—the political environment refers to the Canadian political system and the effect it has on labour relations. The political system directly affects the legislation that regulates unions and employers. In November 2017, the Ontario government passed back-to-work legislation ending a five-week strike by community college faculty, librarians and counsellors.

Public pressure on the Liberal government to end the strike, affecting some 500,000 students, contributed to this action.

Legal Environment—the legal environment refers to all of the law that affects employees, unions and employers. In later chapters, we will see that unions and employers are heavily regulated by labour relations legislation, which governs matters such as how a union organizes employees and how employers are allowed to respond. Human rights legislation is playing an important role in the administration of collective agreements. For example, addiction to alcohol or drugs is considered a disability under human rights legislation, requiring employers to reasonably accommodate employees in such circumstances.

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VIII. Discussion Questions 1. If you have worked in a unionized work setting, to what extent is the relationship between unions and employers collaborative and to what extent is it adversarial?

Class discussion could build upon examples of union-management cooperation and hostility.

Some of the variables which students could be asked to consider, if they do not raise these points on their own, include the union involved, the maturity of the relationship, and the economic situation. The discussion could explore whether some unions were more or less collaborative, whether the parties became more collaborative as the relationship matured, and whether the relationship was affected by external economic pressure such as the threat of job loss.

2. If you have not worked in a unionized environment, to what extent do you believe the relationship between unions and employers is collaborative and to what extent is it adversarial? What influences have shaped your opinions?

It is expected that students who do not have any experience with a union and are relying on reports in the media may perceive that the union-management relationship is always adversarial or more adversarial than is actually the case. For example, these individuals may not be aware of joint union-management committees and other collaborative efforts.

3. If you were a union member, would you want your union to have a philosophy of social unionism or business unionism? Explain.

Business unionism focuses on improving the compensation and working conditions for unionized employees through collective bargaining with the employer. In contrast, an alternative union philosophy known as social unionism was concerned with improving the compensation and working conditions of bargaining unit members, while also seeking broader economic and social change. This question demonstrates that individuals will have varying concepts of the purpose of unions based on their personal experiences and philosophies. Historically, unions have had a significant impact on social change.

4. Do you agree or disagree with the political-economy approach? Why? The political economy approach emphasizes a conflict of interest between employers and employees. Students will have different views on the extent to which employers and employees have a fundamental conflict of interest. The political economy approach emphasizes that labour relations are affected by the distribution of power in society. Some students may be more or less likely to accept the idea that the workplace is shaped by and is a reflection of the distribution of power in society.

IX.

Web Research

Go to the Canadian Labour Congress (CLC) website and identify two suggested advantages of union membership for Canadian employees. What, if any, implications would these advantages pose to HRM professionals? .

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Student responses will vary depending on their preconceptions of unions and their impact on the work environment. The CLC website provides insight to the history of unions and their benefits to all employees regardless of being unionized. The CLC website also describes the current initiatives they have prioritized which may be of interest to students.

Advantages listed on the website include: Job, economy, and environmental: HRM professionals would be required to manage jobs to the collective agreement Better pay and benefits: HRM professionals would be required to compensate employees to the collective agreement Workplace health and safety Trade and international affairs Retirement security: HRM professionals would be required to structure employees’ retirement plans to the collective agreement Social justice and democracy Gender equality: HRM professionals would be required to ensure employees experience gender equality Ending discrimination: HRM professionals would be required to ensure employees do not experience discrimination X. Vignette How Is Technology Impacting Unions Numerous environmental factors impact unions—demographics, politics, legislation, and information technology (IT). Just as IT dramatically impacts our personal lives with smartphones, cloud storage, and streaming music and entertainment, it also has profound impacts upon employees, their jobs, and their relationships with their employers. Unions have also been directly impacted by and impact IT within organizations.

Research has shown that unions do not prevent the adoption of IT in organizations. In fact, unions have been involved with its implementation and administration. Unions are also concerned with the impact of IT on employee health and safety in the workplace. Importantly, unions also work to ensure IT is applied reasonably and ethically toward employee workplace monitoring, particularly in light of the work-from-home policies organizations adopted during the COVID-19 pandemic. Additionally, unions work with organizations to ensure the increased productivity and reduced work hours required to complete tasks due to IT are reflected in the employees’ working conditions. .

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The hope is that union involvement with the adoption of IT in organizations will be beneficial and equitable. Unions could be positioned to ensure IT adoptions are efficient, less disruptive, and less costly. Unions can also monitor the environment to proactively plan for IT changes and these impacts on the workplace, the work employees do, and the collective agreements.

Ultimately, unions can foster work–life balance and reduce the employees’ and organizations’ carbon pollution to reduce climate change, with IT reducing times to complete tasks at work.

Source Stanford, Jim, and Kathy Bennett. Bargaining Tech: Strategies for Shaping Technological Change to Benefit Workers. Vancouver, BC: PowerShare, Centre for Future Work, June 2021. https://centreforfuturework.ca/wp-content/uploads/2021/06/Bargaining-Tech.pdf XI.

Case Incident: Could This Happen to Me?

Marlie and Johanna were cooling down after their weekly game of hockey at the local rink.

While several of their team members had already left for the pub, the two millennials struck up a conversation about their lives since the last game held earlier that month.

“You’ll never guess what happened to one of my co-employees earlier this week,” said Johanna.“I bet I can top whatever that was with my own story,” countered Marlie. “But you go first.” “Well, one of my co-employees, who has worked at the shop for four years, was called to the manager’s office just before the end of the shift on Friday.” Johanna went on to say that their colleague returned from the meeting and it was evident she had been crying. “She said she had just been told that their job was over and not to report for work next week!” exclaimed Johanna.“And there was no mention of why this decision was made or any details about their pay or benefits. Imagine!”

Marlie finished loading their hockey equipment into their bag. She looked up at Johanna and said, “That’s nothing! Since our last game, my supervisor was told by the organization’s HRM department that he was no longer going to be part of the department’s management team. They informed him that he would be returning to their former Tech III job along with a cut in pay.

They said this change would start as of the next pay period.” Johanna shook their head as she turned to their friend. “I seem to remember something from one of my business courses at college that makes it sound like both your boss and my friend have been given a raw deal. I think these people have more rights under the law. Don’t they?” Marlie said there were others at their shop who were feeling discouraged about a number of things like the lack of affordable benefits, a sense of fairness in getting internal job openings and a recent series of workplace injuries that had not been addressed.

They both left the rink on the way to join their team mates. Marlie and Johanna walked the five blocks to the pub in silence, both feeling somewhat vulnerable by the stories they had just shared. They each thought silently, “Could that happen to me?”

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1. What are some legal questions that would need to be answered regarding the changes in the terms and conditions of work for Johanna’s and Marlie’s work colleagues?

In Johanna’s case the typical legal questions would be the terms of their employment contracts, the length of employment, and what severance was provided. In Marlie’s case the typical legal questions would include the terms of their employment contracts and if they were willing to accept this change in duties and pay to their employment contract. If not, this could be viewed as a constructive dismissal.

2. After looking at the website for employment standards in your province or territory, state the amount of reasonable notice that is required in the situation described by Marlie in this case. What information is needed to determine your answer here?

Provinces and territories will vary in the amount of notice required in this situation. Factors typically include how long the employee has worked for the organization, and in some cases the size of the organization and number of employees being terminated.

3. Johanna’s manager may get legal advice to file a claim against their employer. Describe what this action is called and what would this individual be seeking in light of their announced job change.

This action is called a summary dismissal and it highlights one of the aspects of employment standards legislation and Common Law. Employers may terminate an employee with providing a reason as long as they provide the appropriate notice or pay in lieu of notice. Students should also be aware that Common Law will typically provide a greater notice period than employment standards legislation requires

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Chapter 3 The External Environment

CHAPTER 3 THE EXTERNAL ENVIRONMENT Preface In this chapter students explore the six aspects of the external environment—economic, technological, demographic, social, political and legal that impact labour relations. For example, an economic downturn might affect the political process by leading to the replacement of a fiscally conservative or right-wing government with a more left-leaning government. In turn, this may affect the legal environment because the newly elected government may be more or less likely to enact pro-business labour relations legislation.

Unions in Canada are key advocates for the protection not only of their members at work but whole of society regarding the rights afforded by laws and codes that apply in federal, provincial, or territorial jurisdictions. Such advocacy is regularly carried out by union local representatives in the day-to-day administration of collective agreements in organizations.

Unions also engage in public campaigns aimed at influencing social norms and beliefs. This wide-ranging involvement can influence change in both broader social and more localized employment environments.

Learning Objectives

3.1 3.2 3.3 3.4 3.5 3.6 3.7

Identify the environmental factors that affect labour relations.

Outline the possible effects of economic variables on employer and union objectives and power.

Describe the implications of technology for unions and employer.

Discuss how demographics may cause employers and unions to adjust their respective goals and strategies.

Explain the implications of the social environment for labour relations processes.

Explain the implications of the political environment for labour relations processes.

Outline the legal requirements that affect employers and unions.

Outline/Table of Contents

I. II. III. IV. V. VI. VII. VIII. IX. X. XI.

Economic Environment Government Economic Policy Globalization Technology Demographics Social Environment Political Environment Legal Environment Review Questions Discussion Questions Web Research Activities .

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XII. XIII.

Chapter 3 The External Environment

Vignette Case Incident Lecture Outline/Syllabus

I. Economic Environment The economic environment is critical to employers and unions. If the economy is in a recession, some industries and organizations will be adversely affected. Government policy to regulate the economy will also have its effects. For certain industries, such as air travel, economic factors may present unique threats or opportunities. This was never more apparent that during the COVID-19 pandemic in which air travel dramatically declined, causing WestJet for example to significantly reduce their service employee count by nearly 1,000 employees through layoffs, furloughs, unpaid leaves and reductions of hours. Finally, recent economic trends and issues such as free trade will be considered.

Macroeconomic Environment The macroeconomic environment refers to the state of the economy as a whole, including whether it is in a period of recession or growth and what are the rates of unemployment and inflation. The macroeconomic environment impacts the objectives and power of unions and employers, and in turn affects labour relations outcomes. In times of inflation, for example, unions will seek larger wage increases to protect the real incomes of employees.

Largely as a result of COVID-19, Canadian inflation has risen sharply, specifically Consumer Price Index (CPI), which measures inflation, increased by 3.4% annually in 2021 which is the fastest increase since 1991. Unfortunately, employee salaries have not kept pace with this increased inflation. This is expected to raise the wage expectations of employees and prompts unions to pursue increases in compensation for their members. Yet, most employers report only planning to offer modest salary increases, with 14% of employers planning to freeze employee salaries. Importantly, 2020 unionized employees’ wages rose 1.7 per cent, compared to 1.9 per cent in 2019, and decreasing to 1.6 per cent in 2021.

In a period of growth such as after COVID-19, the employer may wish to avoid the interruption of production caused by a strike, especially when competitors are continuing to operate. Periods of economic growth have thus been associated with higher rates of union organization and a higher incidence of strikes. Conversely, economic downturns cause unions to be more concerned with job security. Union bargaining demands will focus on issues such as increased severance payments and notice of layoffs. Management, seeking to reduce costs, will negotiate to avoid wage increases and may even demand total compensation concessions from the union.

The state of the economy might also affect public support for the demands of one of the parties, which in turn might impact its bargaining power. For example, a strike by a teachers’ union would more likely be supported by the public in a period of economic prosperity than in a recession. Public opinion during an economic downturn may reflect the sentiment that publicsector employees are “lucky to have a job” and should not be going on strike. A further .

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illustration is the global supply chain issues during the COVID-19 pandemic linked to weather, environmental regulations, fuel price increases, and human capital shortages.

The Canadian economy is open, meaning that we import many goods and are heavily dependent upon exports, especially to the United States. This makes our economy vulnerable to foreign trade practices, security concerns and fluctuations in the value of the Canadian dollar.

Canadian organizations that engage in cross-border trade and investments in the United States and international markets have been cautioned to be mindful of cross-border trade initiatives that can have a profound impact on their business strategies. These include the North American Free Trade Agreement (NAFTA), now known as the United States-Mexico-Canada Agreement (USMCA), the implementation of the Canada-European Union Comprehensive Economic and Trade Agreement (CETA) and the recent Comprehensive and Progressive Agreement for TransPacific Partnership (CPTPP). A lower-valued Canadian dollar causes increased domestic prices, which adversely affects the purchasing power of consumers. For example, certain commodities—such as gasoline—are priced in US dollars. So, when our dollar drops, people pay more at the pumps. At the same time, a lower dollar value benefits Canadian exporters, as goods are exchanged in US dollars and when repatriated, the American currency buys more Canadian dollars.

II. Government Economic Policy The government may attempt to regulate the economy, specifically unemployment and inflation, through monetary and fiscal policy. Fiscal policy refers to changes in government spending and taxation to regulate employment levels and inflation. The government can reduce taxes and increase spending to stimulate the economy and reduce unemployment. To counter the economic impacts of COVID-19, the federal government adopted a stimulus package referred to as CERB, or Canada Emergency Response Benefit with spending aimed at increasing economic activity and reducing unemployment for those employees and organizations impacted by COVID-19 Industry and Organizational-Level Demand Federal, provincial and territorial governments’ economic policies can also include direct and indirect support for a business sector or industry. The rationale for such financial assistance includes long-term benefits associated with research and development, business growth and employment stability. An example of such support in 2017 was the Ontario government’s investment of $4.9 million over three years to help small cideries and distilleries build their businesses. Unions have shown interest in such government aid, primarily to protect jobs in sectors affected by environmental forces such as globalization or technological innovation.

LABOUR MARKET CHANGES In a competitive non-union labour market, the interaction of the demand for labour by businesses and the supply of labour by individuals determines the level of employment and wages. Labour economics provides a model that refers to the demand and supply of labour that will help explain changes in wages and levels of employment.

Any factor that causes an increase in the demand for labour, such as an economic upturn, should lead to increased levels of employment and higher wages. Any factor that causes a decrease in .

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the demand for labour, such as an economic downturn, should lead to decreased levels of employment and lower wages. On the supply side, any factor that causes an increase in the supply of labour will tend to increase levels of employment and reduce wage levels. Conversely, factors causing a decrease in the supply of labour will tend to decrease the level of employment and increase wage levels. For example, a shortage of employees in some occupational groups, such as computer animators, has led to higher wages and signing bonuses for employees.

In the absence of unions, individual employees would have to accept the market wage, and it is likely to be low if workers do not have unique skills or abilities. Unions could be viewed as a way to avoid the effects of the labour market that would otherwise be imposed on individual employees. In a labour market without a union, many employees have little or no bargaining power when dealing with their employer. By joining a union, employees can increase their collective power regarding terms and conditions of work. Conversely, it is possible that the wage rates in the labour market might be pushed higher than the wages provided for in collective agreements, and this will pose a problem for both parties, especially employers.

III. Globlalization Globalization is the trend toward organizations obtaining resources and producing and selling their products anywhere in the world. It means that international boundaries have little significance for commerce. An organization may obtain resources in one country, produce in another country, and sell in many other different countries. Globalization also means that capital will move to wherever the highest return is provided. This is significant, because it means increased international competition. Organizations face pressure to reduce costs and prices and will locate production where costs are the lowest. When organizations consider labour costs, they have to take into account differences in productivity and not just the wage rate. There may be situations in which total labour costs are lower in Canada despite the fact that the Canadian wage rate is higher. The globalization of goods also depends on cheap oil prices. The cost of oil will rise as the world’s supply of oil diminishes. Notably, Alberta producers of oil were earning US $53.10 per barrel in December 2021 which is 42.3% higher than 2020. On average Alberta oil prices increased 104.7% in 2021 compared to 2020.

TRADE LIBERALIZATION is the trend to international agreements that reduce tariff barriers between countries.

The most significant such agreement for Canadian unions and employers is the United States-Mexico-Canada Agreement (USMCA), formerly known as the North American Free Trade Agreement (NAFTA) between Canada, the United States and Mexico, renegotiated by representatives of all three countries in September 2018.

Proponents of this trilateral trade agreement argued that the Canadian economy would benefit from access to markets in Mexico and the United States. Unions initially opposed it, fearing Canadian employers could not compete with the lower wages in Mexico and parts of the United States and would be forced out of business. Labour leaders also suspected that the former NAFTA deal would cause Canadian employers to relocate their operations to Mexico or the United States, resulting in plant closures and layoffs of union members. Yet, this free trade agreement has added to the economic pressure that some employers face and this in turn puts .

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pressure on unions. In firms for which the agreement poses a threat, the union and the employer will be concerned with job loss and possible plant closures. They will have to be more concerned with job security issues, including layoff notices, early retirement options, and jobsharing. In firms for which the agreement presents opportunities, there will be concerns relating to possible expansion and change. The union and employer will be concerned with increased adaptability, reclassification and the use of seniority as a criterion for promotions. It has also been suggested that such free trade agreements create an incentive for employers and unions to cooperate on workplace issues because disputes cannot be tolerated in the more competitive environment.

DEREGULATION refers to the change from a business regime in which the government regulates market entrants and prices to one in which the market is open to competition. At one time, some industries in Canada, such as airline and phone services, were regulated. There would be one producer, which charged rates approved by a government commission such as the Canadian Radio-television and Telecommunications Commission (CRTC). Deregulation has contributed to increased competitive pressures on former relatively high-wage regulated and publicly provided services that were somewhat removed from competitive pressures. This has led to labour market adjustments, including reductions in wages and employment in the former relatively high-wage regulated and publicly provided sectors.

Deregulation has put pressure on employers and unions. Businesses pay more attention to increasing efficiency and reducing costs. Job security becomes a more important issue for unions. CUPE represents approximately 27,400 members in the transportation sector, including employees in airlines, airports, ferries, port authorities, rail, roads and highways, as well as public and private transit systems. Regulatory changes made by Transport Canada allowed airlines to reduce the number of flight attendants required on board aircraft. The union argued that fewer flight attendants compromised the safety of both passengers and crew, increased flight attendants’ workload, eroding the quality of their work, and undermined job security.

Reducing the number of CUPE flight attendants required on aircraft was presented as a major health and safety concern. Reducing cabin crew affects all safety procedures—especially in emergency situations—and leads to greater workload and increased fatigue. Though transportation workers face formidable challenges from both employers and governments, CUPE continues to fight back to protect good wages, benefits and working conditions by defending collectively bargained rights. CUPE actively challenges regulations that jeopardize the safety and health of flight attendants and passengers, including a current legal challenge to the reduction in cabin crew, and a sector-wide campaign to press for greater protection against cosmic radiation and toxic fumes during flights. Recent settlements at Air Canada and Air Transat have maintained the safety-proven ratio of one flight attendant per forty passenger seats on some aircraft, even though Transport Canada now allows airlines to fly with fewer cabin crew.

NON-STANDARD WORK refers to work arrangements other than traditional full-time employment, including part-time and temporary work. Statistics Canada defines part-time employment as a job that involves less than 30 hours per week at their main or only job. in 2017, 12 percent of employees 25-54 years old worked part-time. A significant portion of this parttime work, 34 percent of employees in this age group reported working part-time for economic reasons such as they could not find work. Involuntary part-time work rises and falls with the .

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unemployment rate, an indication that people are forced into part-time work when economic conditions worsen. The vast majority of involuntary part-timers tend to be young persons and women aged 25 to 54. Both of these groups display seasonal patterns: the number of young, involuntary part-timers increases during the summer months when full-time hours are preferred.

Part-time employees pose a challenge for unions. Since part-time employees are generally paid lower wages and receive fewer benefits, employers have attempted to use non-union parttime employees to reduce costs. Unions have found it difficult to organize part-time employees for a number of reasons. Many individuals are younger and do not have experience with unionization. Many work in industries where unions have not had a presence and unionization is not the norm. Part-time employees who work in smaller organizations may have a stronger connection with the employer than those who work in a larger organization where alienation from the employer develops. Where worker turnover is higher, there is less commitment to the workplace. Many part-time employees are more likely to quit when they become dissatisfied and move to another job, so unionization is more difficult. Smaller part-time units are costlier for unions to organize.

Important to this discussion is the gig economy or those individuals working in temporary and flexible jobs most often without benefits. In turn, these employers have reduced costs from the lower hourly rates and lack of benefits. This landscape may well change as Uber has recently signed a collective agreement with United Food and Commercial Workers, one of the largest unions in Canada. This union will represent employees and advocate with Uber for increased job benefits as employees rather than independent contractors.

MERGERS Business mergers create a number of challenges when one or more of the merging organizations include unionized employees. Key among the many labour relations issues are representation rights of existing unions and the possibility of layoffs due to job redundancy. The 2017 merger of three large Catholic health care centres in Toronto point to the impact of this continuing corporate realignment of institutional health care services in Ontario.

At the time of the merger, the Canadian Union of Public Employees (CUPE) represented 1,600 employees within the hospital network, including nurses, administrative and clerical staff and various health care and support workers. The union sought to gain representation rights for 700 clerical positions at one of the newly merged institutions. The Ontario Labour Relations Board reviewed applications from involved unions, under the Public Sector Labour Relations Transitions Act, to reconfigure the various bargaining units across the three hospitals.

DOWNSIZING refers to the elimination of jobs for the purpose of improving efficiency and economic returns. Management rights clauses in collective agreements permit management to make job reduction decisions that affect union members. Specifically, downsizing was associated with higher grievances and increased absenteeism. Downsizing continues to be a frequent strategic move by corporate leaders in many Canadian business sectors that are unionized. In 2021, Bombardier announced 1,600 job losses across Canada as they close their Lear jet division. The International Association of Machinists and Aerospace Workers (IAMAW that represents many of the laid off, employees stated they will be working with Bombardier to reduce the impact of these layoffs. Downsizing puts unions on the defensive, as they may have to consider reducing their wage demands, or making other concessions, in an attempt to save jobs. .

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IV. Technology In terms of environmental challenges, technology refers to developments in knowledge occurring in the external marketplace by organizations such as Microsoft, Google, SAP and others that lead to new products, services, and changes in methods of production. Illustrations of its impact on daily life are everywhere: ultra-thin computer tablets; remote access to home security systems; and autonomous cars.

Technological innovation has important consequences for unions and employers. It will lead to concerns regarding job security because of the possibility of employees being replaced by labour-saving devices or facilitating the transfer of jobs to newly retrofitted plants, often located in lower wage regions. Therefore, unions face a dilemma: technological change may lead to increased productivity that can be the basis for wage increases, however at the same time it may lead to job losses. It might also give rise to concerns regarding ergonomics among other health and safety issues. Pay rates are another area for potential disagreement between the union and employer. Where technological change leads to jobs requiring fewer skills, employers will attempt to reclassify the job and reduce employee compensation. Where change leads to new jobs, or jobs requiring more knowledge and skills, unions will seek increased wages.

Advances in technology have meant that some employees are now able to work at home, an issue unions and employers will have to address in future collective bargaining. This became a substantial issue during the COVID-19 lockdown when employers sent their employees to work from home (WFH) to reduce the spread of the virus. This change of work location moved some employers to closely monitor their employees’ productivity. Metrics employers can use to monitor employees’ activity include employee monitoring software with dashboards reporting employee screen time, computer mouse activity, and screenshots of what's on an employee's screen at any given time.

Technological advances also allow more opportunities for employers to monitor employee activity. Approximately 40% of Canadian employers use global positioning systems (GPS) to track the location of employees It is important for employers to inform their employees they are monitoring their activities with this technology demonstrated with employee consent verbally or in writing. Technology will also lead to privacy in the workplace becoming a labour– management issue.

The effect of information technology, including the Internet and intranets, is of interest to unions. Unions can use websites to deliver information to employees they wish to organize and provide services to members. Also, many employers have developed intranets to provide information and communicate with employees. These may pose a threat to unions because technology allows employers to develop more direct communication with employees. Intranets might be used to establish discussion groups and other means to foster closer identification with the organization and weaken the link to a union. It is also argued that the Internet and the Web pose a threat to the traditional relationship between the union and its members. In order to survive, unions will have to do more than simply provide services to their members.

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V. Demographics Demographics may be described as the study of a population by a certain characteristic such as age, gender, race or educational achievement. Studies of such population characteristics have long been used by government agencies, marketing organizations and boards of education planners. These factors are outside the control of both employers and unions and, indeed, cause both parties to adjust goals and strategies over time.

AGING WORKFORCE The workforce is aging, and this may have significance for unions and employers. As the baby boomers (those born between 1947 and 1966) retire, there may be labour shortages, which will put upward pressure on wages and make it difficult for employers to recruit some types of employees. Older workers have preferences that may affect union demands and negotiations. They may be more concerned with increasing pensions than with current wage increases. They may also be more concerned with job security as they approach retirement. Some employees, instead of working full-time until retirement, may wish to have the opportunity to work less in the final years of their work life. Others may wish to extend their careers beyond the traditional retirement age.

YOUNGER EMPLOYEES In 2021, there were 2.4 million youths aged 15 to 24 in the population and 7.1 million people aged 45 to 64, meaning there is a widening gap between the number of younger people entering the labour force and the number of people preparing to exit it. With this data, it becomes evident that there are not as many young employees entering the workforce as there will be older employees leaving work. The multi-generation workforce poses challenges to both employers and unions due to differing employee cohort interests related to key bargaining demands as well as the perceived focus of union energies on workplace versus wider social issues.

DIVERSITY The Employment Equity Act applies to federal government and federally regulated employers, the report is indicative of trends for four demographic groups identified in the 1984 Royal Commission on Equality in Employment as being under-represented in the Canadian workforce. The representation of members of visible minorities continued to exceed the labour market availability for designated groups. The overall representation of three of the four designated groups—Indigenous peoples, persons with disabilities and members of visible minorities has remained unchanged in 2021. Specifically, women, Indigenous peoples and persons with disabilities remained about the same between 2018 and 2019, with only visible minorities employment increased by +0.6%.

Human rights legislation in Canada holds labour unions accountable to take action to protect against discrimination in workplaces. It is important to recognize that equity seeking groups still experience systemic disadvantages.

FEMALE PARTICIPATION From 2017 to 2021, female participation in Canada’s unions has remained constant at 33.2% of female employees members of a union.

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VI. Social Environment The social environment refers to the values and beliefs of Canadians relating to unions and employers. Some Canadians may be more supportive of unions and collective bargaining than others. Values and beliefs are important because they might affect the propensity of employees to unionize as well as the bargaining power of the union and employer. An individual who disapproves of unions is less likely to join one. In some labour disputes, the party that has the support of the public is in a stronger position. The values and beliefs of Canadians in general are important because they will affect employment and labour relations legislation. In the United States, some states have passed right-to-work laws, which prohibit the mandatory deduction of union dues. In recent years, while certain Canadian federal and provincial members of parliament have advocated for right-to-work legislation options, it does not appear likely that Canadians are prepared to support such laws.

Most of the Canadian population approves of unions generally; however, there is a negative relationship between approval of unions and perceived union power. As perceived union power increases, public support for unions declines. Accordingly, people do not want unions to be too strong; and if it is perceived that union power is increasing, union approval goes down.

VII. Political Environment The political environment refers to the Canadian political system and its effect on labour relations. The political environment in turn has a significant impact on the legislation that regulates unions and employers. A critical feature of the Canadian political environment is the divided jurisdiction of the federal, provincial, and territorial governments in employment and labour relations matters.

Divided Jurisdiction The Constitution Act provides a division of powers or authority between the federal, provincial, and territorial governments. Most issues that could be the subject of legislation are under the authority of either the federal, provincial, or territorial governments. For example, banking and criminal law are within the jurisdiction of the federal government, and education is a provincial and territorial matter. For employment and labour relations issues, there is divided jurisdiction: the federal government has the authority to pass legislation regulating some employers and employees, and the province and territories have jurisdiction over other workplaces. The federal government has jurisdiction over approximately 10 percent of the labour force, including federal government departments, interprovincial transport, banking and broadcasting. The provinces and territories have jurisdiction over 90 percent of the labour force, including the manufacturing, retail, service and construction sectors. Accordingly, a distinction must be drawn between federally regulated employers, who are subject to federal legislation, and provincially and territorially regulated employers, who are subject to the legislation of each province or territory in which they conduct business. In the United States, labour legislation is under the jurisdiction of the federal government.

Whenever legislation is referred to, the preliminary question that must be asked is whether it is the federal or the provincial or territorial legislation that is relevant. For example, suppose a .

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question arose about how much notice, if any, a union must give before it goes on strike. If the employer is an airline, it is federally regulated and the relevant legislation is the Canada Labour Code, which provides for 72 hours’ notice. If the employer is a retail store, it is provincially or territorially regulated, and the answer to the question will depend upon which province or territory the store is located in. If the store is in Nova Scotia, the relevant legislation is the Trade Union Act, which requires 48 hours’ notice to be given to the Minister of Labour. If the store is located in Ontario, the relevant legislation is the Labour Relations Act, which does not require notice prior to the commencement of a strike. Similarly, every jurisdiction has its own employment standards legislation, and there might be 13 different rules on the same matter, such as vacation entitlement.

The divided jurisdiction in Canadian employment and labour relations matters has several implications for employers, unions and the labour relations system. Some of these implications might be viewed as advantages and others as potential drawbacks. Employers who are provincially or territorially regulated and carry on business in more than one province or territory will have to deal with different laws in each province or territory. This may cause confusion and increase costs. Depending on the employees they represent, unions also must know about the federal legislation or the relevant legislation in each province or territory. The divided jurisdiction has allowed provinces and territories to manage employment and labour issues differently and has provided an opportunity for experimentation. It has been observed that the Canadian parliamentary system and the presence of a social democratic party supporting labour have historically led to legislation being passed that is favourable to unions. The Canadian Commonwealth Federation (CCF), a federal political party supporting labour, was established in 1932. The New Democratic Party, successor to the CCF, continues to support labour, although political allegiances among unions have tended to sway at election times among political parties and their labour platforms. In Canada, it has been noted that the provinces and territories have distinct political cultures. Alberta is the most conservative province, and that labour relations legislation in that province is generally less favourable to unions. In some other provinces, the NDP has formed a government and enacted legislation more favourable to unions. Although the Canadian parliamentary system and the division of authority between the federal, provincial, and territorial governments make it easier for reforms to be made, the process can work in reverse. That is, it is possible for a pro-business government to be elected in a province or territory, leading to changes in labour policy that are less favourable to unions. The situation in Ontario illustrates this. In 2017, the Liberal government passed labour reform referred to as The Fair Workplaces, Better Jobs Act, or Bill 148. Bill 148 provided Ontario employees two paid, job-protected emergency leave days for all employees, increased holiday entitlement, mandated equal pay for casual and part-time employees doing the same job as full-time employees, improved scheduling protections and boosted protections for temp agency employees. However, in the 2018 election, a Progressive Conservative government came to power and table Bill 47 the Making Ontario Open for Business Act, which largely reversed this law. Bill 47 includes a major repeal of Bill 148 and its prior changes to the Employment Standards Act, 2000 and Labour Relations Act, 1995. In particular, Bill 47 repealed the right for unions to obtain a list of employees from an employer which may be part of a certification drive; remedial certification by the Ontario Labour Relations Board in the event of an unfair labour practice during the certification application or vote process permitting option of a re-vote, and card-based union certification process in the building services, home care, community services and temp-help industries. .

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VIII. Legal Environment The legal environment is critical to Canadian labour relations. Employment standards legislation mandates minimum terms of employment dealing with vacations, public holidays and wages. These minimums provide a minimum requirement for the negotiation of terms and conditions of employment in the collective agreements. Any contract terms relating to issues covered by employment standards legislation must provide at least the minimum rights provided in the legislation. If contract language does not refer to an issue covered by employment standards legislation, employees are entitled to the statutory minimum. For example, if the collective agreement did not mention parental leave, employees would still be entitled to the leave provided in the employment standards legislation that covered the workplace. Human rights legislation prohibits discrimination and harassment and imposes a duty to accommodate.

This duty may require unions and employers to make exceptions to the terms and conditions of work in the course of administration of a collective agreement. For example, management may have to agree to a variation on scheduling to accommodate a union employee with a specific medical condition. A collective agreement cannot include contract terms that violate human rights legislation. Labour relations legislation regulates the relationship between the union representing employees and the employer. It dictates who can unionize, the process that must be followed to unionize, rules regarding the negotiation and administration of the collective agreement, and when there can be a strike or lockout. Again, the parties to the agreement must comply with the relevant labour relations legislation. For example, all labour relations statutes provide that a collective agreement must have a term of at least one year. The negotiated agreement may be longer but not less than 12 months. It must also be noted that it is not possible to contract out or the terms and conditions of work for any employee must be at least equal to guarantees provided to employees by relevant legislation linked to the employment relationship of employment standards, human rights and labour relations legislation in the collective agreement. In this context, “contracting out” In addition to employment standards, human rights and labour relations legislation, there are statutes that affect the parties in areas such as health and safety, pay equity, pensions and workers’ compensation.

Human Rights Legislation All Canadian jurisdictions have their own human rights legislation. This legislation and the Canadian Charter of Rights and Freedoms are the basis for the law relating to discrimination in each jurisdiction. Human rights law is shaped by the decisions of courts and arbitrators who interpret legislation and the Charter. A human rights commission is responsible for the enforcement of the legislation in all jurisdictions except British Columbia and Ontario, which each has a tribunal for this purpose. The Commission websites are good sources of information relating to human rights, and include guides relating to the application of the legislation.

DISCRIMINATION Federal, provincial, and territorial human rights legislation in each jurisdiction in Canada set out prohibited grounds of discrimination. While there are a number of prohibited grounds that apply to all of these jurisdictions, certain protections are not assured in every part of Canada. For example, discrimination on the basis of age, marital status, physical or mental disability and sexual orientation are found in federal and human rights laws throughout .

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Canada. Certain demographic factors such as family status, pardoned convictions and gender identity do not fall within protected grounds in several Canadian jurisdictions.

An individual or group is discriminated against if they are treated differently on the basis of one of the grounds of discrimination covered in the relevant human rights code. It is important to note that if an individual is treated differently or even unfairly, but the basis for the differential treatment is not one of the grounds of discrimination provided in the relevant human rights legislation, there has been no discrimination. For example, if an employer does not hire an applicant because the employer perceives that they do not like the applicant, and the employer’s decision has not been influenced by one of the prohibited grounds of discrimination such as race, gender or religion, there has been no discrimination. This is subject to the provisions of the Charter, which are discussed in this section. The Charter might protect an individual or group from differential treatment even if the basis for the treatment is not listed as one of the prohibited grounds of discrimination. References to federal, territorial and provincial human rights commission websites are seen in the margin.

FORMS OF DISCRIMINATION The two forms of discrimination that require clarification are direct discrimination and indirect discrimination. Direct discrimination refers to a rule or conduct that is discriminatory on its face; meaning that it is deliberate or intentional. For example, a manager’s refusal to promote an employee because of their gender or because they were over age 45 would be direct discrimination. Indirect discrimination, sometimes referred to as systemic discrimination involves a rule or requirement that does not appear to discriminate; however, the requirement has an adverse impact on an individual or group protected by human rights legislation. For example, a selection screening procedure, such as language comprehension test, may have an adverse impact on certain job applicants even though the procedure was developed in good faith and was job-related. The issue is whether the requirement has an adverse impact.

In line with the human rights legislation, a duty to DUTY TO ACCOMMODATE accommodate requires the employer to take steps to prevent people from being adversely affected by workplace requirements or characteristics on the basis of a prohibited ground of discrimination. Requirements or characteristics that might have an adverse impact include rules, work standards, the terms of a collective agreement or the physical layout of the workplace. For example, consider a person with a disability who is confined to a wheelchair. Human rights legislation protects people with disabilities from discrimination. Prevention of an adverse effect involves reasonable accommodation on the part of the employer, such as installation of a wheelchair ramp or a work-space with a special desk.

Some seemingly routine workplace requirements may give rise to a duty to accommodate. Requiring all employees to start work at 7 a.m. might disadvantage people required to take forms of public transportation, such as HandiVans, that are unavailable so early. Here the duty to accommodate might involve a change in work hours, such as flex-scheduling, for such employees.

Although the primary obligation to accommodate lies with the employer, accommodation is a multi-party responsibility. Unions, other employees and the employee seeking accommodation all have obligations under the duty to accommodate. The case incident at the end of this chapter outlines this mutual obligation on the part of the involved parties. .

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Although the duty to accommodate commonly arises in connection with disability, it might arise in connection with other grounds of discrimination, including religion or family status. There is a limit to the measures which the employer is expected to take in meeting the duty to accommodate. Employers are legally required to provide reasonable accommodation up to the point of undue hardship.

Undue hardship is a difficulty exceeding that which an employer is required to endure when accommodating the needs of a person or a protected group under a human rights code.

Although the cost of accommodation is a factor, an employer attempting to establish cost as the basis of undue hardship must present real financial evidence, not just vague references to increased costs. Moreover, employers are expected to assume significant costs; to constitute undue hardship, the costs involved would have to threaten the viability of the organization.

Thus, the size and financial health of the organization would be factors. A small organization that was in financial crisis might be able to establish undue hardship where other organizations might not. The size of the employer is also a factor; as larger employers are more likely to have a larger pool of replacement workers or alternative jobs. The interchangeability of the workforce and facilities relates to the flexibility in the operations of the employer. Where there are more employees who have the ability to do various jobs, it will be easier to accommodate through measures such as rescheduling, lighter workloads or the modification of job duties.

The extent to which an accommodation poses a safety risk to the employee seeking accommodation or other employees is also a factor. Although employers have an obligation to provide a safe workplace, they cannot rely on that obligation to avoid accommodation. Within accommodation, employers are expected to tolerate some risk in the workplace and allow the employee seeking accommodation to assume some risk as well. In Kearsley v. The Corporation of the City of St. Catharines, the applicant for a firefighter position was denied a job because of a heart condition identified in a medical screening test. Evidence at trial showed that this heart condition posed a very small risk of stroke. A human rights complaint was upheld, and the municipality was ordered to hire Mr. Kearsley, reimburse him for monetary losses associated with not originally employing him and to also pay him $4,000 in punitive damages due to discrimination.i The extent to which a safety risk will be tolerated as part of an accommodation is not yet clear. It is possible that the provisions of a collective agreement such as seniority or scheduling might also pose a problem when accommodating employees. The collective agreement might provide that employees be given a preference in shifts on the basis of seniority; however, an employee with less seniority might require a particular shift as part of an accommodation.

Employee morale has been cited as a factor in a leading case. The objections of employees would have to relate to real hardship such as job loss or excessively onerous duties before they would be viewed as an undue hardship. An employer will not be allowed to claim that complaints from other employees impose an undue hardship unless the complaints are substantial and real. This means that employers should educate employees regarding the duty to accommodate. Some unions have established joint union–management committees to provide many of these supports when dealing with human rights cases involving reasonable accommodation of bargaining unit members. .

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IX. Review Questions 1.

What are two ways in which the macroeconomic environment affects unions and employers?

The macroeconomic environment affects the objectives and bargaining power of the union and the employer. When inflation increases, unions will seek to protect the real wages of employees by pursuing higher wage increases and cost of living provisions in collective agreements. In a recession or economic downturn, unions will seek collective agreement provisions to protect job security such as notice of layoff provisions, retraining and transfers, and severance payments. In response to union demands for wage increases and/or cost of living provisions employers will wish to avoid providing wage increases which make them less competitive and reduce profits.

Employers will also want to avoid contract terms that reduce flexibility such as provisions requiring retraining. In an economic downturn employers may seek to limit wage increases or seek concessions from the union.

The overall economic environment affects the bargaining power of the union. Employees are more likely to support a strike in a period of economic growth when alternative jobs are available. A period of economic growth may also suggest to employees that the employer has the ability to increase compensation. It is possible that the public is more likely to support a strike in a time of economic growth when it appears that the employer is profitable and has the ability to pay. In contrast, some may think that employees should be happy they have a job in an economic downturn.

2.

How might possible bargaining priorities differ for the following employee groups: younger employees, female employees, and visible minorities?

Younger employees prefer increases in wages as opposed to deferred benefits such as pensions; they may also be concerned with family-work balance. Older employees will be concerned with pensions, health benefits, and retirement provisions. Younger employees may bear a disproportionate responsibility for childcare they may be more concerned with issues such as flextime, and day care. Female and visible minority employees may also be more concerned with harassment issues, pay equity and employment equity.

3.

Describe two economic trends or issues that might affect labour relations.

1) Labour Market Changes. In a non-union environment to principle of supply and demand will dictate the wages of employees. Any factor that causes a decrease in the demand for labour, such as an economic downturn, should lead to decreased levels of employment and lower wages. On the supply side, any factor that causes an increase in the supply of labour will tend to increase levels of employment and reduce wage levels. Conversely, factors causing a decrease in the supply of labour will tend to decrease the level of employment and increase wage levels. The presence of a union can increase the collective power of employees when dealing with a downturn of wages.

2) Globalization. Globalization is the trend toward firms obtaining resources and producing and selling their products anywhere in the world. It means that international boundaries have .

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little significance for commerce. A company may obtain resources in one country, produce in another country, and sell in many other different countries. Globalization also means that capital will move to wherever the highest return is provided. This is significant, because it means increased international competition.

3) Trade Liberalization. Trade liberalization is the trend to international agreements that reduce tariff barriers between countries. The most significant such agreement for Canadian unions and employers is the United States-Mexico-Canada Agreement (USMCA), formerly known as the North American Free Trade Agreement (NAFTA) between Canada, the United States and Mexico, renegotiated by representatives of all three countries in September 2018.

4.

Explain how government economic policy might impact unions and employers.

Deregulation leads to increased competitive pressures that may affect the employer's ability to pay. The concessions by unions representing Air Canada employees illustrate this situation.

5.

What is a current example of technological change that poses a threat or an opportunity to union–management relationships?

1) Job Security. Technological change will include innovations that allow employers to reduce the number of employees required by replacing employees with capital equipment.

2) Compensation. Technological change will affect the knowledge, skills, abilities, effort required, and working conditions which in turn affect compensation. Where job skill and effort requirements are reduced because of technological change employers may seek to reduce compensation. Where technological change involves the use of more skills, such as computer skills, unions may seek wage increases.

3) Health and Safety. Changes in methods of production may involve reductions in health and safety risks or lead to new health and safety concerns. Using robots in areas where there are fumes and other dangers reduces health and safety risks. However, new compounds and processes could expose employees to previously unknown risks.

4) Monitoring Employees. Technology allows employers to monitor employee activity. This could lead to disputes relating to privacy and standards of production. For example, a reservation clerk might be expected to handle a call within a specified period of time.

6.

What is the social environment and why is it important to labour relations?

The social environment refers to the values of Canadians relating to work, unions, and employers. The social environment is linked to the political and legal environment because governments will not be able to pass legislation that does not comply with the basic values held

by Canadians. For example, right to work laws that have been passed in some states in the U.S. have not been enacted in Canada. Values and attitudes which are particularly relevant to labour relations include the acceptance or rejection of unions as legitimate representatives of employees, whether unions benefit employees, whether employees should. .

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7.

What do the terms federally regulated employer and provincially/territorial regulated employer mean, and why is the distinction important?

The provinces and territories have the jurisdiction or authority to pass legislation regulating employment matters for the majority of Canadian employers. These employers are provincially or territorially regulated. Provincially or territorially regulated employers include manufacturing, retail, education, services and construction organizations. The federal government has the authority to pass legislation regulating employment issues for approximately 10 percent of the Canadian labour force. Federally regulated employers include firms in broadcasting, interprovincial transport, and banking. The distinction between provincially and territorial regulated and federally regulated employers is important because there is separate labour relations and employment standards legislation that governs unions and employers in each jurisdiction. The rules regarding a union obtaining the right to represent employees, or other labour relations issues such as the right to strike, vary across jurisdictions. Similarly, employment standards such as minimum vacation can vary between jurisdictions.

8.

Provide examples from the workplace that distinguish among labour relations legislation, human rights codes, and employment standards laws in Canada.

Labour relations legislation regulates the union-management relationship. It covers issues such as how a union gains bargaining rights, how an employer can respond to a union organizing campaign, and the negotiation of a collective agreement.

Human rights legislation covers both union and non-union workplaces and it prohibits discrimination and harassment. The critical duty to accommodate flows from human rights legislation.

Employment standards legislation covers both union and non-union workplaces and it sets out minimum terms of employment including vacations, parental leave, and the regulation of hours of work.

9.

Use separate examples to distinguish between direct and indirect discrimination that may occur in a unionized work setting.

Direct discrimination is intentional or known such as refusing to hire a person because of their race, religion or gender.

Indirect discrimination is unintentional. It arises where a rule or requirement that appears neutral has an adverse impact on a person protected by human rights legislation. For example a rule providing that all individuals must be 5' 10" or taller to be hired has an adverse impact on women because this rule will cut out more female applicants. As a result of recent court decisions, the distinction between direct and indirect discrimination is no longer a critical issue.

The key point to note is that discrimination can arise unintentionally or even where there is the best of intentions. For example, a rule requiring all employees to work every third Saturday appears to be neutral and fair. However, this rule could be discriminatory for employees who belong to a religion that has Saturday has a religious day of observance. Note that the issue of .

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whether or not a discriminatory rule can be defended on the basis that it is a BFOQ is a separate matter.

10.

Explain and provide an example of the concept of a bona fide occupational requirement (BFOR).

A BFOR is a discriminatory rule or requirement that an employer is allowed to use because it can be established that all three requirements set out in the Meiorin case can be met. That is, the employer can show that: 1) the standard was adopted for a purpose rationally connected to the performance of the job; 2) the rule or requirement was adopted in an honest and good-faith belief that it was necessary to the fulfillment of a legitimate work-related purpose; and 3) the standard is reasonably necessary to the accomplishment of that legitimate work- related purpose. To show that the standard is reasonably necessary, it must be demonstrated that it is impossible to accommodate individual employees sharing the characteristics of the claimant without imposing undue hardship upon the employer.

An example of a BFOR would be a requirement that truck drivers have the vision required to maintain a license. Note that as part of the duty to accommodate the employer would have to establish that there was no other suitable work for a driver who lost their vision.

11.

Explain what the duty to accommodate means and provide an example of an employer meeting this duty.

The duty to accommodate means that measures to prevent people from being adversely affected by workplace requirements or characteristics on the basis of a prohibited ground of discrimination will have to be adopted if they do not impose an undue hardship. It should be noted that if there is no discrimination there is no duty to accommodate. Examples of an employer meeting this duty are allowing an employee time off to observe a religious day of observance or reducing an employee’s hours while they recover from an injury.

12.

Identify a labour relations issue that has been or might be affected by the Charter of Rights and Freedoms. a) Protection against discrimination (expansion of human rights protection). b) Protection of collective bargaining. Governments will no longer be able to pass legislation that nullifies collective agreements unless it can be established that the legislation is saved by section 1 or the notwithstanding clause is invoked. c) Union dues. The compulsory deduction of union dues has withstood a Charter challenge. d) Right to organize. In the future the courts may rule that legislation that denies some employees the right to organize is unconstitutional.

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X. Discussion Questions 1. Describe one consequence to union-management relations regarding a manufacturing company’s decision to globalize its operations beyond current facilities in British Columbia and Ontario.

Typically, these decisions will have a negative impact on union-management relations. As companies seek to reduce costs it may mean a movement or creation of jobs to another country.

Unions will seek job security for its members.

2. Explain how information technology poses a threat to unions?

Information technology could be a threat to unions for a number of reasons. Technology makes it easier for employers to communicate with and address employee concerns. This could threaten the union's role as the representative of employees or help an employer respond to employee issues so that a union does not appear necessary. For example, employers could make use of e-mail to survey employee concerns and preferences. Some information technology could eliminate jobs. For example, ATM machines replace bank tellers. Information technology could reduce the skills required for some jobs and lead to employers seeking to reduce or freeze compensation.

3. A collective agreement confirmed that there would be no discrimination based on gender and the union and the employer would comply with human rights legislation. Some employees covered by the collective agreement were provided with paid parking on a random basis and others were not. The cost of parking at the workplace or nearby was $1050 per month. A group of employees who were not provided with parking, all of whom were women, filed a grievance alleging the employer had discriminated against them. If you were a labour relations officer for the employer, how would you respond to this grievance?

The union has claimed that there is discrimination in this situation. The response would be that there is no discrimination because there has been no differential treatment based upon one of the grounds of discrimination referred to in human rights legislation. Both male and female employees were denied paid parking – the fact that a group consisting of only female employees has filed a complaint does not make this discrimination. Refer to Bainbridge v. the Queen, New Brunswick Court of Appeal 2005 CLLC 220-034.

4. Hodges worked as a child and youth support worker for an association that operated a shelter for women and children. At one time Hodges worked from 8 a.m. to 2:30 p.m.

Hodges’ son required special attention because he had a major psychiatric disorder and this work schedule allowed her to care for him after school. More children were at the shelter after school, and in order to service them. The employer changed Hodges’ hours of work requiring her to work at 11:30am and work until 6:00 p.m. This meant that she could no longer care for her son. Is there any basis on which the union can challenge the employer’s change in work hours? What is the legal obligation of the employer and what outcome would you expect in this situation? .

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This question is based on Health Sciences Association of British Columbia v. Campbell River and North Island Transition Society et al., 127 LAC (4th) 1. This case was a judicial review of an arbitrator’s decision that there was no discrimination.

The union could claim that there is discrimination on the basis of family status.

If there is discrimination the employer has a duty to accommodate to the point of undue hardship. It was noted that not every conflict between a job and parental duties will be the basis for a discrimination claim. The court stated: “The vast majority of cases in which there was a conflict between a work requirement and a family obligation would not ground a prima facie case of discrimination. However, a prima facie case would be made out when a change in a term or condition of employment resulted in serious interference with a substantial parental or other family duty or obligation. In this case, that test had been satisfied. The griever’s son had a major psychiatric disorder, and her attendance to his needs after school was regarded as critical. The change in her hours of work represented a serious interference with the discharge of her parental obligation. The arbitrator erred in not finding a prima facie case of discrimination on the basis of family status.”

In the Health Sciences Association case the court referred the case back to the arbitrator to determine if the employer had met its obligation to accommodate the employee.

The key point that this question is illustrating is that the duty to accommodate only arises when it has been established that there is discrimination.

5. How might certain specific measure to accommodate be an undue hardship for one employer and not for another?

Yes, it is possible that measures to accommodate could be an undue hardship for one employer and the same measures would not be an undue hardship for another employer. Although it is difficult to establish cost as the basis for undue hardship, it is more likely that a small employer, or an employer in financial difficulty, would be able to establish cost as an undue hardship. The size of the employer including the number of employees could be a factor. A larger employer, who has more potential replacement employees, would have less difficulty allowing time off to accommodate an employee.

XI. Web Research 1. Go to a website for the Canadian Labour Congress, or a provincial or territorialfederation of labour such as the Ontario Federation of Labour. Find and briefly explain a current initiative that the CLC or a labour federation is involved with regarding the impact of globalization or international trade agreements on Canadian unions.

The issues identified by students will vary depending on the province or territory and the current political or social justice issues in play at the time. Students should be able to easily identify what these issues are, either from a global, federal provincial, or territorial levels. Unions also .

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tend to see diversity as a social justice issue. Typically, these initiatives are in the union’s best interest include: these issues also affect the union from a legal perspective, they demonstrate that they have the public and members best interest in mind, and as a recruiting tool for those interested in joining a union.

2. Go to a website for a national, provincial, or territorial union in Canada and look for an initiative this union is taking regarding Indigenous people, female, visible minorities, LGBTQ or aging members. Discuss why such an initiative is in the union’s interests.

Unions have historically and currently assume the role of social justice and equity, therefore recognizing the challenges groups face and working to correct these challenges support this role.

XII. Vignette Do Unions Impact Organizational Strategy?

Unions and organizations have often assumed the roles of oppositional business partners. Other times unions and organizational leaders form a cooperative partnership. Current thought suggests that unions should assume a more dynamic role with organizational strategy development-a new role of unions. Union-management strategic partnerships may support the organization’s competitiveness and protect the employees’ investments in the organization.

Unions could participate in designing organizational strategy and assigning resources to achieve these goals. Unions are well positioned to participate in this planning as they hold considerable organizational knowledge, working directly with the employees and organizational operations.

Following this cooperative strategic planning, the union and organizational negotiations could less adversarial and more collaborative as these two business partners designed the strategy together. Additionally, unions can both observe and monitor organizational strategy and operations for compliance with legislation, the collective agreement, and ethical conduct.

Practically, unions can support employee-employer communications surrounding organizational policies and practices. Additionally, unions have been shown to monitor management’s implementation of HRM practices at times seeking short-term gains and improving employee outcomes within HRM policies and practices.

XIII. Case Incident: A Case of Union Discrimination?

This case demonstrates the far-reaching effect of discrimination in the administration of the collective agreement. This decision provided that the union and the company have a duty to accommodate an employee when the collective agreement becomes a barrier to their requirement to accommodate an employee.

1. What form of discrimination is seen in the case?

Indirect discrimination (sometimes referred to as systemic discrimination) involves a rule or requirement that does not appear to discriminate; however, the requirement has an adverse impact on an individual or group protected by human rights legislation. In this case, the union .

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and the company agreed to certain seniority provisions in the collective agreement in good faith and for job related reasons. This issue is whether the requirement has an adverse impact.

2. What was the “protected ground” under the Code revealed in Mr. Bubb-Clarke’s circumstances?

The protect ground in this case was that Mr. Bubb-Clarke was discriminated against based on his disability.

3. Based on the case facts, what argument did ATU advance for its inability to change what had already been done for Mr. Bubb-Clarke?

ATU made the argument that the seniority provisions of the collective agreement was unambiguous, made in good faith, and did not discriminate against Mr. Clarke. They claimed that they did not have the authority to override the provisions of the collective agreement.

4. As the labour relations manager for the TTC, after initially hearing of Bubb-Clarke’s medical diagnosis and also understanding the collective agreement language related to seniority transfer, what steps would you have taken to avoid this situation? Explain why?

As the labour relations manager you should take the following steps: a) Obtain medical confirmation that the employees medical condition made meant he could no longer drive for the TTC. b) Meet with the union representatives to discuss the facts of the situation with the intent of obtaining written agreement with the union that the employees full seniority will be placed in the new occupational group. c) In the event the union does not agree, transfer the employee and his seniority to the new group and proceed with any potential grievance.

These steps will ensure the company has done all things reasonable to accommodate the employees disability and limit the liability in the event of a human rights complaint.

Board of Inquiry, Ontario Human Rights Code, Full text of “Antony Kearsley v. Corporation of the City of St. Catharines,” Board of Inquiry, April 2002 BOI 02-005, accessed February 24, 2018. i

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CHAPTER 4 ORGANIZATIONAL STRATEGY Preface In this chapter students explore employer labour relations strategies. In particular, what nonunion organizations can do to meet the expectations of today’s employees. With approximately one in three Canadians being unionized and further 56% of Canadians hold positive views of unions, and more Canadians oppose right to work legislation, unions are a very important organizational business partner and member of Canadian communities.

Learning Objectives 4.1 4.2 4.3 4.4

Explain organizational strategy and the processes or methods used to achieve those objectives Outline alternative labour relations strategies Identify factors affecting an employer’s labour relations strategy Describe the features of high-performance work systems, and explain their implications for labour relations Outline/Table of Contents

I. Management Strategies II. Labour Relations Strategy III. Possible Employer Strategies IV. Strategies of Canadian Employers V. HRM Strategy VI. Employee Relations Programs VII. Review Questions VIII. Discussion Questions IX. Web research X. Vignette XI. Case Incident Lecture Outline/Syllabus I.

Management Strategies

To understand the strategies, and supporting policies and practices that employers could adopt, it is necessary to consider the objectives those policies and practices are trying to achieve. In the private sector, the conventional wisdom is that management has two core objectives: the maximization of profit and maintaining control over the business. In the public and non-profit sectors, employers seek to balance operating budgets, comply with government policy initiatives, and meet demands for public services at reasonable costs. .

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Efficiency To maximize profits, private-sector employers will seek to increase efficiency or productivity.

Efficiency means that goods and services are produced with the lowest possible amount of capital, labour, energy, and material resources. Productivity may be defined as the ratio of an organization’s outputs (goods or services) by its inputs (people, capital, materials, energy, etc.).

Productivity growth and productivity levels are both important.

When the HRM professional is approached about organizational productivity concerns their attention may turn to any or all of the three variables of Productivity from a human resources management perspective may be expressed as a function of three variables: ability, motivation and environment or P = f ( a m ⋅ e .).

Output may be declining due to the employee’s reduced ability to perform job duties. The focus here is can the employee perform the assigned work. Reduced employee performance may be due to a skill, knowledge or ability (KSA) shortcoming. Alternately, it may also be due to physical or emotional factors that prevent the employee from performing at an optimal level. In relation to motivation, the focus is will the employee perform the assigned work? Stress can be caused by workplace or external factors, lack of job performance feedback and interpersonal relationships with supervisors or peers can all reduce employee motivation to work. The employee may have the required abilities and may be motivated to perform their job, but factors in the environment may interfere with work output. Additionally, environmental factors may include poorly maintained equipment integral to the performance of assigned duties, a toxic work setting caused by harassment or bullying, along with other variables such as inventory supply and work team dynamics.

Strategies employers have used to foster productivity improvement include production/job design, technology and re-engineering. Henry Ford perfected the “continuous-flow” production design model for automobile manufacturing in the early 20th century. Fordism shifted the production paradigm that prevailed prior to the introduction of the assembly line. Instead of skilled employees moving from job to job to assemble a final product, Fordism now saw de-skilled workers remain stationary while the assembly lines brought gradually assembled vehicles and parts to be added to their stationary location on the line. While greater efficiencies in support of productivity were achieved through Fordism, unions now gain an advantage by groups of strategically placed production workers able to stop production due to a labour grievance.

Job design is a strategy to enhance organizational efficiency and employee satisfaction, through technological and human considerations. In the face of external forces such as global competition, technological advances and the rise of a service economy, the traditional notion of a job as a set of well-defined and clearly stated responsibilities has changed. Narrowly defined jobs have given way to broader descriptions of employee competencies that embrace cognitive complexity, team orientations, IT skills and flexibility in work scheduling and location. Concepts such as job enlargement, job enrichment, job rotation and ergonomic modifications are design strategies to allow greater utilization of employee skills, knowledge and abilities and improve job satisfaction. Union–management discussions on such key changes to traditionally defined jobs .

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will typically occur during collective bargaining or through joint committee deliberations.

Re-engineering strategies see a fundamental rethinking and redesign of business processes to achieve improvements in efficiencies, costs and quality. For example, a client-centred business process is closely examined by a team of industrial engineers who conclude that five components of a 14-step service cycle could be eliminated through re-engineering without any impact on service quality and a 15 percent jump in customer approval ratings. Re-engineering has been referred to as McDonaldization, an extension of Fordism’s assembly-line model into contemporary organizations to serve the employer’s quest for improved efficiencies and control.

Unions have been critical of how such processes, aided by technology, have enabled the decline of full-time jobs, a growing contingent workforce and privacy issues related to the monitoring and gathering of employee performance data.

The development of new technologies continues to be a dominant environmental force for change. While employers seek to control labour costs and boost efficiencies in production, technological change leads unions to seek assurances of job security and skill integrity for their members. It has been noted that since the 1980s there has been an increase in collective agreement language dealing with the matter of technological change—with over 30 percent of such agreements containing provision for joint union–management committees on this topic.

Some 15 percent of collective agreements are reported to include language on special layoff notices associated with technological change.

There is disagreement over the measures that should be adopted to improve productivity. Some observers have cited the following as possible reasons for the decline in Canadian labour productivity: insufficient investment in higher education, inadequate quality of math and science education in secondary schools, insufficient employer training, excessive business regulation and inadequate investment in capital goods. Employers tend to favour measures such as corporate tax cuts and government deregulation. Unions prescribe measures such as additional investment in infrastructure and employee training. Using the human resources model for productivity analysis, unions and management may approach specific remedies through joint problem-solving approaches such as modified work programs, employee assistance plans and health and safety or engineering audits of particular production areas.

Productivity is an important issue facing private-sector employers that could affect current labour–management relations or the prospect of unionization by dissatisfied employees.

Although in the public sector the provision of services is the primary objective rather than the pursuit of profit, there should be the same concern for efficiency or productivity. Governments are facing increased demands for services such as health care, while at the same time being cognizant of the political consequences of increasing corporate, personal and property taxes.

Some observers are using the language of the private sector to describe objectives and processes in the public sector. There are references to improving the business of government and viewing the public as customers.

There are two employer processes that support both management objectives of productivity and control. These are seen in collective bargaining and collaboration with unions. The previous section has described processes aimed to improve productivity and efficiencies for the employer.

The introduction of technology by the employer is driven by a competitive need for improved .

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efficiencies as well as the desire to better control the production process. The employer can address these interests with the union through the collective bargaining process. There are also situations where the employer may seek out collaboration with its bargaining unit, again to support productivity and control objectives. Health care organizations with an aging demographic of care providers have formed joint return-to-work committees with unions representing nursing and health care aid workers. The employer wishes to minimize the impact of lost time injuries to its staff, which impact unit productivity measures related to patient care.

Similarly, these employers wish to control related worker compensation costs associated with short- and long-term on-the-job injuries due to such physically demanding work. Union representatives wish to be recognized for their advocacy role in returning their members back to modified or full-time duties as soon as possible. This mutual interest is typically realized through joint union–management committees comprised of HR staff, union local representatives and third-party insurance advisors.

Control Control of the workplace has been cited as a management strategy that is as important as efficiency. Managers need control to reduce uncertainty or risk. Additionally, for some managers maintaining control or the right to manage may be based upon personal belief or ideology. They may think that if they are not in control the organization will suffer. For example, if the employer decides to terminate an employee or install video monitoring equipment, there will be an issue with the union. Many employers perceive that a union will prevent them from achieving either or both of their objectives of productivity and maintaining control. Even though a union represents employees, it is still possible for the employer to take unilateral action in areas not covered by the collective agreement. Although such action is subject to constraints the presence of a union does not eliminate management’s residual right to manage. For example, an employer could change the timekeeping-attendance system to make it more efficient without consulting the union. The employer can use the grievance and arbitration process to achieve its objectives.

Although unions file most grievances, employers can also use the process to protect their interests. For example, in one case where a union had instructed employees not to participate in an employee suggestion program, an employer filed a grievance and an arbitrator found in favour of the employer.

In collective bargaining, the employer may face unresolved contract issues that threaten its competitive position or financial viability. A control process used to force economic hardship on the union at such times is known as a lockout. This is a legal process that prevents union employees entering and working their scheduled shifts, and thus not earning any wages. The employer’s strategy is to control the bargaining process by using economic pressure on union members to eventually return to the bargaining table with amended bargaining positions more closely aligned to those of management. If employees pursue a union, some employers will actively oppose the unionization of their employees by campaigning against the union, or in some cases resorting to legal action to oppose the union. Walmart is one employer that has used various methods, including the courts, to oppose the unionization of its stores.

Unions, through labour federations and congresses, work to influence provincial, territorial, and federal legislators through various political activities such as presentations to legislative .

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committees and public protests. Employers also seek support from politicians and engage in lobbying efforts, sometimes through their business associations, to influence public policy, legislation and restrictive regulations. Employers can also achieve their objectives by working collaboratively with a union to improve quality and reduce workplace accidents.

II.

Labour Relations Strategy

An organization’s labour relations strategy refers to how the employer chooses to manage the unionization of its employees. There are several possible strategies employers can adopt, ranging from acceptance to extreme opposition. Specifically, there are eight factors that affect the employer’s approach to unions.

Labour relations strategy is how an employer manages the unionization of its employees.

We will first consider factors affecting an employer’s labour relations strategy.

COMPETITIVE STRATEGY OF THE EMPLOYER An organization’s competitive strategy refers to how it tries to compete in the marketplace over the long term—how it attracts buyers and improves its market share.

UNION OR NON-UNION STATUS OF COMPETITORS An organization that competes in a sector that is heavily unionized may be less likely to oppose unionization than an organization whose competitors are all non-union. If the organization were the only unionized competitor, it would have to be concerned about its compensation costs exceeding that of its competitors.

EXPERIENCE WITH UNIONIZATION If an organization has several operating units or locations, some of which have been unionized, its experience with collective bargaining may affect the employer’s approach to unions at sites that are not yet unionized. If the experience has been negative, perhaps because of a strike, the employer would more likely oppose unionization at its non-union locations.

MANAGEMENT VALUES OR IDEOLOGY The values and beliefs of the organization leadership could affect the organization’s approach to unions. The values or outlook of the senior managers toward unions could also impact the employer’s labour relations strategy. If managers philosophically oppose unions, they may be more inclined to oppose or try to eliminate the union even if the rational choice would be to pursue a more collaborative approach.

UNION PHILOSOPHY OR POLICY The approach or philosophy of the union the employer is dealing with may affect the choices and actions available to it. An employer might wish to pursue a cooperative approach; however, the success of this will depend on the union’s reaction.

Some unions have been more receptive to employer efforts to make changes and include the union in the change process. The role and influence of the parent union also can influence labour relations at the local level.

UNION POWER AND ABILITY TO OPPOSE EMPLOYER If an organization is already unionized, the union’s strength or power may influence the employer’s approach. If an employer .

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is considering a strategy that involves confronting or challenging the union, it may be more likely to do so if the union is in a weaker position. It is reasonable to assume that an employer with only one unionized location among several would oppose the union because it is viewed as vulnerable.

EMPLOYEE GROUPS Certain employee groups, such as those who are part-time, younger or have a higher turnover rate, may make it easier for employers to be more union-hostile.

Younger employees may be less familiar with unionization and their rights and more likely to quit in the face of employer opposition. In contrast, employees who are highly skilled and fulltime have more invested in the workplace and may be less likely to quit and more likely to support the union in a confrontation with management.

LEGAL ENVIRONMENT The legal environment can affect the employer’s ability to oppose unionization and the approach taken by the employer. Generally, the legal environment in Canada makes it more difficult for employers to oppose unionization.. In Canada, some jurisdictions allow a union to obtain the right to represent employees on the basis of signed membership cards without a vote of employees. In most Canadian jurisdictions, there is a provision for the arbitration of first contract disputes if an employer takes an unreasonable position in bargaining: a reluctant employer may have a first contract imposed.

III.

Possible Employer Strategies

UNION OPPOSITION Union opposition is the strategy used when the employer has no unionized employees and wants to remain so. Employers adopting this strategy are likely hostile to unions and may be willing to use both legal and illegal methods to avoid unionization. Some have used tactics such as avoiding the selection of union supporters, transferring union supporters and dismissing employees. The legal framework in Canada makes this a risky employer strategy due to protections afforded to non-unionized employees under the Charter of Rights and Freedoms and an expectation of “good faith” labour practices by management when dealing with unions. For example, Walmart has utilized a Union Probability Index to monitor employee behaviour and morale. If the index indicates union formation is likely, management teams move into the store location to ensure a union is not formed.

UNION AVOIDANCE OR SUBSTITUTION Union avoidance or substitution is another strategy used to prevent unionization, where the employer uses legal means to convince employees they do not need a union. For example, Home Depot invested considerably to produce videos to influence employees not to form a union. It might involve matching the union rate of pay in an industry.

UNION ACCEPTANCE Union acceptance refers to a strategy in which the employer may not want to have a union but remains neutral in a union organizing attempt. If the certification drive succeeds, the employer tries to negotiate the best collective agreement possible. The adoption of a union acceptance strategy means that the employer will pursue more collaborative processes involving the union, such as joint union–management committees.

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Union acceptance is a strategy in which the employer remains neutral in an organizing attempt, and if the attempt is successful tries to negotiate the best deal with the union.

UNION RESISTANCE A union resistance strategy might arise in an organization that is partially unionized. The organization attempts to limit the further spread of unionization to other groups of employees. This strategy may involve aspects of the union avoidance strategy, such as extending wage improvements to non-unionized workers that are similar to those negotiated with unionized employees.

UNION REMOVAL A union removal strategy involves the employer attempting to rid itself of any unions. The tactics used might include stalling in negotiations in the hope employees will become frustrated with the union, enduring a strike in the hope employees will become disenchanted with the bargaining agent, or attempting to use the legal process to challenge the union.

IV.

Strategies of Canadian Employers

It has been commonly thought that Canadian employers do not oppose unions. However, a distinction should be drawn between employer actions before a union obtains the right to represent employees and after the union has obtained bargaining rights. A study examining employer opposition to unions at the organizing stage suggests that employers commonly oppose a union attempting to gain bargaining rights. The study considered employer reaction to organizing attempts in eight Canadian jurisdictions. Opposition to the union was found to be the norm; only 20 percent of employers did not oppose the attempt in some manner. Sixty percent of employers admitted to engaging in active resistance to the union, and 12 percent admitted to committing unfair labour practices during the organizing drive. This important study suggests that employer opposition to union certification is more frequent and persistent than has been assumed. Once a union has obtained bargaining rights, there is evidence that the predominant approach in Canada is union acceptance.

Importance of Labour Relations Strategy The labour relations strategy adopted by management, for example, union acceptance versus union removal, will affect the processes and policies of the employer and its human resources management strategy and practices. The organization’s basic outlook toward unions will also influence the extent to which the employer is willing to adopt less confrontational processes.

V.

HRM Strategy

When dealing with the new economic realities, employers should consider an alterative human resource management strategy: a high commitment HR strategy. The high commitment strategy refers to supporting employees to identify with their employers to therefore increase their efforts to reach the organizational goals.

High commitment HR strategy The high commitment HR strategy involves seeking a competitive advantage by pursuing product and service differentiation via human capital instead of competing on the basis of price, .

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using labour with more skills and perhaps providing higher compensation, adopting better technology and production systems and investing more in training. As part of this approach, employers might move toward a high-performance work system.

High-Performance Work Systems High-performance work systems (HPWS) is a human resources management strategy that fosters employee engagement as valued business partners to support organizational success and competitive advantage.

HRM practices within a HPWS include employment security, selective employee selection, decentralized decision-making, results based employee compensation, advanced employee training, empowering employees as peers, and information sharing .

Policies and Practices for a High-Performance Work System 1.

High standards in recruiting and selection 2.

Job redesign 3.

Comparatively high compensation contingent on organizational performance 4.

Employment security 5.

Sharing of financial and performance information with employees 6.

Minimum status differences 7.

Employee involvement 8.

Dispute resolution systems 9.

Training and skill development 10.

Performance expectations emphasizing continuous quality improvement Some forms of participation may be direct, referring to the fact that employees deal directly with management, while others are indirect, meaning that employee representatives deal with management. Dispute resolution processes refers to measures to protect employee interests, including formal committees with employee and management representatives. Some employers have gone as far as allowing these committees to make binding decisions. The training and skill development required does not refer just to technical skills. In order for employees to be able to work in teams and become more involved, they will need training in areas such as communication, conflict resolution and decision making. Some of the proponents of HPWS note that in order for a system to be successful, it cannot be adopted in piecemeal fashion because some of the components support each other. For example, if an organization invested additional resources in training and skill development, but did not provide for increased compensation, it is possible that employees would quit and take their additional skills to a new employer.

ADOPTION OF HIGH-PERFORMANCE SYSTEMS IN CANADA The evidence indicates that high-performance work systems have not yet been widely adopted in Canada. It appears that a majority of Canadian employers have adopted some high-performance workplace features and practices, but only a few have adopted a complete package. The majority maintain a traditional system in which little strategic priority is placed on human resources. The highperformance model seems to have been more widely adopted in the United States.

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EFFECTIVENESS OF HIGH-PERFORMANCE PRACTICES Whether high-performance practices have been effective is a matter of some debate. An HPWS could entail additional costs, especially in the areas of training and development, and compensation. Some observers point to US and Canadian research that shows high-performance systems produce positive financial results. However, others say “it would appear that, on average, the full adoption of this paradigm may not yield outcomes that are appreciably more positive than those yielded by practices that have long been associated with good management, including professional personnel practices (e.g., job ladders, employment security, grievance systems, formal training, above-market pay), group work organization, information sharing and accommodative union relation policies.” A review of in-depth industry studies shows that there are specific industry contexts in which there is a distinct possibility that firms will benefit from the high-involvement route to high performance. The most conclusive evidence from this in-depth review, is drawn from the work in automobile manufacturing and from the studies of steel production. In these cases, there is good evidence that willing worker engagement in problem solving in a technologically sensitive production process enhances machine uptime, quality and on-time delivery. However, the authors of the study also noted that there is clearly a need for caution with overgeneralized claims of economic benefits and that the path ahead is very much one of studying production processes in specific worksites and industries.

SIGNIFICANCE FOR LABOUR RELATIONS The adoption of high-performance practices by some employers has implications for labour relations. Some have questioned whether high-performance practices have had negative effects for employees, including increased workload, more stress, longer hours and a faster pace of work. Unionized employers seeking to adopt features of HPWS will likely encounter union resistance to some components of an HPWS. To improve product quality and productivity, firms must pursue technological innovation. Unions will seek protection in collective agreements from technological change leading to job losses. Employers may seek contingent or variable pay plans for the purposes of increasing productivity that might include gain-sharing and profit sharing. Where the employer seeks to implement changes such as variable pay that are different from established collective agreement terms, the likelihood of union resistance appears to be high. Although employers may be able to implement some changes without the consent of the union where the changes are not prohibited by the collective agreement, the effectiveness of this approach is questionable.

There is evidence that union participation and support of innovation programs can improve the chances of their success. In the United States, increased employee involvement has been part of employer attempts to avoid unionization. Canadian unions fear employee involvement as an employer tactic used to influence employees and weaken the union. Employers who wish to increase employee and union involvement will have to address these concerns.

VI.

Employee Relations Programs

Remembering that approximately 30 percent of Canadian workers belong to unions also means that there can be a large number of non-union employees in the same organization. Thus, in discussing employer objectives and processes it is reasonable to conclude this chapter by addressing the HR programming area referred to as employee relations. This term was defined in Chapter 1 as activities and processes aimed at maintaining a productive workplace. This discussion realizes .

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that employee relations programming does not strictly divide an organization’s staff into exclusive union and non-union camps. The discussion of key employee relations program components will rather look at why such initiatives should be considered an element of human resources management in an organization and, when used, what if any considerations should be understood when such work environs include one or more union groups.

Advice and guidance to managers regarding effective employee relations strategies is a required professional competency for contemporary human resources professionals in Canada.

Consultations with supervisors in building effective communication networks, staff recognition and employee involvement programs, progressive discipline practices and diversity management strategies together assist in strengthening relationships with company employees. Such improvements have been identified to improve productivity, ensure implementation of corporate strategies, reduce employment costs linked to absenteeism and turnover, and facilitate employee growth and development.

Employee Communications Organizations are made up of networks of individuals who come together to achieve a common purpose. Whether this outcome is aimed at profit, personal growth and well-being or socially desired achievements, it is assumed that individuals in that organization must effectively communicate with one another. To not do so may lead to needless errors, poor performance and the perceptions of unfairness or abandonment.

Such practices are important as a result of significant organizational transformation. While hierarchical management structures still exist, many companies have opted for flatter corporate paradigms. This shift was often caused by the need to cut costs to remain competitive in a globalized marketplace. One of the spinoffs of such restructuring was the emphasis on employees becoming more directly involved in communicating with their peers, customers and suppliers.

The rapid transformation of communication technologies has also set up an interesting dynamic regarding the expectations of the speed and immediacy in response time between communicators in the workplace. This is particularly true between a supervisor and his or her employees.

Communicating “up and down,” the organization may now be faster because of leaner corporate structures and the proliferation of technologies. Such communication patterns are still key ingredients in building successful employee relations in contemporary workplaces.

Communications patterns in today’s workplaces include both formal and informal patterns to sharing information. Two main approaches involve upward and downward communication networks. Downward or “top-down” communication is best described as management sharing information down toward the employees and is designed to inform or influence others in the organization. Such means for communicating also provides knowledge about “what is” in the company at a given point in time as well as informing employees regarding their work performance. An example that combines the desire of management to communicate their successes to others in the company with the immediacy brought about by technology is Eli Lilly, an international pharmaceutical firm that showcases employees who have made a special contribution by putting their pictures on video screens throughout the firm’s Toronto corporate offices. .

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Bottom-up communication allows employees to share their work experiences and perspectives on the business with those in a position of power—whether it be their supervisors or executives in the C-suite. Several common upward communication strategies have been outlined by Schwind, Uggerslev, Wagar, Fassina and Bulmash. One of the more intriguing forms of moving information “out and up” the organization is the 21st century’s equivalent of the office “grapevine”: the use of social media. Savvy employers have encouraged such upward communications by establishing various social media platforms within the company and integrating this employee communication strategy into their corporate culture. Not only do social media replace the more static communication vehicles of today’s workplaces, such as newsletters, they also allow employees to directly distribute information and engage in conversations about workplace issues.

The concept of employee relations is realized, particularly by millennials accustomed to social media, through social networks that provide greater connectedness in traditional corporate hierarchies and between organizational members who otherwise may not talk to one another because of distance, staffing level or job design. In fact, it has been noted that millennials can force corporate leaders to adopt a culture-oriented to internal customer service, treating employees in the same manner as their clients.

Staff Recognition Programs In 2012, Forbes reported on a study of employee recognition programs that showed companies spend between 1 and 2 percent of payroll on this human resources activity. The study also showed that 87 percent of such recognitions were based on employee tenure as opposed to job performance. This emphasis is due, in a historical context, to the union movement in North America. Contemporary thinking suggests that the purpose of recognition programs is to encourage greater levels of discretionary effort by employees. The Forbes research referenced companies such as Intuit and Deloitte that have linked their recognition rewards to corporate mission and goals. In such settings, what is “thanked” relates to behaviours tied to the company’s strategy and witnessed in acts of customer service, innovation and teamwork. Such “recognitionrich” business cultures have reported reductions of 31 percent in voluntary turnover.

Unions and their supporting organizations are involved in the topic of employee recognition programs. The Professional Institute of the Public Service of Canada discussed this issue in 2013, noting five award categories. These included milestones and retirement, people’s choice, instant recognition, awards of excellence and external awards at unionized workplaces. A broader level of community recognition of union members was displayed between the United Way of London-Middlesex in Ontario and local trades and labour councils. Their Images of Hope award recognizes the effort of an extraordinary individual from the labour community who provided out-standing volunteer service to the local United Way and to the community. Although such recognition may move beyond the normal scope of awards sponsored by an employer, the company has an opportunity to showcase award winners to fellow employees, thus contributing to the individual’s recognition by her peers as well as symbolizing important elements in corporate responsibility and values.

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Employee Involvement Changes in the environment such as globalization, new technology, and increased competition are forcing employers to change methods of operation. Some have attempted to move toward a high-performance organization that includes employee involvement, flexible jobs, increased training and variable pay. Employers may pursue these new approaches to utilize employee knowledge and expertise, increase motivation, reduce costs and increase productivity and quality.

Some employers may adopt changes such as employee involvement groups in order to increase employee satisfaction, which may also have a positive impact on retention and recruiting. Some may be forced to adopt employee participation because of a crisis caused by a loss of business or some other external shock. Others may have adopted it in order to copy what is viewed as the best practice of other employers. In some cases, employee participation has been adopted as part of a program to deal with a deteriorating labour–management relationship. Employee involvement may be adopted in conjunction with other workplace changes such as job sharing, employee attitude surveys and job rotation.

Forms of Employee Involvement Employee involvement, also called worker participation, employee participation or the highcommitment organization, includes a range of possible measures to increase employee input into business operations: quality circles, employee problem-solving groups, joint employee– management committees, employee work teams and co-determination. Co-determination, sometimes called joint governance or strategic alliance, raises special concerns regarding the role of the union, which are referred to below.

Quality circles are groups of employees who investigate problems relating to quality and make recommendations to management for improvements. Problem-solving groups are teams of employees who meet to deal with particular issues such as the installation of a new computer system. Problem-solving teams make recommendations to management; however, they do not have the authority to implement their recommendations. As the name indicates, employee– management committees include representatives of both management and employees charged with the responsibility of making recommendations to the employer. A health and safety committee is an example. Self-directed teams or self-managing work teams are distinctive because they have more autonomy and responsibility. Typically, they take on tasks previously undertaken by management. For example, work teams may assume the tasks of tracking and distributing their own overtime.

Employee Involvement Under the Collective Agreement Employee and union involvement can be achieved either pursuant to provisions contained in the collective agreement or outside of the agreement. Joint union–management committees or task forces can be used to address a range of issues associated with compensation, employment security, training and working conditions.

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Employee Involvement Outside of the Collective Agreement UNION VIEWPOINT An employee involvement program undertaken outside of the collective agreement should take into account union concerns about such programs. Some unions have been more receptive to employee involvement programs than others.

Many of the reasons for union support or opposition to employee involvement relate to a basic difference in approach to the relationship between unions and employers. Those who think there is a fundamental conflict between the interests of the employee and the employer are more likely to oppose such programs. Union leaders may view employee involvement as a management attempt to increase the pace of work so that more output can be obtained for the same wage. A few union leaders believe that increases in efficiency and productivity will only benefit management. They allege that management will use employee involvement to have employees work themselves out of a job. Because employee involvement programs seek to have employees adopt company goals, union leaders fear that employees may develop a greater attachment to the employer’s goals and objectives than those of the union. In other words, instead of empowerment, some union leaders view aspects of employee involvement as manipulation.

Other union leaders believe that if change is to be undertaken, there is merit in being involved so they have an opportunity to protect employee interests. Employee involvement often includes training, which may benefit employees. Programs have included training in language and IT skills. This may have benefits for employees outside of the workplace. In one case, employees observed that training in English allowed them to talk to the friends of their children for the first time. In some cases, the increases in job skills can be the basis for higher job classifications and increases in wages. Some employees may benefit from a reduction in boring and mundane work, increasing job satisfaction.

Further Considerations for Employee Involvement Programs Where the employer implements an employee involvement program without the involvement of the union, questions regarding the legality of such programs and union opposition may arise.

There are two key points here. First, the union is the exclusive bargaining agent of employees.

Second, unions cannot engage in a stoppage of work that would amount to an illegal strike.

Employers are allowed to communicate with employees where the subject matter of the communication is an item that the collective agreement leaves to management’s discretion. If the collective agreement does not refer to methods of operation—and most do not—the employer can obtain input directly from employees without violating the union’s exclusive bargaining rights.

Conversely, an employee involvement program cannot relate to matters covered by the collective agreement. For example, a program that solicited employee views regarding compensation or working conditions might be in violation of labour relations legislation. If the union encourages employees to boycott an employee involvement program, this too might be seen as a violation of the collective agreement and labour relations statutes. The employer could then pursue a remedy with the Labour Relations Board because the boycott might be an illegal strike.

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In summary, employers must ensure that an employee involvement program undertaken without union involvement does not violate the exclusive bargaining rights of the union, and unions must not prohibit employees from becoming involved in employer programs if the refusal amounts to an illegal strike.

Outcomes of Employee Involvement Studies have examined the effects of employee involvement programs on productivity, employee satisfaction and workplace conflict. Although it appears logical that employee involvement programs would improve productivity, that has not always been confirmed by research. Most studies do show increased productivity, but there is significant variation in the outcomes and a few studies have found no improvement. Studies indicate a small increase in employee satisfaction where employee involvement programs have been undertaken. A study has confirmed that employee involvement programs reduce conflict in the workplace as measured by the grievance rate. However, some critics have claimed that the reduction in grievances is a reflection of the union having been co-opted by management and the suppression of conflict.

It appears that employee involvement programs are difficult to maintain over time. One study examined the survival of employee involvement work practices over a three-year period. It was found that the failure rate for employee involvement practices was significant: 35.2 percent of problem-solving groups, 46.8 percent of joint employee–management programs and 59.1 percent of quality circle programs did not survive for three years. The author concluded that highinvolvement work practices are fragile and do not often last very long.

PROGRESSIVE DISCIPLINE In Chapter 10, an explanation of progressive discipline is referenced in the context of administering a collective agreement. Except in situations of misconduct which constitute “just cause,” employers are expected to apply progressive discipline that sees the application of increasing penalties should employee misconduct continue to occur after an initial warning.

From an employee relations perspective, the principles of progressive discipline seen in a unionized setting should also be applied to non-union staff. Not only does this provide a perception of procedural justice among employees, particularly when the work setting is comprised of union and non-union workers, but it also helps reinforce desired behaviours that support key aspects of organizational culture. However, a caution on the use of the step involving unpaid suspensions is noted here when dealing with non-union and management employees. Unless there is an expressed clause in the employee’s hiring contract, an imposed unpaid suspension as a form of discipline on a member of these two groups may constitute constructive dismissal under common law. A substitute for this step in the above-outlined framework would be a final warning letter to the employee.

Diversity Management Diversity was described as a trend that will affect the Canadian labour market in the coming decades. Diversity in this context relates to demographic characteristics of managers and employees such as their age, ethnic origin, religious beliefs, sexual orientation and physical abilities. Progressive companies recognize that employee diversity offers a tremendous opportunity to advance corporate goals and objectives in today’s globalized economy. The Royal .

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Bank of Canada’s diversity council is comprised of RBC executive staff and meets quarterly to identify targets, track goals and set policy. A 2017 article about RBC’s diversity initiatives references three “bottom-line” benefits of a diverse workforce.

• Different people bring different attitudes and experiences to the table, which helps companies avoid groupthink, provides deeper insights on issues and challenges people to think out-side-the-box.

• As markets continue to globalize, customers are becoming more diverse. A diversified workforce is likely to have people who identify with the unique needs of clients and are therefore better able to serve them.

• Employees need to feel valued to reach their full potential. Companies that embrace diversity tend to have lower absenteeism and turnover and higher productivity.

A focus on diversity management in today’s corporations is a reality for those involved in both employee and labour relations. The Human Resources Professional Association, in partnership with Knightsbridge Consulting, ran a four-part dinner series on generational diversity in the workplace. The presentations in that series focused on building the alignment and engagement of all employees, creating a work environment that provides flexibility and support for staff and explored how to address employees’ needs as well as build leaders’ capabilities to inspire and develop the their organization’s human resources management in a climate of openness and collaboration. At the 2014 convention of the Canadian Labour Congress, the importance of attention to demographic diversity to the future of the labour movement in Canada was discussed. It recognized that the demographic changes occurring across the country needed to be understood by, and reflected in, the labour movement. Convention delegates heard that by 2020, 65 percent of all job openings will be attributed to retirements. The CLC noted that such projected labour shortages will require the union movement to lobby governments and support innovative programming on behalf of key demographic groups that have the potential to replenish the projected tight labour market. Government funding, innovative outreach programming and advocacy on the part of the labour movement can facilitate social programming initiatives to assist with sourcing and developmental opportunities for women, Aboriginal persons, immigrants, and persons with disabilities to replenish the talent gap in Canada that is projected in the coming decades.

VII.

Review Questions

1.

What are two key objectives of employers? In the light of each of these objectives, explain at least one process or methods a company could use to achieve each objective.

The objectives and methods of employers are summarized in Figure 4-4.

2.

Identify three different factors affecting an employer’s labour relations strategy.

The factors are: • the competitive strategy of the employer • the union or non-union status of competitors • experience with unionization .

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• • • • •

management values or ideology union philosophy or policy union power and ability to oppose the employer types of employees the legal environment

3.

How are cost leadership, and a differentiation strategies different for a business?

A cost leadership strategy involves providing a standard product or service and competing on the basis of price. In the retail industry, Wal-Mart is an example of organizations that use a cost leadership strategy. An organization using a differentiation strategy competes on the basis that the product or service provided is unique or distinctive from the competition, as opposed to having the lowest price. In the appliance industry Maytag is an example. Maytag competes on the basis that its products have unique features and higher reliability than the competition, rather than lower prices.

4.

Outline the difference between a union substitution strategy and one other possible employer labour relations approach.

The employer labour relations strategies noted above are: Union Opposition This strategy involves attempting to maintain a union-free status and may include tactics that are illegal such as dismissing union supporters Union Avoidance or Substitution This strategy involves attempting to remain union-free by convincing employees that they do not need a union by using tactics such as providing higher compensation.

Union Acceptance This strategy involves trying to live with any union that obtains bargaining rights and negotiating the best deal possible.

Union Resistance This strategy involves a partially unionized employer attempting to limit the spread of unions in the organization. This might involve tactics such as extending wage increases achieved by the union to non-union employees Union Removal This strategy involves an employer attempting to rid itself of a union. The tactics may include illegal activity such as refusing to bargain in good faith.

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5.

Describe the implications of a cost leadership or differentiation strategy for labour relations.

An organization adopting a cost leadership strategy will emphasize keeping costs, including labour, to a minimum. This will lead to pressure to avoid unionization because a union may lead to higher compensation costs. If the firm's employees do unionize the employer will attempt to avoid increases in compensation to the extent possible. Wal-Mart is an example of an organization that uses a cost leadership strategy and is known as opposing the unionization of its employees. An organization adopting a differentiation strategy will emphasize product development and maintaining better products and services. The firm must develop and maintain the human resources required to provide better products and services. It is possible that the higher costs associated with the unionization of employees could be passed on to consumers in the form of higher prices. A firm adopting a differentiation strategy may have less reason to adopt a labour relations strategy which is aimed at avoiding or eliminating unions.

6.

Explain the significance of a high-performance work system for labour relations.

The features of a high-performance work system are summarized in Key Considerations 4-1.

Some of these features, in particular employment security and high compensation, will be items that a union would support. Some of these features, in particular contingent or incentive compensation and employee involvement could lead to conflict with a union. Unions generally do not agree with “at risk” pay systems because employees do not have control over the factors that could affect compensation. Some unions are wary of these programs because they are concerned that employees will be co-opted by the employer.

7.

Outline barriers to increase employee involvement in unionized workplaces. Which one would be most difficult to overcome?

Barriers to employee involvement include union support, training implementation and cost, sustainability. Students may have a variety of responses to the most difficult. From a labour relations perspective, union support is the most critical and often the most difficult.

VIII. Web Research The purpose of this web research exercise is to make students aware of an organization that represents employers. Current issues related to labour relations with these sites may change over time.

IX.

Vignette

What Is the Purpose of Unions Today?

Unions are a significant business partner in unionized Canadian organizations and became a prominent voice for employees during the COVID-19 pandemic. Historically, unions have advocated for employees’ voice in organizational issues, improved work conditions and compensation, enhanced employment security, and promoted equity. Unions are also well positioned to promote social and economic justice. .

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Practically, during the COVID-19 pandemic, unionized employees were able to secure enhanced safety measures, additional premium pay, paid sick time, and a voice in work-share arrangements and work from home plans. Unions also afforded employees job and income security during the pandemic. On the other hand, there are some British Columbia public employees who believe unions failed to protect their desire not to receive a COVID-19 vaccine. BC government employees who did not get vaccinated or did not disclose their vaccination status were put on unpaid leave.

Further, unionized employees also reported feeling unsafe, stressed, and overworked during the pandemic. Unions then supported their employees during the pandemic by advocating for safer working conditions and by helping avoid union members’ job loss. Unions also supported employees to work from home (75.8 percent union vs. 64.7 percent non-union), gain access to personal protective equipment (63.4 percent union vs. 53.8 percent non-union), and employerprovided enhanced cleaning protocols (30.7 percent union vs. 22 percent nonunion). As returnto-work plans were being considered as we moved through the pandemic, City of Ottawa unionized employees expressed concern over these plans. In particular, these employees asked for a delayed return to onsite work until the pandemic was better understood and the case numbers were declining. The union worked with the city to develop return to-work plans reflecting the employees’ concerns.

X.

Case Incident

Case Incident: Wal-Mart and the UFCW 1.

Identify the employer’s labour relations strategy and explain possible reasons for this strategy.

Wal-Mart has adopted a union opposition strategy. This means that the employer is hostile towards unions, wants to avoid unionization, and will spend significant resources to remain union free. In this incident Wal-Mart makes extensive use of the legal system, spending a significant amount of time and resources to avoid unionization. Wal-Mart closed a store that unionized in Québec. A union opposition strategy may include illegal employer activity. There was a union organizing campaign at a Wal-Mart store where the employer was found guilty of unfair labour practices.

Possible reasons for Wal-Mart's union opposition strategy include: Competitive strategy. Wal-Mart is following a cost leadership strategy in which the emphasis is to provide goods and services at a lower price. Accordingly, cutting costs, including labour costs, is a part of a cost leadership strategy.

Non-union status of competitors. In the retail sector the rate of unionization is low. If the employer was unionized, and compensation costs were increased, the employer would be at a competitive disadvantage.

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Management values or ideology. Key management staffs, including the founder of Wal-Mart, have been reported to be opposed to unionization.

Type of employees. Younger part-time employees, and higher turnover make union opposition a more attractive and easy strategy to adopt.

2.

Outline the environmental factors affecting this situation.

This incident illustrates several environmental factors.

Social environment. Values and beliefs relating to unions are illustrated. Some observers appear to be opposed to the unionization of the employer because it may adversely affect employment.

In turn, some employees may be affected, and this may be a factor influencing whether they support or oppose the union.

Economic environment. Presumably, the economic environment was such that a new store could be established in Weyburn.

Political and Legal environments. A change in the government has led to changes in rules relating to the unionization of employees. In particular, there is now a requirement for a vote to be held on all applications for certification.

3.

In light of the Supreme Court of Canada Decision (June 2014) involving Walmart and a Quebec store closure in 2005, how might the company’s labour relations strategies be modified.

The union has adopted a union opposition strategy which has not been successful in Canada as several jurisdictions have found Walmart in violation of various labour laws. In order to avoid similar decisions from arbitrators the company could adopt a union avoidance or substitution strategy. It may be doubtful that the company will employ such a strategy, as this closure likely influenced other certification votes.

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CHAPTER 5 GOVERNMENTS AND LABOUR RELATIONS BOARDS Preface In this chapter, students will consider the third main actor—the government. This will include government objectives—the reasons for government involvement in labour relations—and methods the processes available to governments to achieve their objectives. They will also briefly discuss the other parties involved in labour relations, paying special attention to labour relations boards.

Learning Objectives 5.1 5.2

Explain the objectives of governments and the processes or methods used to achieve those objectives.

Explain the composition, roles, and importance of Labour Relations Boards.

Outline/Table of Contents

I. II. III. IV. V. VI. VII. VIII. I.

Government Objectives and Processes Labour Relations Boards Other Groups Review Questions Discussion Questions Web Research Vignette Case incident Government Objectives and Processes

Some of the objectives and processes we will explore, including the regulation of labour relations outcomes through labour relations legislation, have a direct impact on unions and employers. Other objectives, such as regulating the economy through monetary and fiscal policy, have an indirect effect on employers and unions. Monetary policy that provides for higher interest rates to control inflation is not directly aimed at employers and unions; however, it will affect them. Some of the objectives overlap: for example, government attempts to regulate labour relations outcomes also protect the public interest. Government efforts to regulate the economy also affect the distribution of rewards that may be a government concern. Fiscal policy that reduces taxes to stimulate the economy should increase employment and thus affects the distribution of rewards. There may be conflict between some of the objectives and processes.

Some observers argue that efforts to pursue equal opportunity and regulate employment conditions through employment equity and employment standards legislation deter business and negatively impact the economy. One process could help achieve several different objectives. For example, providing financial assistance to a particular industry serves the government objectives of regulating the economy and maintaining office. .

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Regulation of Labour Relations Processes The key processes in labour relations are union organizing, contract negotiation and the administration of collective agreements—each requiring government regulation. Prior to government regulation of the organizing process, strikes—sometimes violent—were used to force employers to recognize and negotiate with unions. Prior to government regulation, employers discriminated against union supporters. The primary method governments use to regulate labour relations processes is labour relations legislation. Figure 5-2 lists the labour laws affecting private-sector employers in federal, provincial, and territorial jurisdictions.

This legislation sets out rules regulating how a union obtains the right to represent employees, listing the rights of employers during an organizing campaign, imposing a duty to bargain in good faith on both the parties and requiring disputes during the term of a collective agreement to be resolved through arbitration.

Collective agreements, strikes and lockouts are important outcomes in the labour relations system. Negotiated contract terms could affect the economy by causing inflationary pressure.

Some strikes and lockouts could harm the public. Certain unionized employees may still need protection regarding the terms and conditions of their work, because being in a union does not guarantee adequate rewards or safe working conditions. In light of these possible consequences, governments use several methods to regulate labour relations outcomes. For example, labour relations legislation in all jurisdictions requires a strike to be approved by an employee vote, and a strike notice is required in some jurisdictions. Governments can pass back-to-work legislation to end a particular strike. Employment standards legislation sets out maximum or minimum terms and conditions of employment such as hours of work.

Protection of the Public Interest There is a broader public interest that needs protection. It is possible that a strike might not seriously harm the employer because it can carry on business using an inventory of finished product. It is possible that a strike might not seriously harm the union because of strike pay, financial assistance from other unions and the attainment of alternative work by striking employees during a work stoppage. However, a strike could inconvenience or harm the public interest by eliminating an important service such as public transit. To limit the impact of such labour disruptions to the public, governments may seek to avoid strikes and lockouts through one or more of the following: labour relations legislation that places restrictions on strikes and lockouts; assistance during negotiation in the form of conciliation and mediation; and back-towork legislation.

Regulation of the Economy The regulation and improvement of the economy is a strategic government objective that will affect employers and unions. Governments may wish to control inflation and unemployment through monetary and fiscal policy. They may also seek to establish a positive climate for investment through measures such as tax cuts and aid for industry. Concern about government debt levels could lead to reductions in government spending and employment. The federal government may pursue trade agreements, such as USMCA, that will impact employers and unions. .

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Assistance to Industry All levels of government may engage in efforts to aid an industry. During the COVID-19 pandemic the federal government assisted both employers and employees negatively impacted the by the pandemic. In particular, the federal government offered employers wage and rent support.

Regulating Market Practices and Results There are concerns about the practices and results in an unregulated market economy. It is possible that without regulation, safety in the workplace would be diminished and undesirable practices such as discrimination in hiring or promotion practices could increase. There may also be concerns about the equitable distribution of rewards or unchecked workplace harassment.

Government methods in this area include employment standards legislation that sets out minimum terms of employment, including wages, vacations, leaves of absence and work hours.

Employment standards legislation will affect the negotiation and administration of collective agreements. The collective agreement must provide employees with at least these guarantees provided in the legislation. If the relevant legislation provides for a minimum bereavement leave, a collective agreement cannot provide less time off. This is sometimes referred to as not being able to contract out of such employment standards obligations. If the collective agreement did not include a leave of absence for parents adopting children, the leave provided for in legislation would have to be granted to those covered by the contract. The employer and the union will also have to ensure that changes in employment standards legislation, which may provide new or additional protection to employees that is not provided in the agreement, have been complied with. For example, employment standards legislation in most jurisdictions has been amended to provide for compassionate care leave. This development allows employees to take unpaid time off to attend to seriously ill family members.

There are important considerations associated with employment standards legislation. First, many of the standards are set at a low level. For example, the provided vacation entitlement is minimal, and the minimum wage could not be considered a living wage. Second, certain categories of employees may be subject to special rules or exemptions under employment standard laws. For example, in Ontario, paramedics are not entitled to overtime pay; an employer and union representing this job class may agree in writing that the general rest period rule does not apply, and job incumbents are entitled to eight consecutive hours free from work each day.

Third, there are problems with the enforcement of the legislation.

Human rights legislation protects employees from discrimination and harassment. Health and safety legislation provides protection against accidents, industrial diseases and in some jurisdictions, harassment. This legislation sets out minimum terms for the workplace, such as requirements for a health and safety representative or committee, which may be exceeded in a collective agreement. All jurisdictions have equal pay for equal work legislation, usually provided for in employment standards legislation. Pay equity laws have been enacted to achieve equal pay for work of equal value to female-predominant job classifications.

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Unions have a role in the administration and enforcement of such legislation via applicable collective agreement language. Employment equity legislation attempts to address historical discriminatory employee recruitment and selection practices by employers by removing barriers and taking proactive measures to ensure that four designated groups—women, visible minorities, individuals with disabilities and Indigenous people—are adequately represented in the workplace. Unions may have a role in the preparation of required equity plans and the enforcement of this legislation through grievance and arbitration processes.

Government Employers: Objectives In 2021, there were 319,601 federal public-sector employees. Further, 11% of all Ontario employees work for the provincial government. Notably, provincial health care is the largest employer in every province. The manner in which governments deal with their own employees and unions may have an effect on employers in the private sector. If governments take a leading role by providing innovative terms of employment, such as daycare services, private-sector employers and unions will likely negotiate the same issues. When governments take a harder line with unions representing public-sector employees, this too may influence private-sector labour relations. Although public-sector employees in some jurisdictions are regulated by the legislation governing the private sector, some governments enact special public-sector labour relations legislation. For example, The Saskatchewan Employment Act regulates both government employees and those in the private sector, whereas in Ontario there is a Crown Employees Collective Bargaining Act, which covers government employees only. Public-sector legislation regulates who can unionize, the issues that can be bargained and the employee’s right to strike.

Governments have from time to time made use of back-to-work legislation. They may also have the same labour relations processes as private-sector employers, including contract negotiation, lockout provisions in some cases, grievances and arbitration and public relations campaigning.

Finally, it must be noted that government plays other roles and engages in other activities not referred to here that affect employers and unions. Governments provide secondary and postsecondary education, which affects the supply of labour available to employers. Federal and provincial governments have provided significant amounts of funding to encourage young Canadians to pursue successful careers in skilled trades, a workforce sector that is largely unionized. In addition to these programs, the federal government has made funding available to small businesses to encourage the hiring of young apprentices in certain high demand trades.

II.

Labour Relations Boards

Labour relations legislation establishes a Labour Relations Board in each jurisdiction, which is responsible for administration of the legislation. Most Labour Relations Boards in Canada are three-person representational bodies consist of a neutral chairperson and vice-chairs, and representatives from employers and unions. Although in some jurisdictions there is a provision for hearings to be conducted by a neutral chair or vice-chairperson, some hearings are conducted by a three-person panel including one labour representative, one employer representative and a neutral chair or vice-chair. While the government appoints Board members and the Board must apply the relevant legislation, the Board is independent from government.

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Board Responsibilities Labour boards play a central role in the labour relations system. They have the authority to grant bargaining rights to unions and to terminate those rights. When it is alleged that an employer or a union has violated labour relations legislation, a complaint is filed with the appropriate Board.

The jurisdiction of Labour Relations Boards has been increasing in recent years. Some have a broader jurisdiction than others; for example, in British Columbia the Board has responsibility in areas that other Boards do not, including the settlement of disputes through a mediation division. In some jurisdictions, there is special legislation and a separate Board that deals with the public sector.

Procedure and Remedies On an application to a board, a settlement officer attempts to resolve disputes so that a formal hearing is not required. Very often a hearing is avoided using this approach. The Boards have extensive remedial powers, including ordering the reinstatement of employees and the payment of damages.

Although board decisions cannot be appealed, two courses of action are open to a party not satisfied with a decision. An application can be made either for the board to reconsider, or for judicial review of, the decision. An examination of board annual reports shows that although the boards make thousands of decisions every year, very few undergo judicial review. For example, the Manitoba Labour Relations Board, in its 2019-2020 annual report, noted there were 350 cases heard that year.

Referring disputes under labour relations legislation to a board instead of the court system has a few advantages. Individuals with expertise in labour relations make the decisions, and they are made faster, with less expense.

III.

Other Groups

Arbitrators Arbitrators play an important role in the labour relations system. Interest arbitration, seen more commonly in the public sector, involves arbitrators settling certain terms of the collective agreement when the management and union representatives are not able to successfully negotiate a contract. When a union and an employer have a dispute about the interpretation, application or administration of an existing collective agreement, it is referred to rights arbitration. A sole arbitrator or arbitration board in such cases, hears evidence presented by the parties and renders decisions that are binding upon them. The termination of an employee is one important issue that is referred to arbitration. A key point to note is that arbitrators are independent from government.

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Some provinces have voluntary professional associations for labour–management arbitrators and websites related to current members, criteria for membership and a code of ethics. There are also web-based directories of participating labour arbitrators by regions in Canada showing their availability for hearing dates.

Courts The courts play an important role in labour relations. Although it is seldom done, it is possible to have an arbitrator’s decision reviewed in the courts. In 1999, the Supreme Court of Canada in the Meiorin case (British Columbia (Public Service Employee Relations Commission) v. B.C.G.S.E.U., 176 D.L.R. (4th) 1), which established the requirements for a bona fide occupational requirement, illustrates the role of the courts.

Human Rights Tribunals Federal provincial, and territorial regulated employers must comply with human rights legislation by not discriminating against an employee based on specific prohibited grounds as outlined in the particular code. Collective agreements typically include language requiring both union and management representatives to act in a manner that is consistent with human rights legislation. This enables union members, through their bargaining agent, to utilize the grievance process in the collective agreement to address alleged discriminatory practices. It also offers a faster route to resolve a complaint than pursuing a claim with a human rights tribunal. However, there are instances where a complaint may proceed directly to a tribunal.

IV.

Review Questions

1. Why does government become involved in labour relations?

Governments become involved in labour relations for a number of reasons including the following: To regulate labour relations processes and outcomes. Legislation regulates the union organizing process including who is allowed unionize, how unions obtain bargaining rights (the issue of relying on membership cards versus a mandatory representation vote is considered in the next chapter), and union and employer conduct during a union organizing campaign. Legislation also regulates the negotiation process imposing a duty to bargain good faith. Legislation requires certain terms to be included in collective agreements including an arbitration process for disputes and a minimum one-year term. Governments may also be concerned with the compensation levels provided in collective agreements and have on occasion enacted legislation limiting wage increases.

To assist employers and unions. Governments provide conciliation and mediation services to unions and employers negotiating collective agreements. Some governments also provide services aimed at helping the parties improve their relationship.

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To protect the public interest. Governments prevent some labour disputes from harming the public by restricting the right to strike and ending some strikes.

Employment. The government is a very large employer.

Political activity. Some government action may be undertaken in response to the political activity of employers and unions.

Regulating market practices and results. Governments have enacted legislation providing for minimum terms of employment, which affect unions and employers. Human rights and employment equity legislation regulates employment practices.

Assisting industry. Examples of government aid for industry are provided in the text.

2. What methods do governments use to regulate and influence the labour relations system?

Governments regulate and influence the labour relations system through the methods. Legislation affecting unions and employers includes labour relations legislation, human rights legislation, employment standards legislation, and on occasion wage control legislation. Governments directly or indirectly employ approximately 18 percent of Canadian workers. The terms and conditions which governments agree to in collective agreements may influence other unionmanagement relationships. Monetary and fiscal policy regulating the economy will influence unions and employers.

3. What is the composition of a labour relations board?

Members of Labour Relations Boards are appointed by the government. The Boards consist of a neutral chair and vice-chairs, and representatives from employers and unions.

4. Why are Labour Relations Boards key actors in the labour relations system?

The responsibilities of Labour Relations Boards are listed in Key Considerations 5-1. The key role of the Boards is illustrated by noting that all of the following events would involve a Labour Relations Board: • an application for certification by a union • an application for decertification • a complaint that an employee has been dismissed because of union activity • a complaint that an employer has refused to negotiate with the union • an illegal strike or lockout • an application for first contract arbitration (not all jurisdictions)

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V. Discussion Question 1. Give two examples of how employment standards legislation protects the terms and conditions of work for employees. Are these examples of minimum terms? Could each standard be exceeded in a collective agreement? Explain: Employment standards legislation has been criticized for providing only minimal protection to employees for a number of reasons including: • • •

some employees are exempted from coverage some of the standards are low enforcement of the legislation is not adequate

The standard relating to vacations provides only minimal protection. In some jurisdictions the legislation only provides for two weeks of vacation, and in only one jurisdiction (Saskatchewan) does it eventually provide for four weeks. This appears to be below the standard practice in many industries. Maternity and parental leave appear to provide more adequate protection. Depending on the jurisdiction maternity leave is 15 to 18 weeks and parental leave is 27 to 34 weeks. By combining these two leaves a mother will be able to be away from work approximately one year.

VI. Web Research Students should be able to identify that federal, provincial, and territorial labour boards are comprised of independent individuals and representatives from employers and unions. The labour boards provide resources, such as educational information, for employers, unions, and employees. Process includes certification of unions, resolving disputes, conciliation, and how to file complaints.

VII. Vignette Saskatchewan Labour Relations Board: An Illustration of What Labour Relations Board Do Many people have heard of a labour relations board, knowing these boards relate to unions. Others involved with unions are more familiar yet have not directly worked with a board.

An example of what labour relations board do comes as The Saskatchewan Labour Relations Board heard the case of Signal Industries. Signal decided to close its sign manufacturing plant in Regina. Signal industries planned to produce its signs at their Edmonton plant as this plant was more efficient. Signal then notified the Regina employees of the closure with the union responding that this closure was a technological or organizational change within the Saskatchewan Employment Act (SEA) and provided a notice to bargain a workplace adjustment plan. “Signal proceed to close the Regina plant 86 days after receiving the notice to bargain. The union then filed an unfair labour practice application claiming that the employer had breached the SEA by closing the plant at a time prohibited by the technological and organizational change provisions of the SEA.”

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This closure was then reviewed by the Saskatchewan Labour Relations Board who determined that as Signal Industries transferred work to Edmonton, it was an organizational change that affects the employment of a significant number of employees. The Board concluded that the in fact the employer had decided to close the Regina location before informing the union, and Signal’s refusal to reconsider the closure decision did not mean it had bargained in bad faith.

Therefore, Signal was not required to continue to operate its Regina plant.

VIII. Case Incident: Red Lobster v. United Food and Commercial Workers, Local No. 401 1. Which roles of government illustrated here?

The main roles of government referred to in this chapter are the employer and regulator roles.

Here the government's main role has been to assist the union and employer maintains the viability of the operation.

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CHAPTER 6 UNION ORGANIZING DRIVE AND CERTIFICATION Preface In this chapter, students will explore why employees join unions and the rules related to how union support is measured. The legal framework regarding unfair labour practices and remedies will also be reviewed. Finally, they will consider how a union can lose the right to represent employees and what happens if the employer sells the business that includes one or more bargaining units.

Learning Objectives 6.1 6.2 6.3 6.4 6.5 6.7 6.8

Explain reasons why employees may, or may not, want to join a union.

Outline how a union could obtain bargaining rights.

Outline the steps in a union organizing campaign and application for certification.

Outline the factors determining and the significance of the bargaining unit.

Outline the process to deal with unfair labour practices at certification and the remedies available.

Explain the grounds and procedure to terminate a union’s bargaining rights.

Outline successor rights and the effect of a sale of a business on a union’s bargaining rights.

Outline/Table of Contents

I. Why Employees Decide to Unionize II. Why Employees Do Not Join a Union III. External Factors Affecting Unionization IV. How Bargaining Rights Are Obtained and Their Significance V. Union Unfair Labour Practices VI. Review Questions VII. Discussion Questions VIII. Web Research IX Vignette X. Case Incident I.

Why Employees Decide to Unionize

Unions are in the business of representing employees who at some point became so unhappy with their jobs and workplace conditions that they sought out an external advocate to represent them as a collective group to their employer. The reasons why employees join unions and maintain union membership are important to both unions and employers. The factors affecting an individual employee’s decision whether to support a union are important to the union when it determines how to persuade employees to join. If the union addresses issues of greater interest to employees and is able to set aside employee concerns about unionization, it is more likely to be successful in an organizing campaign. .

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Canadian labour laws allow the individual employee to express their desire to, or not to, become a union member when a possible shift from non-union to union status is underway. Many of the affected employees are interested in what a union has to offer to improve their work lives. Others may be indifferent or are uninformed about to the possibilities. Another segment of the workforce will be opposed to becoming a union member. This collection of personal viewpoints is shaped to a certain degree by one or more factors that motivate the choice that each employee makes in a proposed bargaining unit. Employers may have an ability to change internal factors such as wage rates or working conditions, however, external factors such as the state of the economy or community and family attitudes toward unions are beyond the employer’s control.

POOR SUPERVISION Not all supervisors possess the desired level of skills, knowledge and abilities (KSAs) to direct others. Employees who encounter indifference or hostility from their manager become frustrated due to an inability to address concerns related to their jobs and working conditions. Some employees may perceive that they are being harassed or intimidated by their manager. Their experience with their manager, who may not have been adequately selected or trained, may lead them to believe that a union will help them resolve this issue.

COMPENSATION Many employees join a union to obtain improved wages and benefits.

Statistics Canada reported an average weekly earnings of $1308.47 for unionized employees compared to $1219.70 for non-union employees Further, the number of Canadians covered by a pension increased to approximately 6.5 million Canadians. More specifically, more than 70% of unionized employees have a pension compared to just 30% of non-unionized employees with a pension. https://iupat.on.ca/blog/how-unions-help-workers-with-retirement-benefits-than-nonunionized-worker/ UNFAIRNESS AND INEQUITY Non-union employees may experience unfair treatment by management. This may occur when some employee requests are denied while allowed for other employees. For example, job postings that are not available to internal employee applicants to apply to may also appear to be unfair treatment by the organization. In addition, the amount of compensation received by an employee may appear to be unfair relative to peers or similar jobs in the organization. If employees perceive that there is an inequity related to rewards for their effort, and have not received a response to their concerns in such matters, they may think that unionization is the way to achieve fairness.

JOB SECURITY Today’s multi-generational workforce agrees on one thing: job security is a very important aspect of the work environment. Notably, this workforce is also concerned with ethical employers whose values align with their own along with job security.

If employees are not unionized, the employer can terminate employees even though there is no employee misconduct, as long as reasonable notice is given. If a non-union employee is not provided with sufficient notice, they can seek monetary damages by filing a claim in civil court, but they may not seek reinstatement to their job. There is an exception in three jurisdictions: Canada (federal), Nova Scotia and Quebec. On the other hand, in a unionized workplace the collective agreement will provide that employees can only be terminated if there is just cause. A termination may be the subject of a grievance, and an arbitrator might eventually hear the matter and order reinstatement. The requirement for just cause to terminate a unionized employee and the possibility of reinstatement provides unionized employees with additional job security. .

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In the event of a loss of business, organizations may be forced to layoff employees. Without a union, the employer may layoff whomever it wishes. Although some non-union employers apply seniority rules, so that those with the longest service record are last to be laid off, there is no legal requirement that they do so. In a unionized workplace, although seniority is not the only consideration governing layoffs, employees who have more time on the job have more job security.

Technological changes and contracting out or outsourcing also pose threats to employees’ job security. Contracting out refers to the employer arranging for work to be done by the employees of another organization or independent contractors. For example, an employer operating a hotel might eliminate the jobs of some of its housekeeping staff if it contracted out the cleaning of the common areas of the building. Although unions cannot guarantee that technological change or contracting out will not affect employees, collective agreements may contain terms that provide some protection against job loss.

WORKING CONDITIONS There are numerous working conditions that employees may perceive would be improved if a union represented them. Employees may pursue unionization to obtain greater notice for scheduled hours, to obtain a fairer distribution of shifts, or because of concerns with health and safety. This dissatisfaction is created when there is conflict or dissonance between the employee’s expectations of work and the experiences of work. The mere belief that unions will be successful in closing this conflict between expectations and experiences regarding workplace conditions is known as instrumentality. Several of the remaining factors and conditions are related to this tension between employee expectations and experiences on the job.

Instrumentality is the perception that a union will be able to successfully help employees achieve desired terms and conditions in the workplace.

It is common for union organizers to promise that better working conditions come with joining a union. This was evident in New Brunswick when the nursing home employees unionized largely to improve working conditions according to the president of the New Brunswick Council of Nursing Homes Unions (NBCNHU). Survey respondents were asked to indicate the actions taken to resolve their most recent incident of harassment or violence—whom they notified about the incident, who helped resolve the issue, processes used to resolve the issue, as well as the outcome of the incident and satisfaction with the outcome. Around 75 percent of survey respondents who experienced harassment or violence took action—but 41 percent of them reported that no attempt was made to resolve the issue. Most respondents who acted to address their experience faced obstacles when trying to resolve the issues. Satisfaction with how incidents of harassment and violence were resolved was low. Online respondents stated they acted to address their experiences with harassment or violence; most discussed the matter with a co-worker (64%) or with their supervisor (58%). Relatively few respondents discussed the matter with a human resources management professional (22%) or with the workplace committee or health and safety representative (12%). About half of respondents who reported their incident indicated that the issue was not resolved. Those incidents that were resolved tended to be resolved by unions (21%), supervisors (20%) or co-workers (19%). Very few matters were .

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resolved by a workplace committee or health and safety representative (3%). Respondents were asked about the types of processes used to resolve their most recent incident. Just over 40 percent indicated that no attempt was made to resolve the issue.

WORKLOAD Economic pressures have forced employers in both the public and private sectors to try to do more with less. Many employees have likely encountered increased workloads including assembly line speedups or increased workloads after a downsizing. In the public sector, health care workers have been required to look after more patients, and teachers may have encountered larger class sizes. Employees may perceive that joining or maintaining their membership in a union will help them counter attempts by employers to increase their workload.

INPUT IN ORGANIZATIONAL POLICYMAKING Some employees may want input into policy decisions made by their employer. Teachers may want a voice in decisions made by school boards such as class sizes that affect students. The importance of employees’ perspective upon policy decisions became evident during the COVID-19 pandemic when elementary school teachers were concerned about class sizes as larger class sizes made social distancing difficult to prevent further infections. Employees may find that their concerns are not addressed. Some employees may pursue or maintain unionization for the purpose of establishing a collective voice, which the employer is more likely to listen to.

INEFFECTIVE COMPLAINT MECHANISM There is no legal requirement for non-union employers to establish complaint mechanisms for employees to resolve workplace issues. Nonunion employees may hear about employees filing grievances through their union representatives and winning disputes with employers. In the non-union workplace, there is no way to challenge legal management directives. Employees may perceive that the grievance and arbitration process found in collective agreements will provide them with a means to challenge some management decisions.

EMPLOYER POLICIES Some employers have adopted union substitution and avoidance strategies, which are aimed to reduce employees’ desire to unionize. By establishing practices such as complaint mechanisms, employee involvement programs and providing compensation equivalent to unionized employers, the employer may be able to reduce the likelihood of employees seeking unionization.

II.

Why Employees Do Not Join a Union

In view of the fact that roughly one-in-three Canadian employees are union members, and not all union members have chosen union membership voluntarily, there must be reasons why employees do not unionize.

UNION DUES Some employees may object to joining a union because they do not want to pay union dues. They may think that they will not receive service from the union that is worth the dues they will have to pay.

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POLITICAL AND SOCIAL ACTIVITIES OF UNIONS Unions have supported political parties and social causes that some employees do not agree with. Many unions have supported specific political parties at the federal, provincial, and territorial levels. Unions have also taken up social causes such as affordable housing, anti-bullying programs and protection of minority rights. Some individuals may not be willing to support or be associated with these political and social movements.

STRIKES Some employees may associate unions with strikes. Strikes present a time of lost earnings for the union member. Depending on the financial security of the employee and their family, the threat of not earning income from their job for an uncertain period of time may make the employee not want to join a union. Although strikes in Canada are rare events, employees may fear the economic hardship caused by a strike.

LOYALTY TO THE EMPLOYER In the age of downsizing and outsourcing, the notion of loyalty to one’s employer seems to be a challenged sentiment. However, some employees may feel an obligation to their employer and that joining a union is a deliberate act of disloyalty to their manager or employer. Some employees also see unionization as limiting their ambitions to move into a management role, perceiving that if they support a union they may be harming their careers.

CONFLICT Many employees prefer to work in a cooperative setting. They may have observed or heard of the adversarial nature of some unionized workplaces, and they do not think that they would be comfortable in that type of setting, particularly if this adversarial tone is linked to the union’s presence in the organization.

MERIT Some employees may perceive that if compensation, benefits, and promotion decisions are made on the basis of merit, or their KSAs and performance, they will succeed.

They may fear that a uniform compensation system, which most collective agreements provide for, and the application of seniority rules in a unionized workplace, will not be to their advantage.

PERCEPTIONS OF UNION MEMBER WORK HABITS AND ATTITUDES Some employees may perceive that unions protect lazy and incompetent employees. Those sharing these sentiments would be reluctant to have to carry these unproductive employees yet still receive the same wage rates as their underperforming work colleagues.

FLEXIBILITY Employees may perceive that a collective agreement involves an inflexible set of rules and terms of work including set hours, start times and vacations. They would prefer to maintain their ability to negotiate their own terms and conditions of work with the employer.

EMPLOYER RETALIATION Some employees may wish to pursue unionization, but they fear that their employer may retaliate. During this period, employees may shy away from becoming directly involved in the organizing campaign, fearing their involvement may attract some form of sanction by the employer; for example, by less desirable shifts, job reassignments or loss of privileges due to their pro-union support.

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JOB LOSS During the COVID-19 pandemic, small minority of truckers and none of their formal representatives and others formed the Freedom Convoy to content the pandemic restrictions in Canada. This protect blocked the Canada-US Ambassador bridge for a period of time, resulting in supply chain disruptions, lost auto sector revenue, and potential Canadian auto worker job losses. The concern for these Canadian auto jobs came as Americans were advocating to return the materials supplied to the auto sector back to the US to avoid such a future disruption.

LACK OF OPPORTUNITY TO UNIONIZE Some employees do not have an opportunity to pursue unionization even though they would like to do so. The history and culture of particular regions of Canada create a legislative environment that makes it more difficult to certify a new union local than in other parts of the country. Some industries, such as banking, have lower levels of unionization because of employer opposition, legal rules or other factors.

III.

External Factors Affecting Unionization

External factors such as cultural values or government policy may affect an employee’s decision regarding unionization.

ECONOMIC FACTORS Employment trends in the first decades of the 21st century continue to challenge the conflict between employees’ expectations of work and their actual experiences on the job. During periods of inflation, employees may perceive that a union may help them protect their real incomes. Employees may observe cost-of-living provisions that unions have been able to negotiate in some collective agreements during periods of inflation. In a recession, higher unemployment rates might prompt concerns regarding job security, causing employees to seek unionization.

ATTITUDES TOWARD UNIONS Some employees have attitudes toward unions shaped by news and social media as well as the attitudes and experiences of family members that influence their individual preference or dislike for union affiliation. It has been noted that a significant number of Canadians do not have positive attitudes toward unions. However, public opinion varies with the political and economic situation over time.

IV.

How Bargaining Rights Are Obtained and Their Significance

The acquisition and retention of bargaining rights by a union is critical to the labour relations system. A union can obtain bargaining rights in two ways: by being voluntarily recognized by the employer or by applying to a labour relations board and obtaining a certificate that grants the union the right to serve as the exclusive bargaining agent for employees.

A voluntary recognition agreement is an agreement between a union and an employer providing that the employer recognizes the union as the bargaining agent for a group of employees. As the name suggests, the employer cannot be forced to recognize the union. Voluntary recognition agreements are not common. Employees do not have to consent to the recognition, and there is a procedure available to employees to terminate the union’s bargaining rights if they object to the recognition. .

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Certification of a Union To be certified, the union must conduct an organizing campaign to have employees join the union and then make an application for certification to the labour relations board.

Most unions gain bargaining rights by certification. Labour relations legislation provides a certification process whereby a union may obtain the right to represent a group of employees by applying to a labour relations board. If the union is successful, the board issues a certificate that affirms the union as the exclusive bargaining agent for the employees holding the jobs specified in the certificate. The term certification refers not only to the process through which a union applies to the board but also to the end result of the process; for example, there may be reference to the fact that there has been certification of a union. Once a union has been certified, it has the right to represent employees until the Board terminates that right.

The certification process is a way for a union to obtain bargaining rights for employees by applying to a labour relations board. When a union is certified, there are significant consequences for the employees and the employer. The union becomes the exclusive bargaining agent for the employees, who are no longer able to enter into, or retain, individual contracts of employment with the employer. For example, the employer could not make an individual agreement with the employee that they could be granted an additional week’s vacation. When a union has been certified, there is also a duty to bargain in good faith—to honestly attempt to reach a collective agreement. Labour relations legislation in each jurisdiction governs the certification process, the conduct of the parties and how bargaining rights can be lost. Employers and unions should be familiar with the legislation that governs them. Although the basic principles relating to the establishment and termination of bar-gaining rights are the same across jurisdictions, there are some differences between jurisdictions.

Organizing Campaign An organizing campaign refers to the union’s attempt to persuade employees that they should become union members. Such a campaign will typically start after employees contact the union and request its assistance. The union will assign a union organizer to the campaign, a person on the staff of the union who attempts to sign-up enough employees as members for an application for certification. Some unions attempt to use union organizers for the campaign who speak the language of the workplace and have similar work experiences and background. Unions have moved away from relying exclusively on full-time staff organizers toward using some organizers who are employees from another workplace on a temporary assignment. A union trains workers who take time off from their jobs to work as union organizers. It has been established that when the first contact between the union and the workplace being organized is made by a person from another workplace, the success rate of organizing drives is increased. An organizing committee will likely be established—a group of employees who support the union and work with the union organizer. Members of the organizing committee attempt to have their co-workers sign on as union members. The use of an organizing committee increases the chances of success in an organizing campaign. Organizing committees are more effective when they effectively communicate, educate the employees of their workplace rights, collects employee feedback, and build an organizing strategy. Importantly, the organizing committee must represent the diversity of the workforce. .

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Some campaigns are conducted openly. The union may advise the employer about the upcoming organizing campaign and the right of employees to join a union without interference from the employer. It is more common for the union to keep the campaign secret for as long as possible to avoid a negative response by the employer. The organizing campaign might involve distribution of paper and digital communication to employees outlining the advantages of unionization and hosting information meetings away from the workplace. In particular, it is important for unions to use websites and social media to provide information to employees to persuade them to become union members.

Members of the organizing committee will speak to employees at break times or after work hours and to have them to sign membership cards. Organizers or organizing committee members may visit employees at their homes. The union attempts to get as many employees as possible in the proposed bargaining unit to sign cards. Employees may have to make a small payment to become a member, depending on the jurisdiction. In five jurisdictions—British Columbia, Manitoba, Newfoundland and Labrador, Ontario and Saskatchewan—no fee or payment to join a union is required; in other jurisdictions, there is a nominal membership fee ranging from one to five dollars. In most jurisdictions, the membership evidence must have been signed within a prescribed time prior to the application for certification being submitted to the Board. This period ranges among jurisdictions from 90 days to 12 months.

Application for Certification to Labour Relations Board If the union signs up a sufficient percentage of employees as members, it will file an application for certification to the labour relations board at the federal, provincial, or territorial jurisdiction.

Some boards provide guides or other useful information regarding certification. When the union applies to the board, it will have to establish that:  it is a trade union as defined in labour relations legislation;  the application is timely;  the group of employees specified in the application is an appropriate bargaining unit; and  the union has adequate support of employees in the proposed unit.

STATUS OF THE APPLICANT TRADE UNION Labour relations legislation provides that to apply for certification, an organization must be a trade union—an organization that has as one of its purposes the regulation of relations between employees and employers. The organization must not be dominated by, or influenced by, the employer and its management. A union will not have to re-establish itself as a union every time it makes an application for certification. Once it has established its union status, it will be deemed to be a union in subsequent applications unless it is proved otherwise.

Employees or a second union might oppose an application for certification on the grounds that the applicant is not a trade union because it is dominated by the employer or that it does not operate based on democratic principles that assure the right of members to exercise choice in key decision-making matters. All jurisdictions provide that an organization that discriminates on the basis of human rights cannot be certified. .

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APPROPRIATENESS OF THE BARGAINING UNIT A union cannot apply for certification for just any group of employees. The legislation requires that the application must relate to a group that is appropriate for collective bargaining. In the case of a hotel, the union could not submit an application for only some of the kitchen staff.

Bargaining units are often described by exception; that is, the description refers to a group of employees and then lists jobs that are not included in the unit. A bargaining unit composed of production workers might be described as follows: “All employees of [employer] save and except forepersons, persons above the rank of foreperson, office staff, security guards, and technical employees.”

It is important to note that the bargaining unit is described in terms of jobs, not employees, meaning that the death, termination or retirement of employees does not affect the scope or composition of the bargaining unit. Labour relations legislation provides some rules regarding the appropriate bargaining unit; however, each labour relations board has developed its own guidelines. Standard approaches to the determination of the appropriate bargaining unit in particular industries have developed in each jurisdiction, with significant variations across jurisdictions. Manage-rial employees and employees engaged in a confidential capacity regarding labour relations matters cannot be included in a bargaining unit. In some jurisdictions there are additional restrictions on combining specified occupational groups, such as security guards, with other employees in one bargaining unit.

If some employees who should be included in the bargaining unit do not support unionization, the union cannot just omit them. The appropriate bargaining unit is ultimately determined by the labour board after allowing the employer and any interested employee(s) an opportunity to make representations to the board regarding the appropriateness of the proposed unit.

EMPLOYEE STATUS AND EXCLUSIONS To be eligible for unionization, a person must be an employee, not an independent contractor— someone engaged in their own business. In some cases, this may be difficult to determine.

Independent contractor is someone engaged in their own business. For example, someone who uses their own equipment to remove snow from residential driveways and charges each household an amount based on the size of the driveway is clearly an independent contractor.

Someone who works for an organization and uses the organization’s equipment to remove the snow from its parking lot as one of their duties is an employee. There will be situations where the status of an individual doing work is not clear. For example, in one case there was a dispute relating to an individual who was responsible for cleaning a library. The individual charged a monthly fee; anyone could do the work; there were no directions given regarding the work; and they were free to work for others. The union contended that the individual was an employee and the employer submitted that she was an independent contractor. Ultimately the labour relations board found that the individual was an independent contractor. If an employer challenges the employee status of an individual, the issue will be determined by the labour relations board.

Dependent Contractors It has been recognized that if labour relations boards only applied the common law tests to determine if an individual was an employee, some workers would be found .

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to be independent contractors, when in fact they are just as dependent upon a particular organization as an employee would be. This would mean that these individuals would not have access to unionization. For example, persons who own and drive their own taxis or delivery vehicles might be viewed as independent contractors. In five jurisdictions (Canada, British Columbia, Newfoundland and Labrador, Ontario, and Prince Edward Island), labour relations legislation provides for the concept of a dependent contractor. The definition of a dependent contractor is similar across these jurisdictions; an example from the British Columbia Labour Relations Code is as follows: [A] person, whether or not employed by a contract of employment or furnishing their own tools, vehicles, equipment, machinery, material or any other thing, who performs work or services for another person for compensation or reward on such terms and conditions that they are in relation to that person in a position of economic dependence on, and under an obligation to perform duties for, that person more closely resembling the relationship of an employee than that of an independent contractor.

The definition of employee in the legislation provides that individuals who are dependent contractors are employees. This should be viewed as a statutory extension of the definition of employee for the purposes of labour relations. The result is that some workers who would otherwise be found to be independent contractors fall within the definition of an employee, and they can join or form a union.

Even in jurisdictions without a dependent contractor provision in the legislation, someone economically dependent upon a single organization might be found to be an employee. For example, although the Alberta legislation does not provide for dependent contractors, taxi drivers in that province who are dependent upon a single organization have been found to be employees.

Each case dealing with the issue of employee versus independent contractor status must be considered on its own merits.

Managerial Exclusion All jurisdictions provide that managerial employees are excluded from unionization in order to avoid a conflict of interest. Managerial employees may be involved in the determination of how the employer will negotiate with the union or the settlement of disputes regarding the interpretation of the collective agreement. Accordingly, they should not be part of the union to avoid a conflict of interest. The application of the managerial exclusion varies between jurisdictions and in some jurisdictions more employees are classified as managers.

Labour relations legislation does not define manager or managerial functions. When a Labour relations board determines whether an employee is a manager, the employee’s real job or actual duties are examined. A job title that refers to an employee as a manager does not decide the question. Similarly, a board will consider the job description to determine if it accurately reflects the authority exercised by the employee. If the job profile refers to duties including employee recruitment, selection, and performance management, but in reality the employee does not become involved in these tasks, they will not be recognized as a manager. The employee will be recognized as a manager if they have a direct impact on the terms of employment of others. By direct impact the labour board is looking for evidence of the authority to recruit, select, and compensate, or manage the employee performance. The job in question may also be viewed as .

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management if the employee makes effective recommendations regarding the terms of employment of other employees. In some jurisdictions, employees may be classified as a manager if they are involved in independent decision-making and have authority over matters of policy or the direction of the organization, even though they do not have employees reporting to them. A distinction must be drawn between supervisors and managers. If the supervisor does not exercise managerial functions they would be eligible for unionization. Any potential conflict between supervisory and non-supervisory employees can be alleviated by putting the supervisory employees in a separate bargaining unit, which is sometimes seen in unionized public-service unions.

Exclusions of Employees Engaged in a Confidential Capacity Regarding Labour Relations All jurisdictions except Quebec exclude employees working in a confidential capacity relating to labour relations. This exclusion applies when employees have more than just access to information. They must actually be involved in the use of the information for the exclusion to apply.

This exclusion is aimed at avoiding a conflict of interest. It would not be practical to have the administrative assistant to the director of labour relations, who prepares alternative contract proposals that will be presented to the union during collective bargaining, to be part of the union.

Occupational Exclusions In some jurisdictions, employees are excluded from unionization on the basis of their occupation. In Alberta, New Brunswick, Nova Scotia, Ontario and Prince Edward Island, specified professional employees such as members of the architectural and medical professions employed in their professional capacity are prevented from joining or forming a union. For example, members of the engineering profession are allowed to unionize in most jurisdictions, but not in Alberta, Nova Scotia or Prince Edward Island. The legislation in Alberta and Ontario prevents agricultural employees from unionizing. The policy reasons for these exclusions are not clear.

DEFINITION OF AN EMPLOYER When a union applies to be certified as the bargaining agent for a group of employees, it must name the employer. In some cases, a question might arise as to whether the organization named is in fact the employer. For example, when a temporary help agency provides workers to a unionized employer, are they employees of the agency or of the agency’s client?

The Ontario Labour Relations Board has set out seven factors that may be referred to when determining which of two organizations is the true employer.

Labour board decisions have confirmed that where one organization is responsible for the compensation of the worker and another organization has the day-to-day control over the worker’s activities, the organization exercising control will be found to be the true employer.

Workers who have been engaged and paid by an employment agency and who are working under the control of a client of the agency have been found to be employees of the client for labour relations purposes.

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TIMELINES: WHEN CAN AN APPLICATION FOR CERTIFICATION BE MADE There are restrictions on when an application for certification can be filed that depend on whether employees are currently represented by a union. A key consideration here is the open period. This timeframe provides the employer with a stoppage in union certification drives until near the end of the collective agreement, typically the last three months of the current contract.

This timeframe also allows a newly certified union a period of time to establish a relationship with a new employer and to demonstrate its effectiveness as an advocate for members of the bargaining unit.

Rules governing open periods vary by jurisdiction in Canada. Generally, if no union currently represents employees, the general rule is that an application for certification can be filed at any time. There is a different set of restrictions that could affect the timing of an application for certification when employees are currently represented by a union. The effect of the certification of a second or raiding union on any collective agreement that has not yet expired also varies across jurisdictions. Conciliation or mediation processes in contract negotiation, might delay an application for certification depending upon the jurisdiction. Also, a strike or lockout could delay an application for certification in some jurisdictions.

SIGNIFICANCE OF NATURE AND SIZE OF THE BARGAINING UNIT The determination of the appropriate bargaining unit is important to the union, the employer and the employees. The nature and size of the unit deemed appropriate can affect whether the union is certified and the subsequent negotiation of the collective agreement if the labour board does indeed certify the union.

At the time of the application, it may be easier for the union to apply to represent a smaller unit.

However, when the union negotiates with the employer, it will be in a stronger position if the bargaining unit is larger in total membership. The banking industry illustrates this situation. Prior to 1977, the Canada Labour Relations Board refused to recognize the employees at a single bank branch as an appropriate bargaining unit, agreeing with the employer that the minimum size should be recognized in all the branches in a particular geographic area, such as a city. As a result, there were very few successful organizing drives. The Board realized that this policy was a barrier to establishing collective bargaining in the banking industry and changed the policy to allow a single branch to be an appropriate unit. This new policy made it easier for unions to be certified. Yet it also led to the establishment of small bargaining units that had to negotiate on their own with the employer. In some cases, the units were not large enough to successfully negotiate a collective agreement. If employees in the new bargaining unit who have more skills and expertise are not included, the union’s bargaining power is reduced because a unit composed of a small number of unskilled employees could be easily replaced if there is a strike. The fact that there are still very few unionized bank employees demonstrates how setting an appropriate bargaining unit that is too large can prevent unionization, while setting a unit size that is too small can result in an in-ability to conclude a successful collective agreement because the employer is able to resist the economic power of the union. As is the case with many labour relations issues, determining the appropriate bargaining unit is a question of balancing competing concerns and issues.

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OTHER VARIABLES AFFECTING DETERMINATION OF THE BARGAINING UNIT In some situations, there may be several possible options in the formation of bargaining units at the time of certification, some of which may be more appropriate than others. The union does not generally have to establish that the unit it proposes is the most appropriate one. A labour board will certify a bargaining unit as long as it is appropriate for collective bargaining even though there could be other, more appropriate ones.

The key determinant of whether jobs or classifications should be included is the community of interest of the employees in the proposed unit although this concept is not exact. The British Columbia Labour Relations Board has referred to community of interest and the determination of the appropriate bargaining unit as follows: “community of interest is capable of spanning, at a single workplace, several different appropriate bargaining units.” There is an inherent flexibility or elasticity to the concept.

A key determination that will have to be made is whether part-time and full-time employees have a sufficient community of interest to put them in the same bargaining unit. Although there may be separate bargaining units certified for full-time and part-time employees, the units might negotiate collective agreements at the same time.

Generally, the union cannot carve out a particular department or a job classification as an appropriate bargaining unit. In a case where a union applied to be certified to represent registered nursing assistants at a hospital and did not include other service employees such as ward clerks and housekeeping aides, the Board found that the bargaining unit proposed was not appropriate.

An exception to this general rule is found in the skilled trades—millwrights, electricians and other craft-based occupations have traditionally been represented by a craft union that have been permitted to be in a separate bargaining unit.

If the employer has more than one location in a municipality, province or territory, it must be determined if the bargaining unit should include multiple locations. If a board determines that the bargaining unit will include all locations in a municipality, province, or territory and the employer moves within the municipality, province or territory, the union continues to hold the right to represent employees. It also means that if the employer establishes a second location in the same municipality, province, or territory, the second location will be covered by the certification, and the union will represent the employees there.

Avoiding fragmentation is a major factor in the determination of the appropriate bargaining unit.

If a board allowed several smaller bargaining units to be established, there might be conflict between different unions, and several negotiations and possible strikes. One of the goals of a labour relations board will be to prevent the situation of an employer having multiple unions and bargaining units to deal with—a situation that could cause major instability in the workplace, as unions contested with other unions for jurisdiction and the employer might be in constant negotiations with one or another of the unions.

Although the preferences of the union and the employer are a factor, they do not determine the appropriate bargaining unit. Some boards have established a unit different from the one agreed upon by the union and the employer. The preference of the union has more significance because .

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the union will set out a proposed bargaining unit in the application for certification, and the unit only has to be appropriate for bargaining, not the perfect unit. Boards carefully consider the possibility that the determination of the bargaining unit could cause labour relations problems for the employer. Boards do not want to establish bargaining units that would result in employees moving back and forth between two different bargaining units or between a bargaining unit and a group of unorganized employees.

Determination of Union Support CERTIFICATION ON THE BASIS ON A REPRESENTATIVE VOTE In order for a union to be certified, it must show that it has the support of a majority of employees. There is an important policy issue on the question of how support of employees is determined. In some jurisdictions, legislation provides that employee support must be determined by a representation vote. A representation vote is a secret ballot vote conducted by the labour relations board to determine if employees want a union to represent them. The vote is held shortly after the application for certification is filed in order to minimize the opportunity for employers to interfere. In some jurisdictions, the vote is held within five days of the application for certification being filed and the ballot box is sealed pending the resolution of issues such as the eligibility to vote. It has been shown that requiring a representation vote reduces the success rate of union organizing efforts.

In two jurisdictions—British Columbia and Saskatchewan—a representation vote is mandatory, regardless of the level of support for the union shown in the application. In a few jurisdictions, a minimum percentage of employees must vote for the election to be valid. In most jurisdictions, the results of the representation vote are determined by a majority of those who actually do vote; the union does not have to obtain the support of the majority of those eligible to vote. For example, if 100 employees in the bargaining unit are eligible to vote and 80 employees actually vote, the union would have to obtain 41 votes in support of joining the union to be certified in most jurisdictions. Accordingly, employees who do not want to see the union certified must actually vote against the union.

CERTIFICATION ON THE BASIS OF MEMBERSHIP CARDS As seen in Figure 6-6, there are eight jurisdictions—Canada, Alberta, Manitoba, New Brunswick, Newfoundland and Labrador, Ontario, Prince Edward Island and Quebec—where a union can be certified without a representation vote if the membership cards filed with the application establish the required support of a specified percentage of employees in the proposed bargaining unit. If the union does not have the level of support required for certification based on membership cards, but shows it has the minimum support required for a vote, the Board will order a representation vote. For example, in Manitoba the Board will certify the union without a vote if it establishes that it has the support of 65 percent or more employees and will order a vote if the union has the support of less than 65, but more than 40, percent of employees.

The question of whether support for the union should be determined on the basis of member-ship cards or a representation vote is a critical issue that has been extensively debated. Employers favour a system in which a vote is required; unions prefer reliance on membership cards without a vote. The requirement for a representation vote is based on the premise that the true wishes of .

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employees cannot be determined unless there is an opportunity for employees to secretly express their preference by voting. It is argued that without a secret ballot the union can exert pressure on members or that those signing membership cards may not fully appreciate the consequences of their actions. Proponents of mandatory voting go on to say that Canada uses a secret ballot system to choose political representatives and determine other issues, and therefore a similar process should also be used to resolve the question of union representation in the workplace.

Proponents of a card system argue that the workplace is different from society as a whole because the authority and power are held by the employer. They maintain that if there is a vote, employees may be threatened or unduly influenced by the employer.

Conduct During Organizing and Certification Processes It is a basic principle of our labour relations system that employees have the right to join or decline to join a union, free of any intimidation or coercion by either the union or the employer. To protect this basic right, labour relations legislation prohibits certain employer and union conduct.

An unfair labour practice is a contravention of the relevant labour relations legislation by an employer, union, or employee.

Unfair labour practice is a contravention of labour relations legislation by an employer, union or employee. Note that the term unfair is not a reference to a subjective opinion about whether certain conduct is fair. The issue is whether the conduct is prohibited by legislation. An employer might have a practice of providing wage increases to its non-union employees when a unionized competitor agrees to wage increases with its union. The purpose of this practice may be to avoid unionization. This conduct is not an unfair labour practice, because it is not prohibited by labour relations legislation. Even though the employer’s practice is aimed at preventing unionization and may appear to be unfair to union supporters, it is not deemed an unfair labour practice because the legislation has not been violated. However, an employer who provides an out-of-theordinary wage increase at the time of a union organizing campaign is committing an unfair labour practice, because this conduct is prohibited by labour relations legislation.

Although Canadian labour relations statutes are similar, it is possible that conduct that is an unfair labour practice in one jurisdiction may not be an unfair labour practice in another jurisdiction. For example, soliciting union members during working hours is an unfair labour practice in most, but not all jurisdictions. Conduct that is an unfair labour practice at one point in time may not be an unfair labour practice at another point in time because of changes in the legislation. In most jurisdictions, there is a provision that the employer has the right to express an opinion or exercise free speech, provided it does not threaten or coerce employees. At one time, there was no free-speech provision in the Canada Labour Code. The Canada Industrial Relations Board held that this meant that employers were required to remain neutral during an organizing campaign. The employer was allowed to respond to union campaigning that was defamatory, but the reply could not go further and include statements that might be viewed as campaigning for a vote against the union. This was changed when the Code was amended to add a provision that employers could express their views.

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Although most unfair labour practices arise during the organizing campaign and certification process, the term has broad meaning. An unfair labour practice might also occur during the negotiations of the collective agreement, or during the administration of the agreement, because one of the parties contravenes labour relations legislation. The legislation includes the duty to bargain in good faith, as well as the union’s duty of fair representation in the course of administration of the contract.

Employer Unfair Labour Practices The legislation prevents two broad categories of employer behaviour: (1) threats, intimidation and coercion and (2) interference or influence by the employer. Most observers would agree that threats, intimidation and coercion by employers should not be allowed, including actions such as firing union supporters, interrogating employees regarding their possible support for a union, transferring union supporters and threatening to move or shut down operations if the employees unionize. It may be more difficult to understand why some employer conduct, such as a change in working conditions in the face of an organizing campaign, is an unfair labour practice.

CHANGES IN WORKING CONDITIONS Labour boards have held that employers who have changed working conditions in response to a union organizing campaign have committed an unfair labour practice. The basis for this is that the legislation prohibits employers from interfering with the employees’ decision regarding unionization. This prohibition is not limited to changes in compensation, but includes any changes made for purposes of influencing the employees’ decision.

Changes made by an employer in response to a union organizing campaign might be viewed as threatening because of the possible inference that future benefits or improvements depend up-on the employees not supporting a union. Employers are not allowed to make promises tied to the defeat of the union. For example, a promise to provide longer vacations if the union is defeated would be an unfair labour practice.

STATUTORY FREEZE The legislation in all jurisdictions specifically prohibits the employer from making any changes in the terms of employment when an application for certification is filed with the board or the employer is notified of the application. This prohibition on changes is known as a statutory freeze. The freeze does not prevent the employer from making any changes; it prevents changes that are not business as usual. For example, if the employer has an established practice of providing wage increases at a particular time of the year, it would be required to provide the wage increase during the freeze. However, it would be a violation of the freeze to provide the wage increase earlier than was normally done. Employers who have changed the method of payment from cash to cheque, failed to schedule overtime in accordance with past practice and altered rules regarding access to and use of phones have been found guilty of violating the freeze provision.

The knowledge or expectations of employees are factors affecting whether the employer has violated the statutory freeze. Where the employer has decided to implement a change but has not communicated the change to employees before the freeze begins, that change would be a violation. In one case, the employer informed employees of a benefit plan that had been in .

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existence but employees had been unaware of. The Board found that this was a violation of the freeze. The reason for this was that in the eyes of employees, the plan was a change. When the employer brought the plan to the attention of employees during the freeze, the employer had in effect changed their terms of employment. The employer had claimed that advising the employees about the benefit plan was exercising free speech, which the legislation allows. This case illustrates that the free speech provisions of the statute are subject to the restrictions against changing the terms of employment. Furthermore, it illustrates that employers should ensure that all employees are fully aware of all of the rights, privileges and benefits they are entitled to.

In Alberta, New Brunswick, Ontario, Quebec and Saskatchewan, the employer is allowed to make changes in the terms of employment during the freeze if it obtains the consent of the union.

The federal including Northwest Territories, Nunavut, and Yukon, British Columbia, Manitoba, Newfoundland and Labrador, Nova Scotia and Prince Edward Island legislation provides that the employer is allowed to make changes if the consent of the Board is obtained. Whether the consent must be obtained from the board or the union might be significant to the employer. In one case, the legislation required the consent of the union. The employer, in this case, a retailer, wanted to implement Sunday shopping hours in response to competition. When it requested the union’s consent, the union refused. The employer sought volunteers to work the Sunday hours.

Even though the employer had a valid business reason to open Sunday, the Board found that the change was a breach of the statutory freeze because the Sunday opening was not “business as usual” and the union had not consented to the change. In a jurisdiction where the employer can make changes with the approval of the Board, instead of obtaining permission from the union, the business case for the change could have led to the Board granting its approval.

What Employers Have Said in Response to a Union Organizing Campaign COMMUNICATING WITH EMPLOYEES Employers are allowed to communicate with employees and express an opinion regarding unionization of their employees provided they do not coerce or intimidate. In most jurisdictions, there is a provision similar to the one in the Canada Labour Code, which provides as follows: “An employer is deemed not to contravene [the Code] by reason only that they express a personal point of view, so long as the employer does not use coercion, intimidation, threats, promises or undue influence.” There are some differences between jurisdictions regarding limits on employer communication with employees.

PROHIBITING ENTRY Employers can prohibit individuals who are not employees, including union organizers, from coming into the workplace. It is also possible for employers to prohibit employees who are part of a union organizing committee from coming into the workplace during their non-working hours. However, if the employer has not previously had a rule preventing employees from returning to the workplace during their non-working hours and such a rule was introduced in response to a union organizing campaign, this might be viewed as interference with the organizing process.

PROHIBITING SOLICITATION Although employers in most jurisdictions cannot establish rules that prohibit the solicitation of union membership during non-working hours such as breaks and meal times, the employer could establish rules that prevent such solicitation during working hours. The situation appears to be different in Nova Scotia. A court decision in that province .

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indicates that an employer may be able to establish a blanket rule against solicitation of union membership on employer property covering both working and non-working hours. Enforcing such a rule would be difficult, and establishing the rule might backfire because the union could use it as an illustration of the employer being unfair.

Rules imposing restrictions against union activity may be subject to the condition that the employer has not allowed other non-work-related communication between employees in the past.

In one case, the employer had allowed members of a staff association to use the employer’s internal mail system to communicate with each other. Subsequently, after a union organizing campaign started, the employer prohibited use of the system for union-related communication.

The Board held that the employer had committed an unfair labour practice by interfering with the organizing of the union.

V. Union Unfair Labour Practices There are two possible unfair labour practices unions must avoid at certification: • intimidation, threats or coercion to compel a person to become or cease to be a member of a trade union.

All jurisdictions prohibit the union from using threats, intimidation or coercion to sign members.

Statements made by individual employees during the course of an organizing campaign may not be violations of the legislation even though similar statements would be an unfair labour practice if made by union officials. For example, if employees make statements to their co-workers that their jobs could be at risk if they do not join the union, the statements are not unfair labour practices even though they would be if made by union officials.

•

solicitation of union support during working hours.

All jurisdictions except Manitoba and Ontario expressly prohibit attempting to persuade an employee during working hours to become or refrain from becoming a union member.

Accordingly, solicitation of membership during working hours is an unfair labour practice; however, solicitation during non-working hours is permitted. It has been established that working hours do not include breaks and lunch periods even if they are paid.

The provisions in Manitoba and Ontario regarding workplace solicitation are unique and may be widely misunderstood. Instead of prohibiting solicitation during work hours, the legislation provides that nothing in the Labour Relations Act authorizes any person to persuade an employee during working hours to become or refrain from becoming a union member. Accordingly, in Manitoba and Ontario, solicitation during working hours is not automatically an unfair labour practice, and the solicitation would only be prohibited if it disrupted the workplace.

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Remedies for Unfair Labour Practices The rights and obligations provided in labour relations legislation, including the right to join a union, would be meaningless without an effective enforcement mechanism.

PROCEDURE If either the union or the employer thinks that an unfair labour practice has been committed, they may file a complaint with the labour relations board in their jurisdiction.

Referring unfair labour practice complaints to boards instead of dealing with them in the court system has at least two advantages. Individuals with expertise in labour relations will consider the complaints, and they may be dealt with faster. In the federal jurisdiction, New Brunswick and Nova Scotia, a complaint must be filed within 90 days. In other jurisdictions, the Board may exercise its discretion to refuse to deal with the complaint when there has been an undue delay.

In most jurisdictions, there is a provision for a labour relations officer, who is a board employee, to attempt to settle the complaint so that a board hearing is not required. Most unfair labour practice complaints are settled, and many are withdrawn. If a complaint is not settled or withdrawn, the Board will hold a hearing to determine whether there was a violation of the legislation and the remedy that should be provided. A hearing might take a few hours or a few weeks, depending on the number and complexity of the issues. Each side has an opportunity to present witnesses and documents as evidence to determine whether the legislation was contravened, and, if so, to propose an appropriate remedy.

BURDEN OF PROOF Labour relations legislation in most jurisdictions (Canada including Northwest Territories, Nunavut, and Yukon, British Columbia, Nova Scotia, Ontario, Prince Edward Island, Quebec and Saskatchewan) provides that where a complaint alleges an employee has been threatened, coerced or dismissed because of union activity, the onus of proof is reversed and placed on the employer. The employer must establish there was no violation of the legislation. In the case of a dismissal, the employer will have to show there was a reason for the dismissal other than union activity. When a union supporter has been dismissed, the board will carefully determine if the explanation provided by the employer is credible.

REMEDIES If the labour relations board determines that unfair labour practices have been committed during the organizing campaign, it might order one or more of the remedies.

Most unfair labour practice complaints during the organizing campaign are allegations of employer misconduct such as threatening employees, interference with the union and the discharge of employees involved in union activity. The purpose of the remedy a board grants is to compensate the victim and deter future misconduct, not to punish the party who has violated the legislation.

Cease and Desist Order One of the most common board orders is a cease and desist order, which directs the employer to stop violating the legislation. For example, employers have been ordered to cease and desist from questioning employees about union involvement. Similarly, a Board could make an order that prohibits future unlawful conduct.

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Reinstatement of Discharged Employees Where it is found that employees have been terminated because of their union activity, the Board will order them reinstated.

Compensation or Damages A labour board will order the innocent party to be compensated for any financial losses flowing from the unfair labour practice. This action, often referred to as making whole, attempts to put the innocent party in the position they would have been in if the legislation had not been violated. Employees who have been discharged for union activity will be awarded compensation equivalent to their lost earnings, in addition to reinstatement.

However, discharged employees have a duty to mitigate or take reasonable steps to reduce their loss. Any monies an employee earned or could have earned after they were dismissed will be deducted from any damages awarded. Boards have also awarded compensation to unions when they have incurred additional costs in countering unfair labour practices of the employer. For example, unions have been awarded the costs of printing additional materials to respond to employer threats of moving the business in the face of an organizing campaign. If a board orders the employer to pay compensation for lost earnings for an earlier period, the board will also order that interest also be paid on the amount owing.

Making whole attempts to put the innocent party in the position they would have been in if the legislation had not been violated.

Notice to Employees Some boards have ordered employers to post or mail a notice to employees that admits they have violated the legislation and promises that they will not violate the Act again. The purpose of this order is to allay employee fears of retaliation by the employer for future union activity.

Access Where employers have threatened employees or provided false information, boards have ordered that the union have an opportunity to meet with employees on employer property during working hours. The purpose of this order is to allow the union to respond to employer claims and alleviate employee concerns about unionization. boards have also ordered employers to provide unions with the names and addresses of employees, and to allow the union to use bulletin boards and other communication tools in the workplace. Some boards have ordered the employer to provide the union with notice of any meetings of employees and an opportunity to attend and respond.

Freeze on Working Conditions Where employers have changed working conditions in violation of the legislation, boards have ordered a freeze on working conditions.

New Representation Vote When either the union or the employer has been guilty of intimidation or coercion so that employees would be afraid to vote as they wish, a board may order a new vote.

Certification Without a Vote In the federal jurisdiction including Northwest Territories, Nunavut, and Yukon, British Columbia, Manitoba, New Brunswick, Nova Scotia and Ontario, a board has the authority to certify the union without a vote or despite the fact that the union has lost the vote. The certification of the union without a vote (remedial certification) is one of the most contentious remedies a board may grant, and it is invoked only in exceptional circumstances where the employer has been guilty of serious misconduct. .

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Prosecution A contravention of the legislation or a board order is an offence for which the guilty party can be prosecuted. In most jurisdictions, prosecution is not allowed unless the consent of the board or the Minister of Labour is obtained. The consent to prosecute will only be granted in exceptional cases. The relationship between the union and the employer is ongoing, and a prosecution might harm the relationship.

Decertification Decertification is the process by which a labour relations board revokes the right granted to a union to represent employees and bargain on their behalf with the employer. Depending on the jurisdiction, the legislation will refer to decertification, termination, rescission or revocation of bargaining rights. Previously it was noted that the term certification might refer to either the process by which a union obtains bargaining rights or the end result of the application for such rights. Similarly, decertification or rescission may refer to either the process followed to revoke the union’s bargaining rights or the Board’s order terminating the rights.

Decertification allows employees to rid themselves of an ineffective union or to change unions.

The possibility of decertification helps ensure union democracy and fair representation because of the threat of the union losing its bargaining rights if it fails to maintain the support of the majority of its members. However, the process poses a policy dilemma. If decertification is too difficult to obtain, employees will lose protection against union inefficiency and freedom of choice regarding their bargaining representative. If decertification is available without any restrictions, unions may be subject to attack by employers and the anti-union sentiments of employees. Accordingly, there are restrictions on the decertification process, including who can apply, the basis for the application and when the application can be made.

A union’s bargaining rights can be terminated on different grounds, depending upon the jurisdiction. We will first consider the most common ways a union loses bargaining rights that apply in all jurisdictions—a decertification application by employees or the certification of a different union—and then consider additional grounds for decertification that vary across jurisdictions.

Decertification Application by Employees All jurisdictions in Canada provide that employees can apply to decertify the union on the basis that they no longer support or wish to be represented by the union.

PROCEDURE The process for decertification is very similar to that for certification.

Employees in the bargaining unit sign a statement confirming that they do not want the union to represent them, and this evidence is filed with the labour board, together with an application to decertify the union. The key policy issues here are the minimum level of support required for an application, whether a vote is required, and how the results of any vote are determined. There is a minimum level of support that is required for the application in each jurisdiction.

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Three jurisdictions—federal including Northwest Territories, Nunavut, and Yukon, Manitoba and Quebec—require a higher level of support for a decertification application than is the case for a certification application. Seven jurisdictions (Alberta, British Columbia, New Brunswick, Newfoundland and Labrador, Ontario, Prince Edward Island and Saskatchewan) require the same minimum level of support for a decertification application as a certification application.

Nova Scotia is a special case in that the Trade Union Act (Section 29[a]) states the Board may order a decertification vote if a significant number of union members allege the union is not fulfilling its responsibilities.

The employer and the union are not given the names of the employees who apply for decertification. Figure 6-8 shows whether a vote is required. Most jurisdictions provide that a representation vote must be held if a specified minimum percentage of employees indicate that they no longer want the union to represent them. In the jurisdictions where a vote is not required, the board may still direct a vote to satisfy itself that the majority no longer wish to be represented by the union. The federal Board’s policy is to require a vote if the union challenges the application. When a vote is held, there is variation across jurisdictions on how the results are determined. The vote is held within the same time frame as a representation vote on a certification application.

WHEN AN APPLICATION FOR DECERTIFICATION CAN BE MADE There are restrictions on when employees are allowed to make such an application. As in the case of an application for certification, the restrictions depend on whether a collective agreement has been negotiated. If no agreement has been negotiated, in all jurisdictions with one exception, the decertification application cannot be made until the time an application for certification by a second union is allowed. In British Columbia, the policy is to prohibit an application for decertification for a longer time. When there is no collective agreement in place, a second union can apply to be certified after six months in British Columbia, but an application for decertification cannot be made until 10 months after the union was certified.

When a collective agreement has been negotiated, generally an application for decertification can only be made during one of the open periods for a certification application. Three jurisdictions provide an exception where the union was voluntarily recognized instead of being certified. All jurisdictions except Quebec allow a union to obtain bargaining rights through voluntary recognition by the employer instead of certification by the Board. In the federal jurisdiction, New Brunswick and Ontario, there are special provisions allowing for the decertification of a union that has been voluntarily recognized. In these jurisdictions, an application for decertification can be made at any time in the first year of a collective agreement.

The purpose of this provision is to protect against an employer entering into a voluntary recognition agreement and a collective agreement with a union that does not have the support of employees. An employer and a union in these jurisdictions who have concluded a collective agreement after entering into a voluntary recognition agreement face uncertainty in the first year of the agreement’s operation that would not exist if the Board had certified the union. In Ontario and New Brunswick, the legislation also allows for the termination of the union’s bargaining rights during the first year of a voluntary recognition agreement where no collective agreement is reached.

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In summary, there are periods of time when employees cannot make an application for decertification. If there is no collective agreement negotiated, employees must wait 10 months to a year after certification to make an application to decertify, depending on the jurisdiction. If there is a collective agreement with the employer, the open period in which a decertification application can be made could be delayed even longer. In some jurisdictions, the first time an application could be made will be the open period that arises just prior to the expiration of the third year of an agreement.

In most jurisdictions, there is a provision to protect the union against repeated decertification applications. These provisions protect the union for 90 days to a year depending on the jurisdiction.

RESTRICTIONS An application for decertification must be a voluntary act by employees. If the employer assists the employees in making the application, or encourages it, the application will be rejected. Applications have been rejected when employers have allowed employees to collect signatures during working hours or paid the legal expenses of the employees making the application.

In Manitoba and the federal jurisdiction, there are some additional restrictions relating to whether the employer has failed to bargain in good faith, or the union has made reasonable efforts to reach an agreement.

Certification of a Different Union Employees who wish to change unions do not have to apply to decertify their current union before a second, or replacement, union is certified to represent them. A second union can apply to represent employees in the open period for a certification application. If the second union is certified, the first union loses its bargaining rights.

Additional Grounds for Decertification Some jurisdictions provide additional grounds to decertify the union that will be briefly referred to here.

FAILURE TO GIVE NOTICE TO BARGAIN, OR TO BARGAIN Labour relations legislation provides that after a union is certified, it must give the employer notice that it wishes to bargain to reach a collective agreement. Prior to the expiry of a collective agreement, either the union or the employer can give notice to the other to negotiate its renewal. Legislation in Ontario and New Brunswick provides that if a union fails to give notice to bargain, or fails to bargain, the union may be decertified. The purpose of this provision is to prevent the union from sleeping on its rights. An application to decertify the union because of its failure to bargain can be made by either the employer or the employees. The Board does not automatically decertify the union when it has failed to bargain. It will direct a representation vote, unless the union indicates that it no longer wishes to represent the employees.

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TERMINATION WHERE CERTIFICATE OBTAINED BY FRAUD The federal jurisdiction including Northwest Territories, Nunavut, and Yukon Manitoba, New Brunswick, Ontario, and Saskatchewan provide for termination of the union’s bargaining rights if the certification was obtained by fraud. Fraud refers to making false statements to the board and does not include false statements made to another party. Fraud would include such actions as forging signatures on union membership cards or deliberately falsifying the number of employees in the application for certification. A letter containing false information circulated among employees would not be covered by these provisions. An application for termination for fraud can be made at any time. There is variation across jurisdictions regarding who can make the application.

FAILURE TO REACH AGREEMENT In most jurisdictions, the failure to reach a collective agreement does not provide a basis for decertification; the union continues to hold bargaining rights for the employees. However, in Alberta there is a provision for decertification of the union whe Successor Rights When a union is certified, the certificate issued by the board provides that the union represents a bargaining unit of employees working for the employer named in the certificate. Similarly, any collective agreement negotiated will provide that the agreement is between the union and the employer named in the agreement. If the employer sold the business, the union’s bargaining rights and any collective agreement with the first owner could be nullified unless labour relations legislation provided for the possibility of a sale of the business. Successor rights provisions in labour relations legislation deal with these issues.

Successor Rights protect the rights of the union and any collective agreement if a business is sold.

The purpose of successor rights is to protect the bargaining rights of the union and any collective agreement in the event that the business is sold. Generally, the successor rights provisions confirm that, subject to some exceptions, any previous certification and collective agreement bind the purchaser of the business. There is some variation in the provisions across jurisdictions, including how it is determined whether there has in fact been a sale of a business.

In all jurisdictions, a critical question will be whether there has been a sale of the business as defined in the legislation. Sale has been broadly interpreted and will likely include a business transfer that may not normally be viewed as a sale. The definition in the Canada Labour Code provides that a sale “includes the transfer or other disposition of the business. . . .”i In one case, a municipality had a contract with an organization to provide drivers, mechanics and other employees to the municipality for the operation of the municipality’s transit system. A union represented the employees of the organization. The municipality terminated the contract and hired its own drivers, mechanics and other employees. Many of the employees the municipality hired were former employees of the organization the municipality had previously contracted with. The union that held the bargaining rights for the organization’s employees sought a declaration that there had been a sale as defined by the legislation. This would mean that the municipality was a successor employer and was bound by the terms of the collective agreement. .

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The board found that there had been a sale of the business as defined by the Act—even though no money had changed hands—and the municipality was bound by the collective agreement.ii When an application for certification is pending at the time of the sale, the purchaser is treated as the employer for purposes of the application. Accordingly, the purchaser will be bound by any certification order made after the purchase is finalized. In cases in which the union has been certified and negotiations with the employer are under way when the sale of the business occurs, the union may give a notice to bargain to the successor employer. Any previous negotiations with the seller of the organization do not carry forward to the buyer. In most jurisdictions there cannot be a strike or lockout until the union and the employer have completed a conciliation or mediation process. When there is a sale during the negotiation of a collective agreement, the successor employer (purchaser) and the union must go through this process even if there has already been conciliation between the organizational seller and the union. If a strike or lockout is under way at the time of the sale, it must cease until the successor employer and the union have gone through the conciliation process. If there is a collective agreement between the union and the seller of the organization, it is binding upon the successor employer.

Additional issues will arise when the buyer of an organization combines employees of the business purchased with employees of another business. If a union already represents the buyer’s employees, the board may direct a representation vote to determine which of the two unions will represent the employees.

VI. Review Questions 1. Why do some employees want to have a union represent them?

The reasons why some employees may want a union representation are reviewed at page 101.

2. Outline the factors external to the workplace that could affect employees’ desire to unionize?

Public opinion on the issue of unionization and economic factors could affect employees’ desire to unionize.

3. Why do some employees oppose unionization of their workplace?

The reasons why some employees may oppose union representation are reviewed at pages 103-105.

4. How can the union obtain the right to be the bargaining agent for a group of employees?

Voluntary recognition and certification.

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5. What are the four things that a union will have to establish when it applies to a labour relations board to be certified?

When the union applies to the Board it will have to establish that: 1) it is a trade union as defined in labour relations legislation, 2) the application is timely, 3) the group of employees specified in the application is an appropriate bargaining unit, and 4) the union has the support of a majority of employees in the proposed unit.

6. What are two different examples of jobs that are prevented from being part of a union?

Give the reason for their exclusions?

The following are prevented from unionizing: 1) managerial employees 2) employees engaged in a confidential capacity regarding labour relations 3) employees in specified occupations which vary by jurisdiction Appendix 6.2 provides occupational exclusions by jurisdiction.

Managerial employees and employees working in a confidential capacity in labour relations are excluded to avoid a conflict of interest. The occupational exclusions in various jurisdictions do not appear to be logical. For example, there does not appear to be a reason why land surveyors cannot unionize in Ontario and can unionize in other provinces. The occupational exclusions are an area influenced by the political environment.

7. Who decides what the appropriate bargaining unit is when a union applies for certification and what is the significance of this determination?

If the employer and the union cannot agree on the appropriate bargaining unit it is determined by the labour relations board. The appropriate bargaining unit affects the probability of certification and contract negotiations. Consider the example of 12 Tim Horton’s locations under common ownership in a municipality. If the appropriate bargaining unit is a single location certification will be easier than if it is all 12 locations. However, if the appropriate bargaining unit is each location, a strike at any one location is not a very effective weapon. The union would be in a stronger position if all 12 locations were in one unit that negotiated an agreement.

8. What are the factors considered when the appropriate bargaining unit is determined?

The key factor is the “community of interest” of employees. Other factors are the concern with fragmentation, the affect on the likelihood of establishing collective bargaining in the industry, and avoiding labour relations problems.

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9. Why do unions prefer a process that allows for certification on the basis of membership cards without a representation vote being held?

Unions prefer a card system because it avoids the possibility of employers influencing or pressuring employees prior to a vote. Studies have shown that mandatory representation votes reduce the probability of certification.

10. What is the meaning and significance of the phrase of “business as usual” at the time of a certification application?

A statutory freeze is imposed when the union makes an application for certification. This means that the employer cannot make any changes in the terms and conditions of work. However, the freeze does not mean that the employer is prohibited from making any or all changes. Instead the employer must conduct business as it would if the certification application had not been made.

For example, if employees are scheduled to get a pay increase the employer must go ahead with “business as usual” and provide the increase. However, it would be a violation of the statutory freeze if the employer made a change employees were not expecting, such as reducing or increasing the employee discount, because this would not be “business as usual”.

11. Are employees allowed to sign up their co-workers as union members on the employer’s property?

There may be a problem here in Nova Scotia. However, in other jurisdictions employees can solicit union members during non-work hours such as breaks and lunch periods.

12. What are the remedies for unfair labour practices during an organizing campaign and certification application?

Remedies for unfair labour practices during an organizing campaign and certification application are listed in Figure 6-7.

13. Why is decertification an important part of labour relations legislation: Employees should have the right to terminate the union’s bargaining rights if the union is ineffective or be able to replace one union with another.

14. What does the phrase successor rights refer to and why are successor rights a necessary part of labour relations legislation?

“Successor rights” refers to the bargaining rights (certification) of a union and the status of a collective agreement when there is a sale of a business. The certificate issued by the Labour Relations Board granting bargaining rights to a union refers to a particular employer and similarly any collective agreement negotiated provides that it is between a specified employer and the union. Unless labour relations legislation protected the union's bargaining rights and provided for a continuation of any collective agreement, a sale of the business could negate the bargaining rights and any collective agreement. In brief, the successor rights provisions in labour relations .

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legislation provide that the union's bargaining rights are not affected by a sale and a purchaser is bound by any existing collective agreement with a union.

VII. Discussion Questions 1. Consider a non-union organization that you have worked for in the past or are familiar with. Which of the reasons for employees seeking unionization referred to in this chapter might have led employees in the organization to seek union representation? Were there any other reasons why employees might have tried to unionize?

This question requires a consideration of the factors that lead employees to unionize, which are referred to in the text. The question refers primarily to the internal factors that affect unionization including compensation, job security, and employer policies. External factors including the economy and attitudes toward unions might also be referred to. It is anticipated that the reasons for unionization will vary. Attention could be drawn to concerns other than compensation.

2. Consider a non-union organization that you have worked for in the past or are familiar with. This chapter provided reasons why some employees may not support unionization.

Would any of these reasons apply to you or your co-workers? What may be other reasons why you or your co-workers might oppose unionization?

This question requires a consideration of the reasons why some employees may not wish to join a union, which are set out in the text on page 104-106.

3. What is the significance of the group of employees found to be the appropriate bargaining unit at certification?

The appropriate bargaining unit will be significant because it will affect whether or not a group of employees is certified and the bargaining power of any unit that is certified. At the certification stage it may be easier for a union to obtain support from a smaller group of employees at only one location; however, a small bargaining unit may have more difficulty when negotiating an agreement with an employer. In the banking industry the Canada Industrial Relations Board formerly held that the single branch was not the appropriate bargaining unit and it was extremely difficult to organize in the industry. The skills of the employees included in the bargaining unit could also affect the bargaining power of the union. If the bargaining unit consists entirely of unskilled employees who could easily be replaced, the union will be in a weaker bargaining position.

4.

An automotive dealership has four departments: service, sales, office and a body repair shop. There is a supervisor for each of the departments. The technicians and technical assistants in the service department have a separate incentive compensation system. The employees in the service department and body repair department have the same benefits package, and they work in the same building that is separate from the auto showroom. There is no interchange of employees between departments. A union has applied for certification seeking to represent the technicians and technical assistants in the service department. What, if anything, should the employer’s response be? .

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The purpose of this question is to illustrate the concept of the appropriate bargaining unit and its significance for the certification of a union. The employer's response to the application for certification could be that the union has proposed a bargaining unit that is not appropriate. There may be some variation between jurisdictions regarding the concept of the appropriate bargaining unit; however, generally Boards want to avoid fragmentation and do not certify on a department basis. This particular question is based upon a British Columbia application for certification. The British Columbia Board has favoured broader all employee bargaining units. In the case that this question is based upon, Durek Chevrolet and Teamsters, 19 CLRBR (2nd) 161, the British Columbia Labour Relations Board found the bargaining unit inappropriate and dismissed the application for certification.

5. Confirm whether the labour relations legislation in your province or territory provides for the possibility of certification of a union based on membership cards or requires a representation vote. If the legislature was considering changes to the legislation, what arguments would you make in favour of relying on membership cards instead of requiring a vote? Conversely, what arguments would you make in favour of requiring a vote in all applications for certification?

The determination of union support by way of membership cards or a vote by employees is referred to on pages 126. The jurisdictions which allow for a certification without a vote on the basis of membership cards are listed in Figure 6-7 as follows: Canada, Manitoba, New Brunswick, Newfoundland and Labrador (where both parties request), Quebec, and Prince Edward Island. A vote is mandatory in Alberta, British Columbia, Nova Scotia, Ontario and Saskatchewan. The proponents of a card system argue that relying on membership cards avoids employer influence on employees. Those who argue in favour of a mandatory vote claim that a secret ballot vote is the way in which critical issues are determined in our society, and suggest that some employees may be susceptible to peer pressure when signing a membership card.

6. An employer has been notified that a union has filed an application for certification for a group of its employees. The employer is considering implementing the changes or taking the steps referred to below. In each case explain whether the employer should take the action referred to: a) The employer is considering the amount that will be paid to employees who use their vehicles in the course of their employment. For five years the employer has increased the mileage allowance on an annual basis after reviewing the costs of gas and other factors affecting the cost of operating a vehicle. No announcements relating to an increase have been made.

Although there has been no announcement by the employer, the past practice would appear to have established an employee expectation of an increase. The employer is obligated to continue with business as usual and a failure to provide the increase would be a breach of the legislation.

The employer should proceed with a change in the mileage allowance as it would have if the union had not applied for certification.

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b) The employer is considering a new incentive pay system. The system has been designed by a consultant, the consultant has been paid, and the senior management team has approved the system; however, employees have not yet been advised about the system.

The employer's obligation is to continue with business as usual. If the employer implements the new system there would be a breach of the statutory freeze because this would be viewed as a change by employees. c) Same situation as in (b), except that the system was announced to employees two weeks before the application for certification was filed by the union.

Failing to implement the new system would be deviating from business as usual. The employer should proceed with implementation of the new system.

7. Confirm whether the labour relations board in your province or territory can certify a union without a vote as a remedy for employer unfair labour practices. What are the arguments for and against the board having this authority: In six jurisdictions, federal, British Columbia, Manitoba, New Brunswick, Ontario, and Nova Scotia the Board has the authority to certify a union without a vote. Labour Relations Issue 6-2 illustrates a situation where a union was certified despite the fact that it lost a vote 151 to 43. The main argument against certification without a vote or despite a vote is that it appears undemocratic because employees may be unionized even though they have voted against the union. The main argument in favour of a Board having the right to certify without a vote is that without this remedy there will be nothing to prevent the unscrupulous employer from coercing employees into voting against the union.

VIII. Web Research 1. Go online to search for particular information in your jurisdiction regarding managerial exclusions and occupational exclusions from unions; how the appropriateness of a bargaining unit is decided; and union certification procedures and decertification procedures. Note more specific detail on particular points of interest in any of these areas that may require more searching on the related federal or provincial government site.

The managerial and professional exclusions vary from province to province ad territory.

Typically, managers, supervisors, and other professionals who are an integral part of the management of the operations are exclude. For example, a HRM professional or the administrative support person for the CEO, may be excluded due to the nature of the responsibilities.

2. Using the British Columbia Labour Relations Board define two key information items you would incorporate into a management training session to inform workshop attendees regarding any limits or restrictions they must consider in their actions during a period of union certification in the workplace.

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Code guide and the Employers Guide to the Certification process are both valuable sources of information regarding an employer’s responsibilities and rights during a certification process.

3. Go online to confirm when labour relations legislation in your province or territory allows employees to make an application for decertification. Explain any labour relations policy behind the restrictions on an application for decertification, and whether the restrictions are too broad or too narrow.

All provinces will provide for policies for a decertification process which will be similar to the process for certifications. Typically, employers are not permitted to influence employees to apply for decertification.

IX. Vignette Employers’ Point of View Towards Unions It would seem Canadian organizations are opposed to unionization of their workplaces.

The primary organizational concerns stem from increased costs, reduced productivity, increased workplace regulations, and loss of operational control as a result of a unionized workplace.

Notably, one study reported that a unionized workplace had little or no union effect on business viability over the 1-18-year time frames.

In fact, 88 percent of the employers in one study limited their employees’ capacity to communicate among themselves or with union representatives and 68 percent of employers communicated directly with their employee. Sadly, 12 percent of employers admitted to unfair labour practices during the organizing drive.

Only 20 percent of employers did not oppose the certification applications of their organization.

These employers most often retained a lawyer or consultant, or trained their managers concerning a union organizing drive. Some of these employers did file an objection to the proposed bargaining unit. Other employers put administrative challenges such as postponements, objections or appeals of board decisions in place or tightened work rules or monitoring of employees.

SHRM suggests employers reduce employee dissatisfaction which may translate into employees’ reduce motivation for union representation. Employers may be able to dissuade unions in their workplace with fair and consistent policies and practices, open door management policies, competitive pay and benefits, employee trust and recognition, and functional management and employees relationships.

X. Case Incident This incident illustrates unfair labour practices during a union organizing campaign and remedies that may be granted by a Labour Relations Board.

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1. Outline the basis, if any, for Mills to file a complaint with the Labour Relations Board in your jurisdiction.

Mills could file a complaint alleging that he was terminated because of his involvement in union activity.

2. Assuming that Mills files a complaint with the Labour Relations Board, how would the employer likely respond to the claim(s) made in any filing with the Board?

The employer could respond as follows: • deny that Mills’ termination was linked to union activity • there was a need to reduce the number of employees for financial reasons • the new plough that the municipality owns increased efficiency and reduced the number of employees required.

3. Explain the outcome you expect in this case in light of your understanding of theories and concepts discussed in the course.

The employer is required to establish that its reasons for terminating the employee were not related to union activity. This case is based upon a decision of the Saskatchewan Labour Relations Board, Meroniuk v. Rural Municipality of Preeceville No. 334, 2003 CLLC 200-025 in which the complaint was allowed. Council members indicated that they thought other employees would not be willing to join the union. This leads to the conclusion that council members perceived Mills was the instigator of the union organizing effort. The new plough, which is alleged to have increased efficiency so that fewer employees were required, was acquired two years ago. It stretches credibility to say that before the council learned about the union organizing attempt the new plough did not establish a need to reduce the number of employees; however, it was the reason for council's action after it knew about the union organizing effort. It is apparent that there was no assessment made of Mills' work, or a comparison of his work to the more junior employee. It is noted that council did not consult Mills' supervisor prior to making a decision regarding his termination.

In this case the Board ordered that Mills be reinstated to his former position and be paid the wages and benefits lost. This incident illustrates that the onus is on the employer to show that its actions were not the result of anti-union animus when discrimination or termination because of union activity is alleged. It also illustrates that the Board will consider the explanation put forward by the employer to determine if it is credible. i

Section 44(1), Canada Labour Code.

ii

Ajax (Town) v. C.A.W. Local 2221, 185 D.L.R. (4th) 516.

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Chapter 7 The Collective Agreement

CHAPTER 7 THE COLLECTIVE AGREEMENT Preface In this chapter students will explore collective agreements. In particular, when a union is certified to represent a group of employees in a workplace, the nature of the employment relationship is transformed from an individual employee–to–employer contract to that of a union (representing all members of the bargaining unit)–to–employer legal relationship. Further, this chapter reviews the structure, common terms, concepts and phrasing found in a collective agreement. Employer and union preferences for content and phrasing the agreement are also reviewed in important content areas. The impact of collective agreements on the human resources management function will also be discussed.

Learning Objectives 7.1 7.2 7.3 7.4 7.5

Summarize the importance of collective agreements.

Describe the legal nature of a collective agreement between the “actors” in the labour relations system.

Identify the mandatory collective agreement terms required by legislation.

Outline the voluntary terms commonly included in a collective agreement.

Understand language prohibited in collective agreements.

Outline/Table of Contents

I. II. III. IV. V. VI. VII.

The Collective Agreement Grievance and Arbitration Process Review Questions Discussion Questions Web Research Vignette Case Incident

I.

The Collective Agreement

One of the first tasks of a newly certified union bargaining unit is to engage in negotiating a collective agreement with the employer. Thereafter, a collective agreement is negotiated from time to time between the union and employer. Language in this document changes based on external circumstances, internal business changes and the shifting perspectives of both groups.

Government sets rules related to mandatory language and prohibited content in these agreements.

Government is also a key player in helping to resolve disagreements between union and management in the interpretation, application and administration of the collective agreement.

Collective agreement is a formal agreement between an employer and the union representing a group of employees regarding terms and conditions of employment. .

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The collective agreement is critically important to the employer, the union, employees, and the public. The employer’s control over the workplace and profitability will be affected by its contents. Wage and benefit provisions affect the employer’s total compensation costs. Seniority provisions may impose constraints on layoffs and promotions. The grievance and arbitration process could lead to the review and reversal of management decisions such as the termination of an employee. The union’s rights to continue to represent employees and its influence are affected by the contents of the agreement. The union is protected from a raid by another union or a decertification application by employees for most of the term of a collective agreement. Union security provisions in the contract, which may require membership in the bargaining unit and the payment of dues by employees, are vital. In addition, provisions that might limit contracting out or technological change can affect the employees’ job security. A collective agreement might also impact residents by affecting the cost and availability of public services. For example, collective agreements in education might contain restrictions on student–teacher ratios, affecting the quality of education.

Collective agreements are not confidential documents: most jurisdictions require a copy to be filed with the government ministry responsible for labour issues. Many government ministries and unions make collective agreements available on their websites. Employment and Social Development Canada provides collective agreements in an e-database called Negotech.

Legal Requirements for Collective Agreements Collective agreements must comply with employment standards, human rights and labour relations legislation in the employer’s jurisdiction(s). Some agreements repeat content from such legislation, but if not, it is still assumed that a collective agreement cannot contract out of statutory guarantees. For example, a wage schedule in the collective agreement cannot set a wage rate for a union job class at a level less than the minimum wage rate prescribed in employment standards law in the jurisdiction(s).

Legal frameworks for labour relations in Canada are divided between federal, including Northwest Territories, Nunavut, and Yukon, and provincial jurisdictions with 10 percent of employers being regulated by federal labour laws and 90 percent of employers covered by provincial legislation. Provincially regulated employers, operating in more than one province, must understand and comply with the provincial labour laws in each separate jurisdiction where an organization’s operations are located.

Union and management rights and obligations are established throughout the collective agreement. When representatives of either group view the actions of the other party as being contrary to terms set out in the agreement, they are required to pursue a described grievance and arbitration process to resolve the disagreement. If the disagreement is between an individual union member and their supervisor, the dispute is addressed by the union representing the employee. In the majority of cases, the ownership, or the decision to proceed with a grievance, is decided by the union.i The structure of a collective agreement is generally left to negotiating teams for union and management. If you looked at five different collective agreements between unions and .

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employers, for example, in the manufacturing sector, the issue of seniority may be located in different page locations of each agreement. This is dependent on the negotiating history between the parties and their preferences. A topic such as seniority or wages is described in an article which sets out clauses on that subject in the collective agreement. Articles may be as short as two or three sentences or involve several paragraphs, even pages, in the agreement depending on the complexity of the topic area. The content of a collective agreement may be considered in terms of mandatory, voluntary and prohibited articles.

Mandatory Terms are provisions that must be included in the collective agreement because they are required by law. Labour relations legislation requires the contract to include the following mandatory terms.

Union Recognition The union recognition article, which may be referred to as the scope clause, is usually found at the beginning of the collective agreement. It states that the employer recognizes the union as the sole bargaining agent for a specified group of employees that make up the bargaining unit. The recognition article will usually describe or limit the bargaining unit in terms of location and jobs.

This is important because it will identify the jobs which are in the bargaining unit and covered by the collective agreement, and by implication will indicate which employees are not in the bargaining unit.

When the union is certified, the labour relations board issues a certificate that confirms the jobs included in the bargaining unit. The recognition clause might simply refer to the certificate like, The employer recognizes the union as the exclusive bargaining agent for employees in the bargaining unit described in the Certificate of the Manitoba Labour Relations Board dated January 14, 2018.

Alternately, the bargaining unit may describe the entire municipality as, the organization recognizes the union as the exclusive bargaining agent for all employees working in the municipality of Anytown, save and except foremen, persons above the rank of foreman and office employees. This recognition article that sets out the parameters of the bargaining unit, illustrates a bargaining unit that includes part-time employees.

Further, if the employer moved or established another plant within the municipality, it would be covered by the collective agreement, such as, the organization recognizes the union as the exclusive bargaining agent for all employees in its nursing homes in the province of British Columbia, save and except registered nurses, physiotherapists, forepersons, persons above the rank of foreperson, office staff, persons employed for not more than 24 hours per week and students employed during the school vacation period. In this example, the bargaining unit includes employees located anywhere in the province; however, there are a number of exceptions, including nurses. The employees in the jobs excepted might be included in a separate bargaining unit, represented by the same or a different union, or might not be unionized.

In the third example above, part-time employees are not included. Generally, employers would prefer to have part-time employees and students excluded so that individual contracts of .

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employment can be established with them. Unions would prefer to have part-time employees included in the bargaining unit or organized in a separate bargaining unit because they are concerned that work might be shifted to these non-union employees. If part-time employees are not unionized, the union would like to see the agreement contain restrictions on work being done by those employees. The employer might also prefer to have each location in a separate bargaining unit so that negotiation for each location could be conducted separately.

When the management and union bargaining teams negotiate their first agreement after the union is certified, they might ask whether the recognition clause can be varied from the bargaining unit set out in the certificate issued by the labour relations board, and whether the parties can agree to change the bargaining unit or amend the recognition clause when they negotiate a renewal of the collective agreement. The short answer to both of these questions is yes. The employer might wish to amend the recognition article so that it excludes a new job classification, or the union might wish to expand the bargaining unit to include employees presently excluded, such as part-time workers. However, there is a restriction on the negotiation of changes to the recognition clause. Neither side can press this issue to an impasse that would cause a strike or lockout. The parties can discuss the recognition clause and agree to a change; however, insisting on a change and taking the issue to a strike or lockout would be a breach of the duty to bargain in good faith.

II.

Grievance and Arbitration Process

GRIEVANCE DEFINED At one time a grievance simply referred to a claim that the collective agreement had been violated. Some arbitrators held that because their jurisdiction flowed from the agreement, they did not have jurisdiction in a dispute that involved legislation unless the agreement provided a connection to the legislation. However, the Supreme Court of Canada has held that all employment and human rights statutes are incorporated into collective agreements. Accordingly, a grievance can be filed whenever it is claimed that such legislation has been violated. In view of this development, a grievance should be defined as an allegation that the collective agreement or an employment statute, including human rights legislation, has been violated, together with the remedy that is claimed to rectify the situation.

GRIEVANCE PROCEDURE The grievance procedure includes a series of steps, usually three or four, in which union and employer representatives at progressively higher levels meet to try to resolve the dispute. The collective agreement will set out the number of steps in the process and time limits for each. An example of a grievance procedure is provided in Figure 7-3.

The procedure article will refer to union stewards and other union officials who represent the union. A steward is an elected local union official who assists employees with issues, including grievances, that arise in the course of administration of the collective agreement. Their duties include ex-plaining collective agreement terms to employees, preparing grievances, attending grievance meetings and attempting to settle grievances. Labour relations legislation requires collective agreements to contain a term providing that any disputes regarding the administration of the agreement that the parties cannot resolve be referred to arbitration.

TYPES OF GRIEVANCES A grievance might be filed by an individual employee, a group of employees, the union or the employer. There is no requirement that the grievance specify the .

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articles of the collective agreement that have been violated unless the collective agreement says they must be provided. An employer might prefer that the grievance identify the articles, but unions generally prefer to avoid this. As is noted below, there might be rules in the collective agreement that affect who can file a grievance in a given situation.

Individual grievance—an allegation by an employee that the employer has violated the collective agreement or statute and that includes a statement of the remedy sought by the employee. For example, if an employee was unsuccessful in a bid for a job vacancy, he or she might think the employer did not properly take seniority into account. An individual grievance might be filed that alleged the employer had violated the seniority provisions of the agreement and state that the remedy sought is the placement of the grievor in the job.

The Grievance Procedure The grievance procedure article will set out the process to be followed for any grievances. Employers would prefer that the procedure provide for an employee to first make a complaint before filing a grievance as in Article 9 in Figure 7-3. At each step in the process, the grievance could be settled, withdrawn, or denied by the employer. If the employer denies the grievance the union will have to decide whether to withdraw it or proceed to the next step. If the grievance is not resolved, it might be referred to arbitration.

The collective agreement usually provides that some types of grievances are started at a higher step in the process or have different time limits. For example, the agreement may provide that a policy grievance start at Step 2 and a discharge grievance start at Step 3. Unless the collective agreement prevents it, the union may file a grievance even if an individual employee does not.

TIME LIMITS It is necessary to assure that disagreements between management and the union over the interpretation, application or administration of the collective agreement are settled in a reasonably prompt manner. To do this there are time limits negotiated in collective bargaining for each step in the grievance process.

The time limits in the grievance process may be either mandatory or directory. A mandatory time limit is one that must be met, and the grievance might be dismissed if a grievance step is not taken within the time allowed. If the time limits are mandatory and the step is not taken within the time specified, the grievance cannot proceed to arbitration unless there is an extension granted by the arbitrator, as explained below. Directory time limits are viewed as a guide, and the grievance may be allowed to proceed even if the limit is not met. If the agreement provides that a step may be taken within a specified number of days, it is directory only and failure to meet it does not prevent the grievance from going to arbitration. The grievance is still arbitrable.

Many arbitrators suggest that the word “shall in a time limit is not enough to make the time limit mandatory. They have held that unless the agreement also provides specific consequences for failing to meet the time limit, such as “the grievance shall be deemed to have been abandoned,” the time limit is not mandatory. Employers usually prefer to have mandatory time limits and may seek language in the agreement that will meet this objective. Unions usually prefer that time limits be directory.

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The issue of time limits is further complicated by labour relations legislation in six jurisdictions—Canada including Northwest Territories, Nunavut, and Yukon, British Columbia, Manitoba, New Brunswick, Ontario and Saskatchewan—that gives an arbitrator authority to extend a time limit in the grievance process. This means that even if the time limits are mandatory, an arbitrator could allow a grievance to go to arbitration. Employers may wish to attempt to have the collective agreement provide that the arbitrator does not have the authority to extend time limits, but the union would likely resist this.

When a party, usually the employer, fails to reply within the time specified it does not mean that the grievance is decided in the other party’s favour. But it permits the other party to proceed to the next step in the process, thus avoiding a stalling tactic to resolve the disputed issue on the part of management.

ARBITRATION Unresolved grievances are referred to arbitration—a dispute resolution method in which management and union representatives present evidence and arguments to a third party who makes a final, binding decision. This process is also referred to in such cases as rights arbitration.

PROBLEMS WITH ARBITRATION One of the criticisms of the arbitration process is that it is too slow; delays of a year or more from the filing of a grievance to the completion of the arbitration are possible. To deal with this problem, the agreement can provide for an expedited arbitration process, which might include a single arbitrator, and shorter time limits for their appointment, the hearing and a decision. The agreement may provide that the expedited procedure is available only for certain issues or requires the consent of both parties.

Another concern, particularly for small or not-for-profit employers is the cost of arbitration proceedings. Each of the parties will be responsible for their own legal and other expenses associated with arbitration. If a sole arbitrator is used, the parties would split her professional daily fee plus fees for their organization’s legal counsel. In cases of an arbitration board, the parties would each bear the cost of their own nominee to the board and split the costs of the board chairperson in addition for legal counsel fees. Meeting room and material costs are other possible expenses shared by both parties. A few agreements have provided that the losing side will pay these expenses, but a union would likely oppose such a term. A few unions have been able to negotiate a justice and dignity provision in the process that provides that, subject to some restrictions, an employee who has been suspended or discharged will be allowed to retain their job while the process is going on. An employer would likely oppose such a term.

Strikes and Lockouts A third required article in a collective agreement deals with strikes and lockouts. A strike is the refusal to work or a restriction of output by bargaining unit members. A lockout refers to an employer’s refusal to allow employees to work, in order to force the union to agree to terms of employment proposed by the employer. A lockout should be viewed as the employer’s economic weapon equivalent to the union’s strike threat. One of the basic principles of Canadian labour .

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relations is that strikes or lockouts are prohibited during the term of the collective agreement, and most collective agreements include an article to this effect.

Duration or Term of the Agreement In all jurisdictions, the collective agreement must have a term of at least one year. If the term is not specified, or is stated to be less than a year, it will be deemed to be one year. Many collective agreements have a longer term. Employers have usually sought longer terms, to avoid having to renegotiate too frequently and to have certainty for planning purposes. Unions have generally sought shorter terms, because a collective agreement with a longer term delays the opportunity to improve the terms of the agreement and exposes employees to the risk of future inflation or other undesirable circumstances. The trend is for collective agreements to be longer.

There are open periods in the term of a collective agreement during which employees can apply to decertify the union or another union can apply for certification. If a union is decertified, the collective agreement is terminated. Accordingly, it is possible that a collective agreement will not continue to operate for the term specified.

CHECK-OFF OF UNION DUES Unions are external organizations whose line of business is to represent the interest of employees who believe that their collective needs are best served by seeking a bargaining agent to serve as a spokesperson and advocate for bargaining unit members with the employer. Like any business, unions rely heavily on certain income streams to provide revenue for its operations. One key form of revenue is the collection of union dues—a service fee paid to the union by members of the bargaining unit. This fee is set by the union as a percentage of the worker’s earnings and is not a subject for contract negotiations with the employer. However, the deduction of union dues by the employer, if the union requests it, is a required clause in collective agreements in a majority of Canadian jurisdictions. A dues checkoff clause can be included in a collective agreement, requiring the employer to make a payroll deduction from each bargaining unit member for the dues and to submit the monies to the parent union office.

Voluntary Terms If a collective agreement only listed the required articles set out by Canadian legislation, it would likely be only four or five pages in length. However, collective agreements can be documents of 50 pages or more. The balance of content in the typical agreement is comprised of voluntary terms—those terms and conditions of work, not required by legislation, which union and management bargaining teams agree to include in a collective agreement.

Management Rights Most of the provisions of a collective agreement, such as the seniority and job posting articles, restrict management’s rights and flexibility. The management rights article may be the only term protecting or benefiting the employer. Most arbitrators apply the reserved or residual rights theory that provides that the employer has all rights to manage the organization except as expressly restricted by the collective agreement. For example, if the collective agreement did not .

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refer to the issue of uniforms, management would have the right to introduce a uniforms policy.

The management rights article expressly sets out that management retains the authority to manage the organization, except as otherwise provided in the collective agreement. This article has been relied on to make numerous management decisions such as changing the method of payment to workers, workplace security measures and establishing a rule to search toolboxes.

The two types of management rights clause are a general (short) form and a detailed (long) form.

Figure 7-5 provides an illustration of both.

The short form, which is preferred by unions, is a simple statement confirming that the employer has the right to manage the organization. The long form, which is preferred by employers, is a general statement regarding the employer retaining the right to manage, to which are added specific provisions such as the right to change methods of operation. Although the employer may not have to refer to a specific item in a long form to justify a management decision, the long form makes it more likely that management will be able to refer an arbitrator to a specific right provided in the agreement. Accordingly, the long form may increase the likelihood of an arbitrator making a decision favourable to the employer.

The law relating to the obligation of management to be fair and reasonable in the administration of the agreement is unclear. One argument holds that management has a duty to act reasonably only in connection with matters specifically set out in the agreement. According to this approach, if the agreement provides for the assignment of overtime, management would have to do so fairly and reasonably. Another interpretation holds that there is an overriding duty to act fairly and reasonably with regard to any issue, whether or not it is specifically set out in the agreement.

In Manitoba, this issue has been clarified by legislation that requires management to act reasonably in the administration of the collective agreement.

Bargaining Unit Work The phrase bargaining unit work refers to the work normally done by employees in the bargaining unit. If there is no provision in the collective agreement preventing the employer from assigning work to employees who are not in the bargaining unit, the employer is free to do so.

Arbitrators have held that if an individual not in the bargaining unit does a certain level of bargaining unit work, he or she will be included in the unit. However, arbitration decisions vary on how much work must be done to make someone part of the bargaining unit. Unions would prefer an article that prevents non–bargaining unit employees from doing the work of employees in the bargaining unit, and employers would prefer to avoid this type of restriction.

Union Security Union security may be understood as measures taken by the union in collective bargaining to help “secure” the ongoing presence and influence of the bargaining agent in a unionized work setting.

A dues check-off article refers to the deduction of union dues from employees’ pay by the employer and the remittance of these funds to the union. A Rand formula, or agency shop, is a provision in a collective agreement that does not require employees to become union members .

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but requires the employer to deduct union dues from the pay of all employees in the bargaining unit. This union security arrangement came out of a famous arbitration case by Justice Ivan Rand to settle a 1945 strike by the United Auto Workers’ against the Ford Motor Company in Windsor, Ontario. It required all employees performing bargaining unit work to pay dues even though they could freely elect to not take out a union membership.

In most jurisdictions, legislation provides for the compulsory check-off of union dues upon the request of the union. This could be viewed as legislative imposition of the Rand formula. In a few jurisdictions, the deduction of union dues is not mandatory. In 2009 the Alberta Labour Relations Board, held that the failure to require the deduction of union dues from the pay of all employees in the bargaining unit was a substantial interference with collective bargaining and a violation of the Charter. The Board ordered an employer to agree to the union’s proposal requiring the deduction of union dues and allowed the government 12 months to amend the Alberta Labour Relations Code. This decision is not binding in the other jurisdictions that do not require the deduction of union dues; however, if the same argument succeeds elsewhere, it will mean that the mandatory deduction of union dues will be required in all jurisdictions. This development illustrates the significance of the Charter and the Supreme Court of Canada decision in the Health Services case. Most collective agreements that contain a dues check-off clause provide that the dues will be remitted on a monthly basis by the employer to the union.

UNION MEMBERSHIP A stipulation for union membership to be included in a collective agreement depends on the parties agreeing to such a requirement. As seen in the 1945 UAW– Ford Motor strike, this could be an important issue in the negotiation of a first contract. Unions want union membership to be mandatory; employers prefer to avoid this requirement. Whether or not they become union members, all employees in the bargaining unit are covered by the terms of the agreement. It is important to note that the union security provisions do not affect the union’s obligations to fairly represent all employees in the bargaining unit.

Variations of the union membership requirements that may be contained in a collective agreement are listed in Figure 7-6. The closed shop is generally limited to the construction industry.

Closed shop is a place of work in which an individual must be a union member before being hired; new employees are hired through the union.

In most industries, the union will want the agreement to provide for a union shop. If employees must be union members to retain their job, it will be easier for the union to maintain solidarity in the event of a strike. Employees who do not honour the strike face the possibility of losing their union membership, and as a result losing their job. However, in five jurisdictions— Canada including Northwest Territories, Nunavut, and Yukon, Alberta, Manitoba, Nova Scotia and Saskatchewan—legislation provides that the union cannot terminate an employee’s membership for any reason other than the failure to pay union dues. In those jurisdictions, the union will have less control over its membership. Employers would generally prefer that employees not be required to become union members.

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The modified union shop, in which union membership is required only for employees hired after the agreement is in force, is a possible compromise. In certain situations, a form of union security known as maintenance of membership does not require an employee to join a union as a condition of employment, but those who voluntarily join the union must maintain their membership for the duration of the collective agreement. An open shop does not require the employee to be a union member at time of hire or as a condition of continued employment.

When the collective agreement is negotiated, the union and the employer will have to define the union security.

UNION REPRESENTATIVE ROLES Union security is aided by allowing organizational employees to adopt internal representative roles to conduct bargaining unit business through leadership roles within the union local such as the president, treasurer, chief steward, negotiating collective agreements and filing and processing grievances. Having individuals who are inside the organization assists the union in these monitoring and advocacy functions.

UNION ACCESS TO ORGANIZATIONAL PREMISES At certain stages of union– management interactions, external experts from the parent union are needed to access the employer’s premises to participate in various types of meetings. Without such access to this form of expertise, the employer may have the advantage in such interactions. Access to the organization’s premises by internal and external union representatives affords the union a more secured position in supporting members of the bargaining unit in their interactions with various levels of management in an organization.

PROBATIONARY EMPLOYEES Employment standards legislation in both federal, provincial, and territorial jurisdictions allow for the termination of an employee without any notice or any pay such as a severance package. These are referred to as statutory probation periods and vary from as little as 30 days in Manitoba to 6 months in New Brunswick and Prince Edward Island. The federal government and remaining provinces have set a three-month (90-day) probationary period.ii Collective agreements may contain a provision that employees are on probation for a specified length of time. There is no probationary period unless the collective agreement provides for one.

If there is no probationary period, employees are entitled to all rights provided in the collective agreement from the time they start their job. A distinction is made between probationary periods that provide that an employee is on probation for a certain period of employment such as three months, and periods that refer to a specified number of working days. Employers would prefer the reference to be to working days so that the employee must actually have worked a day for it to count.

Employers may wish to know if the agreement can prevent probationary employees from grieving a dismissal. A collective agreement should not directly prohibit the probationary employee from filing a grievance. However, with the proper wording, the agreement could provide that the employer has the sole discretion to hire and will be able to avoid grievances relating to the dismissal of probationary employees. In cases where a grievance is filed, it is not uncommon for the union and management to agree to an extension of the probationary period .

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and identify specific performance concerns and what, if any, employer actions will be taken to resolve the performance gaps.

Seniority Seniority is an employee’s length of service with the employer. Unions prefer seniority to apply to more workplace issues and for seniority to be given more emphasis, because this provides increased job security for longer-term employees and avoids favoritism by management. Most collective agreements contain seniority provisions that give a job preference or benefits to employees based on this objective measure. If the agreement provides that seniority is a factor in determining layoffs and promotions, it will not be a factor regarding other issues such as shift assignments.

Seniority provisions and their application can be quite complex. A distinction should be made between two different uses of seniority: (1) competitive status issues or job rights, in which seniority is being used as a factor in determining promotion, layoff or recall and (2) benefit status, in which seniority determines an entitlement such as the amount of vacation. In the case of competitive status, seniority is being used as a factor to determine which of two competing employees will be assigned to or allowed to keep a job. In the case of benefit status, there is no competition between employees; a gain by one employee does not come at the expense of another.

CALCULATION AND APPLICATION OF SENIORITY A collective agreement may provide for different ways to calculate seniority for different applications. For benefit status issues such as vacation, seniority may be defined as the entire period of employment or service in the bargaining unit. For competitive status issues such as promotions, seniority may be defined as the time spent in a department or job classification. The agreement may include a provision to deal with the possibility that two employees have the same seniority. The parties might specify a tie-breaking formula such as the alphabetical order of the employees’ names or a random draw.

Employers generally prefer seniority to apply to fewer workplace issues and to have less emphasis so that they have more flexibility and are able to make job decisions on the basis of the KSAs of the employees. The collective agreement will usually provide that the employer will periodically prepare and post a seniority list and provide a copy to the union. The agreement may also provide for super-seniority for specified union positions such as a union local president which means that the employees who hold the union office referred to will be the last to be laid off. The purpose of super-seniority is to ensure union representation for employees when layoffs occur. The application of such a provision will mean that bargaining unit members who have more seniority than union officers will be laid off before the union officers.

TERMINATION OF SENIORITY The agreement should specify what happens to an employee’s seniority if the employee leaves the bargaining unit. The general rule is that employees who are transferred or promoted out of the bargaining unit no longer have any rights under the collective agreement. They lose their seniority and do not have the right to return to the unit unless the agreement provides otherwise. The agreement might specify that time outside of the bargaining unit is included in seniority and put a time limit on a return to the unit. The .

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agreement might also put conditions on an employee returning, such as prohibiting a return if that would result in the displacement of another employee.

The collective agreement should specify what causes seniority rights to be lost. Seniority might be lost in the event that the employee resigns or retires, is discharged and is not reinstated through the grievance and arbitration process, is laid off for a specified length of time or for other reasons. The period of time that employees can be on layoff without losing their seniority rights, the recall period, can be an important issue for the parties. It determines how long an employee has the right to be recalled. The union will seek a longer recall period. The employer may prefer the recall period to be shorter.

Loss of seniority is a separate issue from the termination of employment; termination does not happen unless the agreement provides that is the case. Many collective agreements combine the loss of seniority with the loss of employment; that is, they provide that the same factors that cause loss of seniority also cause termination. A deemed termination provision states that if an employee is absent for a specified length of time, they are automatically dismissed. Human rights legislation may mean that this type of provision cannot be applied to an employee who is absent because of a condition that is within the definition of a disability.

Human rights tribunals and commissions in Canada have clearly stated the obligations of unions and management to sustain and protect seniority accumulation during periods of disability.

Employees who are absent due to disability or maternity or other Code grounds, such as family status, would continue to earn seniority as other employees.iii The Canadian Human Rights Commission notes that the duty to accommodate prevails over private arrangements such as collective agreements. When it comes to collective agreements, unions should follow the same process of identifying and eliminating barriers to full participation in the workplace as does the employer. However, if doing so substantially changes the operation of the collective agreement, then the accommodation may amount to undue interference and may thus be undue hardship.

LAYOFFS The definition of a layoff in the collective agreement is important, because if a layoff occurs a number of collective agreement rights and obligations might be triggered. In addition to determining who should be laid off after considering seniority, KSAs, the employer may also be required to provide early retirement or severance options to employees who have been laid off. Some collective agreements have defined a layoff in a manner that means more than the displacement from work will be addressed. In one hospital collective agreement, a layoff was defined as: “a reduction in a nurse’s hours of work and cancellation of all or part of the nurse’s scheduled shift . . . a partial or single shift reassignment of a nurse from her or his area of assignment will not be considered a layoff.” When the hospital reassigned nurses from one unit to another, the union contended that there had been a layoff as defined in the collective agreement. An arbitrator upheld the grievance noting that by stating that a partial or single shift reassignment would not be considered a layoff, the implication was that the alternative, a longer reassignment, did constitute a layoff. Accordingly, all of the agreement’s provisions relating to layoffs, including notice, early retirement and severance offers were engaged. It is beneficial to the employer if a layoff is defined in a manner that would exempt short interruptions. If a layoff is defined as a period of at least five working days, the layoff provisions including notice are not an issue for a shorter period. .

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Bumping or bumping rights refers to an employee who would otherwise be laid off displacing another employee with less seniority. Bumping articles in a collective agreement can appear in three different forms depending upon the relative importance of seniority versus KSAs.iv •

Seniority is the only factor to be considered. As long as the affected employees have more seniority, they can bump a more junior employee.

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Seniority is a factor allowing affected employees with more seniority to bump more junior employees if they also have the minimum job requirements for the position.

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Seniority is a factor allowing the most senior employee to bump a more junior if they have equal or better skills than the junior employee.

Employers would prefer to have restrictions on bumping in order to avoid having employees move or bump into positions they are not qualified for, and to reduce the number of bumps. The contract might provide that employees can only move into certain job classifications and must have the required ability to do the work. It might also provide that the employee exercising bumping rights must move into the job held by the lowest seniority employee in the bargaining unit. If there is no requirement that an employee must bump the lowest-seniority employee, there might be a series of bumps (referred to as chain bumping when an employee with five years’ seniority bumps one with four years’ seniority, who in turn bumps one with one year’s service.

Unions would prefer that there be fewer restrictions on bumping, possibly combined with training periods for employees who wish to move to another position.

JOB VACANCIES The collective agreement may define job vacancies and require the employer to post them within the workplace prior to any internal non-union or external notice.

When the employer is filling short-term openings, it would be beneficial if vacancies were defined to exclude shorter-term jobs. For example, if the agreement defined a vacancy as a job that was going to last more than 90 days, it would be possible to avoid posting and seniority requirements for shorter assignments. The agreement might place restrictions on bidding or applications for a job. The employer might wish to avoid having someone successfully bid for and move into one job and then bid for and move to another—referred to as job-hopping. To avoid such a situation, the employee might be required to remain in a position for a certain length of time perhaps six months before bidding on another job vacancy.

Recall notice is an agreement will usually provide that employees who have been laid off will be recalled to work in order of seniority.

Most collective agreements do not provide that seniority is the only factor referred to when a decision is made regarding which employee is entitled to a particular job. The parties can agree that KSAs will also be a factor, and the agreement can specify how much weight will be given to skill and ability as opposed to seniority. There are two primary ways that KSAs can be combined with seniority: a sufficient ability clause or a relative ability clause. A sufficient ability clause, also known as a threshold ability clause , provides that the employee with the most seniority is awarded the job if they have enough ability, even if another employee has more advanced KSAs. .

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A relative or competitive ability clause, on the other hand, provides that seniority will only be referred to if the skills and abilities of two employees competing for a job are relatively equal.

The employee with the most seniority will be awarded the job only if they have the KSAs equal to or greater than that of other employees. Because the sufficient ability type of provision gives more weight to seniority, unions favour it. Employers favour the relative ability provision, because it gives more weight to KSAs. Alternatively, the parties could agree on a hybrid seniority provision that falls between a sufficient ability and a relative ability term. In this approach, seniority is included along with skill and ability when the determination is made.

Arbitrators have held that the employer must demonstrate that the decision was made by considering the factors listed, including seniority, in a reasonable manner giving each the appropriate weight.

It has been established that unless the collective agreement provides for a training period related to a job posting, employees are not entitled to one. An employee must have the KSAs required to perform the job at the time they apply for it. The agreement might provide for a training period of a specified number of days. The union would prefer that the agreement provide for a longer training period and allow the employee to return to a previous job if they are not successful in the new one. The employer would likely prefer to avoid a required training period, so that an employee who has the ability to do the job without any additional training can immediately move into the job.

The exact wording of the agreement regarding KSAs might be significant. The phrase capable of performing particular job tasks is not the same as having the required KSAs. A reference to capability is less demanding than a requirement that the employee have the required KSAs. It has been held that when the contract refers to capability, an employee is entitled to a period of familiarization with the job for example 30 days even though the agreement did not specifically allow for one. Accordingly, employers would prefer the contract to require that employees have the skill and ability required.

Discipline and Discharge Most collective agreements provide in the management rights article or elsewhere that the employer has the authority to discipline or discharge employees for misconduct that amounts to just cause. A few jurisdictions have provided that the collective agreement must contain a just cause article. Even if the agreement does not contain such an article, most arbitrators will require that the employer establish just cause to discipline or discharge.

There may be articles in the collective agreement that lay down procedures that must be followed when the employer imposes discipline or impose limitations on the employer’s right to discipline or discharge. Unions generally prefer to have contract language related to employee discipline or discharge that addresses union representation, notice and reasons, time limits and what is referred to as a sunset clause. Such language may cause disciplinary records in an employee’s file to be removed after a continuous, discipline-free period for example 24 months.

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Hours of Work and Scheduling Employment standards legislation provides for maximum hours of work, minimum lunch or break periods and minimum rest or time away from work. The rules relating to maximum hours should not be confused with the separate requirements regarding overtime. The terms relating to hours, which are referred to here, focus on the issue of when and how many hours the employee works. The overtime provisions, referred to in the next subsection, deal with the separate issue of how much additional pay employees are entitled to if they exceed a specified number of hours.

Unless the collective agreement provides otherwise, the employer has the authority to establish schedules, start times and shift changes. The agreement may provide for a guaranteed number of hours. This would be a provision the union would wantand the employer would prefer to avoid. The agreement might specify the work days, hours of work and details regarding shifts.

If the agreement specifically sets out such items, the employer wouldhave to get the consent of the union to make any changes. The employer would prefer to avoid having work days, hours of work and details regarding shifts in the contract. Instead, it might be provided that notice will be given for shift and other scheduling changes. The union would prefer longer noticeand a provision that there will be compensation provided if the required notice is not given.

Conversely, the employer would prefer to maintain as much flexibility as possible, have notice periods be shorter and avoid any compensation if adequate notice is not given. The agreement might also provide that a premium be paid for certain shifts, such as nights.

Overtime Employment standards legislation provides for minimum rules regarding overtime, which vary between jurisdictions. Such legislation requires the employer to pay a premium of 1.5 times the regular hourly wage rate for hours worked in excess of a set number of weekly hours for example Ontario = 44; Alberta = 8 hours a day and 44; Newfoundland and Labrador = 40).

Typically, unions will seek to improve upon the legislated minimums in collective agreements.

Overtime legislation and collective agreement terms should be kept separate from hours of work terms and legislation. Overtime deals with the issue of when an employee is entitled to additional pay for working extra hours and the amount of the additional compensation. The employer can impose overtime unless the agreement provides otherwise. It could require employees to work overtime as long as the employment standards legislation and collective agreement provisions relating to the hours of work are complied with. Overtime laws may also allow the employer and a union to enter into an overtime averaging agreement. For example, In Ontario, an agreement could see an employee on duty for the following weekly totals (48, 40, 56 and 32) and not receive any overtime payment in that period as the average weekly worked hours does not exceed 44.

Hours-of-work provisions in employment standards legislation usually provide an exception for emergencies. Unions will seek to have agreement terms that require notice to employees or their consent for overtime. Employees do not have a right to overtime unless the agreement provides for it. Unions may push for terms that require an equal distribution of overtime or alternatively give priority to employees with more seniority. Some arbitrators may award cash to an employee who has not been correctly allotted overtime, instead of ordering the employee be .

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given the next opportunity to work overtime. Employers would prefer that the agreement clarify that the remedy is the next opportunity to work.

Public Holidays Statutory holidays such as New Year’s Day and Thanksgiving are paid days off, and should not be confused with vacations, which are discussed below. The collective agreement must provide for at least the minimum holidays required by employment standards legislation in the jurisdiction. The union may seek to have the agreement provide for additional public holidays.

The parties should clarify the issue of when a public holiday falls on a day that is not ordinarily a working day for an employee, or during the employee’s vacation; the employee is typically entitled to either a substitute holiday off with public holiday pay or public holiday pay for the public holiday—if the employee agrees to this in writing (in this case, the employee is not given a substitute day off).

Vacation Employment standards legislation provides for a minimum amount of vacation time and pay for employees. The vacation entitlement in the legislation is not very generous, and it is common for the collective agreement to provide for greater vacation time than the legislation requires. Figure X lists issues relating to vacations.

Leave of Absences Employment standards legislation continues to expand the type of leaves of absence in keeping with changing social norms. The collective agreement might provide employees with numerous types of leave, some of which have legislated minimums. The employer and the union will have to negotiate what leaves are to be provided and the extent to which any leaves will exceed the minimum the law provides.

JURY DUTY Legislation provides that the employer must grant leave for jury duty and protect the job, seniority and benefits of employees. However, the compensation paid to individuals by the court system for jury duty is minimal. Unions may seek to have articles added to the agreement to provide that the employer will pay any difference between the allowance paid to jurors and the employee’s pay.

BEREAVEMENT LEAVE Employees are entitled to bereavement leave as provided in the employment standards legislation governing their workplace. The legislation usually provides for leave in the event of the death of specified relatives, most commonly the employee’s spouse, child, parent or guardian, sibling, grandchild or grandparent. The length of the leave varies across jurisdictions from one to five days, and it may depend on the nature of the relationship.

Most bereavement leave provided in legislation is unpaid; however, there are exceptions.

Federally regulated employees who have been employed for at least three months are entitled to leave on any normal working day that falls within the three-day period immediately following the day the death occurred.v

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MATERNITY LEAVE Employment standards legislation provides for unpaid maternity leave that ranges from 15 to 18 weeks depending on the jurisdiction. Employees entitled to maternity leave may also be entitled to additional unpaid parental leave. The unpaid leave should not be confused with the monetary benefits provided by the federal Employment Insurance Act. In December 2017, the Government of Canada changed rules related to maternity and parental leaves whereby new parents may opt for either 12 months or 18 months of combined maternity and parental leave. In some jurisdictions, employees are entitled to maternity leave as soon as they start employment. In other jurisdictions the employee must have been employed for a minimum period of time. The legislation also contains rules regarding notice to commence the leave and to return to work, restrictions on when the leave can commence and provisions regarding extension of the leave. Any collective agreement terms regarding maternity leave must at least meet the standards provided for in the relevant federal, provincial, or territorial legislation. The union representing bargaining unit members may seek leave provisions greater than the legislated minimums.

PARENTAL LEAVE Employment standards legislation at federal, provincial, and territorial levels provides for parental leave associated with the birth or adoption of a child. In some jurisdictions, the leave must be split between the parents; in others, including Ontario, both parents are entitled to the leave. There are rules regarding eligibility that vary across jurisdictions. The legislation sets out requirements regarding notice to commence the leave and notice to return to work, and restrictions on when the leave can commence. Under changes to the Canada Labour Code in late 2017, if both parents work for a federally regulated employer, the two parents are entitled to a combined parental leave of up to 63 weeks. Parents have the option of taking their parental leave at the same time, or one after the other, as long as the total combined parental leave does not exceed 63 weeks. However, for mothers, the total duration of the maternity and the parental leaves must not exceed 78 weeks. Any collective agreement terms regarding parental leave will have to at least meet the standards provided for in the relevant legislation and should address the issues referred to in Figure X Leave of Absence Issues.

SICK LEAVE Under the Canada Labour Code, federally regulated employees are entitled to unpaid sick leave protection of up to 17 weeks if they have worked for the same employer for at least three consecutive months. Sick leave pay may be claimed through Employment Insurance benefits. Sick leave is dealt with in varying ways across Canadian jurisdictions, increasingly through emergency or personal leave coverages in employment standards legislation. Prince Edward Island is unique in Canada in that it does impose a mandatory single paid sick day, provided the employee has been with the employer for at least five years. Manitoba and Nova Scotia both provide for three days of unpaid family leave, which includes personal illness and family responsibilities. Alberta allows for five days of unpaid leave per year for personal emergencies and caregiving responsibilities related to education of a child. Newfoundland and Labrador lumps together similar family responsibility leave with personal sick days, providing seven unpaid days in total. Ontario requires employers to offer personal emergency leave to 10 days per year for all employees, with at least two paid days per year for employees who have been employed for at least a week. Quebec provides for leave due to obligations relating to the health, custody or education of a child or the child of a spouse, as well as the health of a close relative. The leave amounts to 10 unpaid days. British Columbia has recently introduced paid

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sick leave. However, Saskatchewan do not require employers to pay employees away from work due to sickness.

Unions will seek in collective bargaining to provide increased entitlement and payment for legislated sick leave. The collective agreement might provide for a system of sick leave credits in which employees will accumulate a certain number of sick days for each week or month worked, and the days can later be used if the employee cannot work. The employee will be entitled only to the sick credits accumulated. Employers may prefer to avoid this type of system so that they do not have to pay out unused sick credits on termination. Instead of a credit system, the agreement might provide for leave with pay, specifying the length of the leave and the amount of the pay. It might provide that the length of the leave increases with seniority and the pay diminishes with a longer leave. For example, the pay provided might be 100 percent of regular pay for the first week and 75 percent of pay for an additional 10 weeks.

UNION LEAVE Collective agreements commonly provide for unpaid leave for union officers such as a union local chief steward to attend to union matters. This type of leave can be either short term—to allow for attendance at union conventions and other meetings—or long term—to allow for taking on a union executive position or serving the union in some other manner such as a business agent.

PERSONAL LEAVE In addition to the various specified leaves already referred to in this section, some Canadian jurisdictions have expanded the circumstances under which a leave of absence may be taken by an employee without risk to their employment status. Some examples to the types of circumstances include: •

Compassionate care leave (Federal)

•

Leave related to the death or disappearance of a child under 18 years (Federal)

•

Reservist leave (Federal)

•

Domestic or sexual violence leave (Ontario)

•

Personal and family responsibility leave (Alberta)

For personal leaves of absence not covered in legislation, collective agreements often refer to such absences as being at the employer’s discretion—that is, the employer may grant the leave but does not have to. An employer might be surprised to find out that some arbitrators have required employers to act reasonably when they consider whether to grant such leave. This means that even though an agreement states that the employer may or may not grant the leave, it will have to show a valid reason to deny it. Unions would prefer that the agreement confirm that the employer may not unreasonably deny a leave. Employers would prefer that the agreement provide that the employer has sole discretion to grant or refuse leave, and the decision cannot be grieved, provided that it is made in good faith.

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Wages The collective agreement will set out the wages that are to be paid to various job classifications, including any compensation increases that will be made over the term of the agreement. The pay rate and procedure stated in the agreement will have to comply with employment standards and human rights legislation. Employment standards legislation establishes rules including a minimum wage and the form of payment most often direct deposit or (cash or cheque Unless the agreement provides otherwise, management can change the job classifications referred to in the agreement, provided the change is prompted by a valid business reason.

Consequently, the union may seek to have the agreement provide that job classifications will not be changed for the term of the agreement, or that the union will be consulted if there are any such changes. The union would prefer that if the parties cannot agree on a classification the matter be referred to arbitration. In addition to the wages, the agreement might provide for numerous additional allowances and payments including shift premiums, mileage allowances, pay for meals, additional pay for hazardous work and clothing allowances. Employment standards legislation provides a minimum amount that employees who report for, or are called in to, work must be paid. The union may seek to have the agreement provide for call-in pay that is greater than the minimum set out in the legislation.

Inflation is once again a serious concern for employers and unions. Inflation on goods and services purchased by Canadians was approximately 5% in 2022. The cause of this inflation is likely due to supply chains concerns and COVID-19 demand for goods and services rising faster than supply. Unions continue to seek cost-of-living allowances (COLA) in collective agreements to protect against the risk of inflation and to sustain the purchasing power of its members. COLA provisions may require that an increase in pay will be provided to employees on the basis of a formula linked to the rate of inflation.

Benefits In addition to the legally required benefits such as the Canada Pension Plan (CPP) and Employment Insurance (EI) to which employers must contribute, there are many additional voluntary benefits that collective agreements may provide, including dental care, drug expenses, eye care, life insurance, semi-private hospital care, disability protection and pension plans.

Health and Safety All jurisdictions in Canada have health and safety legislation that sets out rights and obligations for employers and employees. Pursuant to the legislation, employers have a duty to establish and maintain a safe workplace. Employees must follow safe work practices and use protective equipment. Joint health and safety committees or representatives must be appointed, and employees have the right to refuse unsafe work. The legislation is enforced by inspections and provides for the prosecution of employers and employees who do not comply. A reference to health and safety legislation across Canadian jurisdictions is found at the Canadian Centre for Occupational Health and Safety (CCOHS).

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Technological Change Labour relations legislation in some jurisdictions regulates the introduction of technological change into the workplace. The legislative provisions range from requiring the parties to submit any disputes relating to technological change to arbitration such as in New Brunswick to requiring notice from the employer and mid-term bargaining in four jurisdictions including Canada, Manitoba, Saskatchewan and British Columbia. In other jurisdictions, including Ontario, the legislation does not deal with the issue. In jurisdictions without technological change legislation, the employer will be able to introduce technological change relying on the management rights article, unless the collective agreement imposes limitations. Unions will likely seek collective agreement terms to protect against technological change causing job losses.

Employers would prefer to avoid such provisions to be able to maintain flexibility and reduce costs.

In any article dealing with technological change, a critical issue will be its definition. It might be defined narrowly to include only new equipment that causes job loss, or more broadly to include additional matters such as changes in methods of operations and techniques to complete the work. The definition can be extremely important as it will determine whether the notice and other protective measures referred to below are available. In one case, the agreement defined technological change as involving equipment of a different kind or purpose, and it was held that a change made to an existing computer system did not fall within the definition.

There is a broad range of protection that might be provided for employees if there is a technological change. The agreement might simply require the employer to give a specified period of notice to the union. The agreement may require the parties to negotiate the implementation and effects of the change and to refer disputes on issues to arbitration. The most restrictive type of provision might provide job guarantees for employees. Articles might provide for income protection in the event that an employee’s job is reclassified due to the change or if the employee is transferred to a lower-paying job. Another possibility is a provision for retraining and preference in future job openings. If the employee’s job cannot be saved, the agreement might provide for a severance payment.

Contracting Out Contracting out refers to an employer arranging for another organization to do work that is, or could be, done by the employer’s own employees. Employers will want to maintain the capability to contract out to provide flexibility and reduce costs, For example, if a hospital had its own laundry staffed by hospital employees, it could contract out this work to a laundry service provider. This will mean that the employees who formerly did the work will not be needed and layoffs could result. Unions will seek to have language in the agreement that prevents or restricts contracting out to protect existing jobs in the bargaining unit. Their motivation is to protect the size and influence of the bargaining unit in the work setting. A reduction of jobs also means a loss of revenue by the union caused by fewer union dues being collected. Arbitrators have held that if there is no collective agreement term preventing contracting out, an employer is free to contract out provided it is done in good faith and for a sound business reason. It should be noted that contracting out in this context is not the same usage referred to earlier in this text regarding .

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setting terms in the collective agreement that are not in keeping with minimum guarantees under employment standards, health and safety or other legislation and are separate from any restrictions relating to previously referred to restrictions on bargaining unit work.

Prohibited Terms So far collective agreement language has been grouped into required and voluntary categories. It is important to know that there are prohibitions placed on unions and management regarding the inclusion of prohibited terms in collective agreement terms that reflect unfair labour practices or run contrary to human rights laws.

Union Business 1. Will the agreement require that union information be provided to new employees?

2. Will the agreement require the employer to provide bulletin boards, provide office space or allow union meetings on the employer’s premises?

3. Are union officials allowed to conduct union business during work time?

III. Review Questions 1. Identify the required terms that must be included in a collective agreement.

The following mandatory terms: • recognition of the union • a prohibition against strikes and lockouts during the term of the agreement • a provision for the arbitration of disputes relating to the administration of the agreement • a minimum term of one year 2. Discuss a situation in which an employer may assign work normally done by bargaining unit employees to employees outside of the unit, including supervisors.

Yes. Unless there is a restriction in the collective agreement the employer can assign bargaining unit work to other employees. Accordingly the union may seek collective agreement provisions to prevent other employees from doing bargaining unit work. Employers would prefer to avoid this type of restriction entirely or ensure that collective agreement provisions do not prevent employees outside the bargaining unit from doing work in emergency or training situations.

3. Explain the meaning of the phrase contract out, of bargaining unit work and provide reasons why unions seek restrictions on contracting out.

Contracting out refers to the employer arranging for an independent contractor or another firm to do the work that would normally be done by bargaining unit employees. Contracting out threatens the job security of employees in the bargaining unit. Unions seek restrictions on contracting out because the employer is allowed to contract out if there is no collective agreement term preventing it. .

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4. Why would an employer seek to have a specific penalty for misconduct included in the collective agreement?

Generally an arbitrator has the authority to reduce the discipline imposed by the employer. If an employee has been discharged, an arbitrator could order that a suspension is the proper discipline and direct that the employee be reinstated. If the employer has suspended an employee an arbitrator could reduce the length of a suspension. However, when the collective agreement provides for specific penalty for misconduct the arbitrator cannot reduce the penalty imposed.

Therefore employers may seek specific penalties for misconduct to avoid having an arbitrator reduce the penalty that has been imposed.

5. Explain why a union would seek to have provisions regarding technological change included in the collective agreement.

Technological change threatens the job security of employees. Although some jurisdictions have legislation regulating the introduction of technological change, this legislation does not provide employees with extensive protection. The majority of jurisdictions do not provide technological change provisions in labour relations legislation. Although this question does not ask about the protection that could be provided to employees, collective agreements could provide employees protection such as increased notice of change, job guarantees, retraining, and increased severance payments.

6. Describe the preferences of the union and the employer regarding any personal leave provisions in the collective agreement.

Union Preferences:

Employer Preferences:

Broad definition of matters allowing employees to take leave

Narrow definition of matters entitling employees to take leave

No maximum, or longer maximum leave

Shorter maximum leave

Employees entitled to leave as a right

Provision requiring employees to apply for leave and allow employer to deny leave

IV. Discussion Questions 1. How can an employer ensure that the time limits provided in the grievance processes will be enforceable?

Time limits in the grievance process could be directory or mandatory. Employers should seek mandatory time limits in the collective agreement. To clearly establish that the time limits are mandatory it may be necessary to have the contract specifically provide that the grievance is deemed to be abandoned or cannot proceed if a time limit is not met. Employers in some jurisdictions have an additional problem even if the time limits are mandatory. Labour relations legislation in some jurisdictions allows an arbitrator to extend a time limit, even if it is .

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mandatory, if the other side is not prejudiced and the agreement does not prohibit the extension.

Accordingly, the employer may wish to go further and have the collective agreement specifically provide that the arbitrator does not have the authority to extend a time limit in the grievance process.

2. The grievance procedure in a collective agreement provides that a union grievance “shall not include any matter upon which an individual employee would be personally entitled to grieve. …” Why would a union want to negotiate the removal of this provision from the collective agreement?

This provision would prevent a union from filing a policy or union grievance in any situation where an individual employee could have filed an individual grievance. A union may be concerned that individual employees may not file grievances for a number of reasons: • • • •

employees may be intimidated by management employees may not wish to be perceived as troublemakers employees may perceive that filing a grievance will harm their future job prospects employees may not think an issue is important enough to pursue a grievance.

3. A unionized employer is hiring students to work in its office and production departments for the months of May through August, on both a full-time and a part-time basis. How would the employer determine whether union dues should be deducted from the students’ pay?

To answer this question the employer would have to determine 1) if the students are included in the bargaining unit, and 2) if students are included in the bargaining unit is their consent required to deduct union dues? To determine if students are included in the bargaining unit the employer will refer to the recognition article in the relevant collective agreement. If the bargaining unit only includes production employees and excludes office employees, students working in the office are not included in the bargaining unit and union dues do not have to be deducted. If the bargaining unit only includes full-time employees, part-time students would not be in the bargaining unit and dues would not have to be deducted. Even if students are included in the bargaining unit there are some jurisdictions in which the consent of the employee is required before dues can be deducted.

4. Explain the importance to the union of union security provisions in a collective agreement and the implications of these provisions to the employer.

Union security provisions relate to the deduction of union dues from employees' pay and the possible requirement that employees be union members. Without the dues deduction provision the union would be forced to pursue employees for dues. The dues deduction is important for the union because it provides a financial base. A membership requirement could increase the solidarity of the bargaining unit by avoiding a split between union and non-union employees.

The deduction and remittance of union dues will impose one more administrative task on the employer. There is a possibility that union security provisions could affect the recruiting and selection of employees. There may be some individuals who would not work at an organization .

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where union membership and the payment of union dues are required. Mandatory union membership may provide the union with more control over bargaining unit employees and accordingly may be something that the employer wishes to avoid. If there is a strike, an employee who refuses to strike and continues to work could be disciplined by the union. This discipline could include expulsion of the employee from the union in some jurisdictions. Where the collective agreement provides that union membership is required for employment, the end result could be that an employee who continued to work during a strike could be discharged.

Accordingly, the requirement of union membership for employment, together with the possibility that union membership can be withdrawn by the union for refusing to strike, provides the union with a stronger position when dealing with the employer.

5. Why do unions want specific provisions relating to issues such as discrimination and health and safety included in collective agreements even though there is legislation covering these issues?

Unions could seek collective agreement provisions in these areas for several reasons: 1) to emphasize and educate. By having contract provisions relating to discrimination and health and safety union and employer representatives are reminded of the importance of these issues.

2) to obtain additional protection. Collective agreement provisions could provide for higher standards than the legislation. For example, the agreement could provide for a larger health and safety committee than the legislation requires.

3) changes in legislation. The union may be concerned that if the legislation is relied upon it could be amended.

6. An employer and a union have been discussing what will happen if two employees are hired on the same day. The concern is how to determine who has the most seniority. The employer has proposed that the tie be broken on the basis of the employees’ birthdays—the employee with the earliest birth date would be deemed to have the most seniority. Explain any problems that could arise if this tie-breaking formula is adopted.

The tie-breaking formula based on birth dates could lead to problems relating to discrimination. It has been held that a tie-breaking formula based on age or birth date is discriminatory because age is a prohibited ground of discrimination.

7.

Why would an employer want restrictions on bumping in the collective agreement?

Employers want to ensure that employees are qualified for jobs. Accordingly, employers would want any bumping to be subject to a restriction that employees have the skill and ability required.

Employers may also wish to avoid a series of bumps that disrupt the workplace. For example, if employee A bumps employee B who bumps employee C etc. there could be significant disruption. This could be avoided by having contract language that restricts the number of .

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bumps. One such restriction would require employees to bump the lowest seniority employee possible.

8. An employer is negotiating a first contract with a union. It has found two alternative provisions regarding job vacancies that could be included in the agreement: (a) One provides that seniority will be the determining factor if the KSAs of two contending employees are equal. (b) One provides that the employee with the most seniority will be awarded the job provided that they have sufficient ability to do the job.

Decide which of the two provisions the employer should seek to have included in the collective agreement and explain why: Provision (a) is a relative or competitive ability clause. It provides that seniority will only be a factor in the decision if two employees have equal ability. If an applicant for a job vacancy has more skill and ability the employer will be able to choose him or her even though they may have less seniority than other applicants. For example, if employee A has ten years seniority and employee B (who has more ability) has only five years seniority, the employer will be able to select B even though B has less seniority. Provision (a) is the term that the employer should try to have included in the collective agreement because it places more emphasis on skill and ability and less emphasis on seniority. Provision (b) is a sufficient ability clause. It provides that the employee with the most seniority only has to have enough ability to do the work. With provision (b) an employee with the most seniority and enough ability must be given the job even though another employee has more skill and ability.

The employer should avoid provision (b) because it places more emphasis on seniority and gives skill and ability less weight.

9.

You are part of a management team that is preparing to negotiate a renewal of a collective agreement. The agreement contains the following article: “All job vacancies shall be posted for three days. If there is more than one applicant for a job positing plant seniority shall prevail.” Explain how the present wording of the agreement may be unfavourable to management and how the provision should be changed from management’s perspective.

The present wording does not define a job vacancy. Management would prefer a provision that defined a vacancy as being an opening that will be for more than a minimal number of days.

There is no reference to skill and ability. Management would prefer a competitive ability provision that only refers to seniority if employees are equal in ability.

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10. Describe the preferences of the union and the employer regarding any overtime provisions in the collective agreement.

Possible Union Preferences:

Possible Employer Preferences:

Voluntary overtime

Mandatory overtime

Equal distribution of overtime

No restrictions on distribution

Distribution of overtime on the basis of No restrictions on distribution seniority Cash remedy distributed

if

overtime

is

incorrectly Opportunity to work if overtime is incorrectly distributed

Longer advance notice of overtime work

Shorter advance notice of overtime work

Overtime defined to provide for a lower threshold

Overtime defined to provide for a higher threshold

Overtime rate higher than legislated minimum Overtime rate at legislated minimum Restrictions on use or maximum amount of No restrictions on use of overtime overtime allowed Additional payments such transportation allowance

as

meal

or No additional payments

11. A collective agreement provided for the following definition of technological change: “Technological change … shall include automation, mechanization, and process change, and means the introduction of equipment or material of a different nature or kind than that previously utilized. …”

The employer had an existing IT system in its two locations, to a cloud. Changes were made to the IT system that resulted in layoffs. The union claimed that there had been a technological change, and accordingly certain protection in the collective agreement was available to employees. What could the employer’s response be?

The employer’s response could be that there has not been a technological change as defined in the collective agreement. The collective agreement refers to the introduction of new equipment or material of a different nature than previously used. In this situation the employer is only making changes to existing equipment. In the case that this question was based upon, Re Ellehammer, 48 LAC (4th) 26, the grievance was dismissed. This question illustrates the importance of the definition of technological change provided in the collective agreement. Employers would prefer a narrow definition, while unions would prefer a broader definition.

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12.

A collective agreement provided that an employee would be entitled to five days’ leave with pay upon the death of a parent. Yie worked Monday through Friday. Her stepfather died on a Saturday. If you represented the union, what leave would you claim Yie is entitled to? If you were the employer’s HRM department, and you wanted to reduce the leave as much as possible, what would your position be? If you were an arbitrator what leave would you order be provided to Gwen: The union would claim that Yie had lost a parent and they are entitled to five working days of leave - Monday through Friday. The employer could take the position that the collective agreement provided for leave on the death of a parent and this does not include a stepfather.

Alternatively, the employer could contend that the leave provided for in the agreement began on Saturday and accordingly Yie was only entitled to Monday through Wednesday as leave.

Although it may be hard to believe, this question is based on an actual case, Re Essex, 65 LAC (4th) 85, where the employer made the arguments referred to here. The arbitrator in the case held that a stepfather was a parent and that the employee was entitled to five working days of leave.

The arbitrator ordered the employee to be given two additional days of leave with pay. This question illustrates that terms such as parent and days should be clarified in the collective agreement.

13. One of the union’s concerns is job security. Which articles in the collective agreement will directly or indirectly affect job security?

The following articles could directly or indirectly affect job security: Recognition article. If the bargaining unit is broadly defined, for example it includes part-time employees, employees will still be protected by the provisions of the collective agreement if they move to a job which might otherwise not be included in the bargaining unit.

Bargaining unit work. Restrictions on individuals outside of the bargaining unit from doing bargaining unit work could increase job security.

Contracting out. Restrictions on contracting out will increase job security. A complete ban on contracting out, although unusual, would provide the most job security.

Discipline and discharge. If an arbitrator is able to review the discipline imposed by the employer an employee who has been discharged could be reinstated. An arbitrator cannot reinstate an employee if the specific penalty of discharge for certain misconduct is provided for in the collective agreement. Accordingly, a collective agreement that does not provide for the specific penalty of discharge provides greater job security.

Seniority. If the seniority provisions in a collective agreement require an employee to have sufficient ability to do a particular job, as opposed to a relative ability provision, an individual employee's job security may be increased if they have more seniority. If employees must establish that they have ability equal to other employees their job security may be reduced because seniority has less weight in job decisions.

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Super-seniority. A super-seniority provision in the collective agreement could provide increased job security to union officials.

Technological change. Technological change provisions that place restrictions on change and require employers to engage in retraining efforts increase job security.

Grievance and arbitration procedure. Although this may be stretching the point, the nature of the grievance and arbitration procedure could have indirect implications for job security. If the time limits in the grievance procedure are directory, it is possible that in the event of a discharge where there has been a failure to meet a time limit, the grievance will still be arbitrable and the employee could be reinstated. Contrast this to a situation where the time limits are mandatory and the arbitrator's authority to extend a time limit has been eliminated. In the later case, if a time limit were missed a grievance relating to a discharge would not be arbitrable.

V. Web Research 1. Examples of required and voluntary clauses should be consistent with these provisions identified in the text. Depending on how the language is constructed, the language identified can favour the union or management.

2. Canadian jurisdictions should be similar in nature with respect to dues check off, union membership requirements, and religious exemptions.

3. It is important to note that different jurisdictions may have different requirements for paying for public holidays.

4. There have been several employment standards revisions in most jurisdictions in Canada.

This most notable impact has been in Ontario with several regulations being amended in 2017 only to be repealed in 2018 by a different government.

VI. Vignette So, What Is the Value of a Collective Agreement?

A collective agreement outlines the terms of the employment relationship between employees and their employer for unionized employees. Many collective agreements includes terms outlining employees’ important rights, working conditions, and total compensation. This became abundantly clear during the COVID-19 pandemic when unions strived to ensure safe working conditions for their members.

A collective agreement also affords marginalized employees protection by working to reduce racial and gender wage differences. The Canadian Union of Public Employees or CUPE, advocates for collective agreements that support marginalized employees – women, persons with disabilities and racialized, LGBTTI and Indigenous employees. Human rights are a centre piece of CUPE collective agreements. Collective agreements also add value to employees with terms pertaining to childcare, anti-harassment, violence prevention including domestic violence, worklife balance, and family leave. .

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A collective agreement could also add value to employees’ lives with the inclusion of terms pertaining to employees’ mental health. Specifically, a collective agreement could define increased medical and paramedical benefits for mental health practitioners’ improved access to counselling services and improved employee assistance programs.

Collective agreements also add tremendous value to both the organization and its members with defined terms pertaining to the cradle to grave HRM practices. These include employee recruitment and selection, training, compensation and benefits, and promotion.

VII. Case Incident: Grant Office Ltd. The purpose of this incident is to illustrate the critical point that if there is no explicit restriction on contracting out work, the employer can do so. For a case illustrating this point refer to CAW v.

Bristol Aerospace Limited http://www.canlii.org/en/mb/mbca/doc/2008/2008mbca62/2008mbca62.html 1

a) What is does bargaining unit work mean? b) In Article 1, how would this term apply?

Bargaining unit work is the work normally done by employees in the bargaining unit. In this case, the Company agrees that work normally performed by employees within the bargaining unit shall continue to be performed by bargain unit employees.

2. a) What is meant by seniority and who do unions prefer it to be included in a collective agreement? b)What is the significance of seniority in this case?

Seniority is an employee’s length of service with the employer. Unions prefer seniority to apply to more workplace issues and for seniority to be given more emphasis, because this provides increased job security for longer-term employees and avoids favoritism by management. In this case, seniority with the Company shall continue to accrue the benefits during an employee’s period of layoff, as long as the employee remains eligible for recall. However, an employee on layoff shall not be entitled to any benefit conferred by this Agreement on regular employees, except as specifically provided for in this Agreement.

3. What is the value of paragraphs one and two in the letter of understanding to both the union and the employer in this case?

The value of paragraphs one and two in the letter of understanding to both the union and the employer in this case is that both the parties have finally agreed to a point of collective agreement that is partially benefited to both the parties. It provides a framework of continuing the company’s operation and both union and the management have agreed to work accordingly. The agreement explains the meaning of the term “temporary work” and, a temporary work list will be created on a classification-by-classification basis.

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4. Do you think management representatives could successfully use Article 1 in the agreement to defend their decision to contract with General Management Company? Why: The employer's response will be that the contract contains a provision which protects bargaining unit work; however, it does not prohibit contracting out with an external company and these are entirely separate issues. A term protecting bargaining unit work does not prohibit contracting out.

However the term will not be used in such a way as to cause the layoff to the existing employees. i

Laurence Olivo and Peter MeKeracher, Labour Relations: The Unionized Workplace (Toronto, ON: Emond Montgomery Publications Ltd., 2005), pp. 149–50. ii

Singh Lamarche LLP, “Probation Periods in Canada: what are they and what do they mean?”

(2018), http://singhlamarche.com/probation-periods-canada-mean/, accessed April 26, 2018. iii

Ontario Human Rights Commission, Human Rights at Work 2008—Third Edition, http://www.ohrc.on.ca/en/iv-human-rights-issues-all-stages-employment/7-pay-benefits-dresscodes-and-other-issues, accessed April 27, 2018. iv

Krista G. Stringer and Travor C. Brown, “A Special Kind of Downsizing: An Assessment of Union Member Reaction to Bumping,” Relations Industrielles, vol. 63 (2008), 648. v

Government of Canada, Federal Labour Standards. Leave (October10, 2017), https://www.canada.ca/en/employment-social-development/programs/employment/standards/federal-standards/leave.html, accessed April 28, 2018.

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CHAPTER 8 NEGOTIATION OF THE COLLECTIVE AGREEMENT Preface This chapter will examine the practices, procedures, and tactics of traditional, adversarial collective bargaining. At the end of the chapter, an alternative, interest-based approach will also be discussed. Every year, thousands of collective agreements are negotiated in Canada. The negotiation process is critical for employers, unions, employees, and the public. The process and the resulting collective agreements determine employer costs, employee compensation and job security. Strikes and lockouts, which are occasionally a part of the process, might affect the availability of goods and services to the public.

Learning Objectives 8.1 Identify the factors and significance of the bargaining structure.

8.2 Outline the sub-processes of negotiation.

8.3 Describe the importance of the union–management relationship.

8.4 Explain practices and procedures in traditional adversarial bargaining.

8.5 Outline the implications of labour relations legislation for negotiation.

8.6 Identify strategy and tactics used in positional or distributive bargaining.

8.7 Describe the principles of interest-based bargaining.

Outline/Table of Contents I. II. III. IV. V. VI. VII. VIII. IX. X. XI. XII. XIII. XIV. XV.

Bargaining Structure Sub-processes in Negotiation Union–Management Relationship Negotiation Process First Contract Arbitration Strategies and Tactics in Distributive Bargaining Bargaining Power Conciliation, Mediation, and Interest Arbitration Memorandum of Settlement and Ratification Principles for Interest-Based Bargaining from Getting to Yes Review Questions Discussion Questions Web Research Vignette Case Incident

I.

Bargaining Structure

The certification process results in a union representing a specified group of employees working for an employer at one or more locations. At minimum, contract negotiations must involve at .

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least one employer and one union representing employees working at one location. That is, negotiations must cover at least one certified bargaining unit. However, an employer might be dealing with one or more unions at one or more locations, or several certified bargaining units.

There may be more than one employer in a province or territory with the same type of employees. For example, there may be several colleges in a province employing faculty at different locations. Labour relations legislation may require, or the parties might agree, that contract negotiations cover several locations, or include different unions, or even more than one employer. To relate this to certification, the parties can agree to have contract negotiations cover more than one certified bargaining unit. Bargaining structure refers to the number of unions, employers and locations or establishments involved in contract negotiations.

Possible Bargaining Structures There are numerous possible bargaining structures, depending on the number of employers, unions and locations involved in contract negotiations.

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Single employer, single establishment, single union. This structure is common in Canada.

The employer may have more than one location or more than one union at a location; however, negotiations are conducted between the employer and a union representing one group of employees at one location. For example, at a hospital there might be separate bargaining units for nurses, kitchen, and maintenance employees, each of which is represented by a different union. The contract negotiations for the three bargaining units are conducted separately, and there are three separate collective agreements.

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Single employer, multiple establishments, single union. The auto industry is an example of this type of structure, which involves the negotiation of one collective agreement that will affect the various workplaces operated by the employer. There may be a master agreement between the employer and the union and secondary agreements that involve only the locals at each workplace.

Other bargaining structures include combinations such as a single employer with a single establishment, negotiating with multiple unions; however, they are rarely found in Canada.

Centralized vs. Decentralized Bargaining An important feature of possible bargaining structures is the degree of centralization involved.

Centralized bargaining refers to contract negotiations that involve one or more of the following: multiple employers instead of a single employer; multiple establishments instead of a single establishment; and multiple unions instead of a single union. Centralization reduces the number of rounds of contract negotiations. Centralization is not a yes-or-no issue; rather, negotiations should be viewed as being more or less centralized. Industry bargaining is a structure in which multiple employers, with multiple locations, bargain with a single union. This type of structure might be found in hospitals where the hospitals in a province negotiate with a provincial nurses’ union and the agreement covers all locations in the province. Decentralized bargaining is a more common form of negotiations involving one employer and one union representing employees at one location. .

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FACTORS AFFECTING BARGAINING STRUCTURE decentralized for a number of reasons.

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Bargaining structure in Canada is

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The division of legislative and administrative authority for labour relations among provincial and federal governments is a factor. If an employer had one location in Ottawa and another a few kilometres away in Gatineau, Quebec, the two establishments would be organized in separate bargaining units in each province and would be subject to different labour relations legislation governing contract negotiation. The existence of separate provincial and territorial jurisdictions makes negotiation more complex for a group of employees spread across business operations found in different provinces.

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Labour Relations Boards in each jurisdiction in Canada can decide on the appropriateness and certification of union bargaining units, which in turn can lead to decentralization in bargaining structures. In the past, some boards have established separate bargaining units for full-time and part-time employees, and separate bargaining units for employees at different locations in some provinces or territories. To facilitate organization, some boards have certified establishments in a municipality separately when there is no interchange of employees. Once a certified bargaining unit has been established, the bargaining for that unit will occur separately from other units unless the employer and the union agree otherwise.

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There may also be economic factors that favour a shift to decentralization. Some employers have recently attempted such a move so that they can deal with each establishment separately on issues related to cost of living adjustments or the required labour replacement costs associated with staff leaves of absence.

SIGNIFICANCE OF BARGAINING STRUCTURE Bargaining structure is significant because it can affect the negotiation process, the contract terms agreed upon, the incidence of strikes and lockouts and the relationship between the management and the union. Centralized bargaining might reduce the costs of contract negotiation because fewer negotiations are involved. However, it might make reaching an agreement more difficult. If there are different workgroups or different locations included in the same set of negotiations, these groups may have different priorities or interests. A group of workers in one part of a province might be more concerned with job security, and employees in other regions may demand better cost-of-living allowances.

Centralized bargaining may help the employer avoid the union practice of whipsawing.

Whipsawing is when a union negotiates with several employers and may reach a settlement with one of them—likely the one it can get the best deal—and then use this as leverage to get the remaining employer(s) to agree to similar or better terms. Employers might also use whipsawing against unions. If employers negotiate as a group, the union cannot strike one employer and force it to grant concessions to avoid losing business to the others.

In Canada, centralized bargaining has not led to fewer work stoppages and less time lost to strikes. More centralized bargaining can affect the relationship between the management and the union and alienate employees. Some employee groups may perceive that their interests have not been adequately met in negotiations and they may be frustrated. This in turn may affect their .

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relationship with the employer. The bargaining structure might affect the relative bargaining power of the union and the employer. In the banking industry, a decentralized bargaining structure—bargaining on a branch-by-branch basis—would likely leave each bargaining unit of employees with very little bargaining power.

There is variation in bargaining structures across industries and provinces and territories. In one province, contract negotiations for schoolteachers may be decentralized, with separate negotiations between numerous school boards and the teachers’ union. In the same province, the negotiation for college faculty may be centralized, with one set of negotiations between a body representing all colleges and the faculty union.

Informal Bargaining Structure There is an informal element in bargaining structure. Even in cases where the formal structure is less centralized, there may be factors in the bargaining situation that produce results or behaviours associated with more centralized bargaining. Although an employer might bargain separately with different employee groups, it might be difficult to grant wage increases to one group and not provide them to other groups. Another aspect of informal bargaining structure is pattern bargaining, where a union negotiates an agreement with one employer and then attempts to have it copied with other employers. Pattern bargaining has been common in the auto industry over the last several decades. Unifor selects one of the three Detroit big three auto manufacturers—likely the one it thinks it will be able to obtain the best contract from—as a target, negotiates a collective agreement with it, and then attempts to negotiate similar agreements with added gains for members as the union moves along in bargaining with each automaker.

In some situations, pattern bargaining does not mean the first, or lead contract negotiated and subsequent agreements are the same. Instead, there may be a standard pro-rated relationship between the lead and subsequent contracts. For example, in some provinces the union representing firefighters in smaller cities waits until the contract in a large city has been negotiated and then negotiates a similar contract providing for slightly lower compensation.

II.

Sub-processes in Negotiation

Negotiation brings up thoughts of individuals confronting each other across a table. Meetings between the parties are an important part of negotiation, but there is much more involved. In A Behavioral Theory of Labor Negotiations: An Analysis of a Social Interaction System, Richard Walton and Robert McKersie describe four sub-processes that might be involved in any bargaining situation: intra-organizational bargaining, distributive bargaining, integrative bargaining and attitudinal structuring.

Intra-organizational Bargaining The negotiators for the employer and the union must answer to their respective constituencies.

Union negotiators in particular must be concerned with obtaining the approval of the bargaining unit for any agreement negotiated. Within either side, there may be differences of opinion .

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regarding the objectives that should be pursued in negotiations and the methods that should be used. Some members of a bargaining unit may be more concerned with job security, while others give priority to a wage increase. Some employees may be more willing than others to strike to obtain a favourable agreement.

Intra-organizational bargaining refers to activities within the employer or union organizations to build an internal consensus of important issues. Union negotiators may face a problem reconciling the expectations of employees with additional information that they are provided during the course of negotiations. Union representatives may go into negotiations demanding a significant wage increase, which bargaining unit members perceive the employer can afford. In negotiations, the union bargaining team may be provided with financial information that shows the employer cannot afford the expected wage increase. This difference in information might lead to problems for union negotiators, because they know they have negotiated the best deal possible, but it does not meet the expectations of employees. The union negotiators will have to work to convince employees that the contract should be approved despite the initial demand for a large wage hike.

Distributive Bargaining Distributive bargaining refers to activities and behaviours that in many cultures are commonly associated with negotiations. It is used where resources are limited and there is a resulting conflict between the parties. A good example is the determination of wages: a gain for one party such as union request for wage increases involves a loss for the other such as the employer sees increased operating expenses and a decline in funds for capital projects, reserves or investments.

Because distributive bargaining is based upon demands made by the parties or positions taken, it is sometimes referred to as positional bargaining. The strategy and tactics of distributive bargaining are discussed below.

Integrative Bargaining Integrative bargaining refers to a form of negotiation or activity in which the parties’ objectives are not in fundamental conflict and there is a possibility of a win-win situation. For example, both the union and the employer would like to see workplace accidents reduced. Unions see improved safety records as a demonstration of their advocacy work with management. In addition to being concerned with employee safety, employers have a financial interest in reducing workers’ compensation costs.

Integrative bargaining could also be described as the basis for an alternative approach to traditional bargaining. This approach is referred to as interest-based or mutual gains bargaining.

In integrative bargaining, the parties focus on problem-solving and the interests of both union and management as opposed to demands or positions.

The distinction between demands or positions as opposed to interests is critical to an understanding of the distinction between distributive and integrative bargaining. Mary Parker Follett developed the following illustration. Suppose two siblings have one orange that they both want. In a distributive or positional negotiation, each sibling would demand the orange and .

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would try to justify their position. Perhaps one would say that the other got a previous orange.

The siblings would have to agree that one of the parties got the orange before, or they might compromise and cut the orange in half. In an integrative negotiation, the siblings would determine what their interests were. Each would find out why the other wanted the orange. They might find that one of them wanted the orange to use the peel in a recipe, and the other wanted it for the fruit inside to eat for a snack. An integrative approach, focusing on interests, might improve the outcome for both parties—a win-win.

Attitudinal structuring There are a number of possible relationships between union and management negotiators. Union and management officials may have little or no trust or be more or less cooperative with each other. Attitudinal structuring refers to the relationship the parties have and what they do to change their relationship. The relationship between the parties may be a concern for a number of reasons. The relationship could affect the likelihood of reaching an agreement. Where the parties are hostile in terms of language and behaviour during contract talks, they may miss opportunities for settlement on important issues. The relationship could also affect future negotiations and the administration of the collective agreement. Being called an offensive name or treated in an objectionable manner by a representative of the other negotiating team in the heat of hard bargaining may establish a long-term resentment by the person targeted in such a manner.

Representatives from both bargaining teams do have to work together once collective bargaining concludes. These negative experiences may interfere with a positive working relationship going forward.

In reality the four sub-processes are interrelated. An action aimed at dealing with an issue in one area might affect one or more of the other three sub-processes. If a negotiator in a distributive bargaining situation makes a concession in order to reach an agreement, this might affect the relationship with the negotiator’s constituents. Some employees might be unwilling to approve an agreement if concessions have been made that affect them. The failure to reach a consensus on demands—in other words, to resolve intra-organizational bargaining issues—will make distributive bargaining more difficult.

Implications of Sub-processes in Negotiation The sub-processes described by Walton and McKersie help us understand the complexity of negotiation and have important implications. Although some issues are distributive in nature— that is, a gain for one party necessarily involves a loss for the other—there may be room for an integrative approach on other issues. The relationship between the parties is important. The relationship could be a factor determining whether an agreement is reached and the contents of the agreement. Intra-organizational issues affect negotiators. Before negotiations, each side will have to work to obtain a consensus on their demands; after an agreement is reached, both may have to convince their constituents to ratify the agreement.

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III.

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Union–Management Relationship

The relationship between the union and the employer will vary according to each party’s views regarding the legitimacy of the other’s claims, the level of trust between the parties and the personalities of each of the management and union leaders. The nature of the relationship is important because it might affect the type of bargaining the parties engage in and the likelihood of a strike or lockout. The possible relationships between the union and the employer, the factors determining the relationship and the consequences of the relationship will be considered here.

Types of Union–Management Relationships The relationship between the union and the employer can be classified into one of five types: conflict, containment-aggression, accommodation, cooperation, and collusion.

CONFLICT The conflict relationship is the most hostile. In this relationship, the employer opposes the union’s representation of employees and only deals with the union as required by law. The union and the employer compete for the loyalty of the employees. The union views management as the enemy who is exploiting employees. Trust between the union and the employer is extremely low. The parties dislike or even hate each other to the point that there may be irrational behaviour to inflict damage upon the other. With this type of relationship, the parties will not be able to move away from distributive bargaining that is both harsh and critical, increasing the chances of a strike or lockout. The likelihood of alleged unfair labour practices is also high.

CONTAINMENT-AGGRESSION In a relationship classified as containment-aggression, the employer reluctantly accepts the union. The union attempts to increase its influence, and the employer attempts to contain or minimize the union’s impact in bargaining. The parties view each other with suspicion and are mutually antagonistic. Management may attempt to undermine the union with direct communication to employees through newsletters and meetings. With this type of relationship, it will be difficult for the parties to move away from distributive bargaining that is adversarial. The likelihood of alleged unfair labour practices is high.

ACCOMMODATION In an accommodating relationship, each of the parties recognizes the legitimacy of the other, and there is a moderate amount of respect between them. There is also, however, limited trust between the union and the employer. This type of relationship may allow the parties to move away from traditional adversarial bargaining.

COOPERATIVE In a cooperative relationship, the parties completely accept each other’s legitimacy in the workplace and are willing to collaborate. There is mutual trust between union and management leaders. This type of relationship is the one most likely to be the basis for more integrative bargaining.

COLLUSION In a collusive relationship, there is a coalition between the union and the employer to pursue common goals and practices that may be illegal. Management may pursue unfair competition practices or improper payments to themselves. The union goes along with this

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situation and does not adequately protect the interest of employees. In some cases, the employer may bribe union leaders to avoid labour problems.

Factors Determining the Union–Management Relationship Some of the factors that affect the union–management relationship are matters the parties have little or no control over. On other issues, the parties do have some control and might attempt to vary their position to change their relationship.

EXTERNAL ECONOMIC, TECHNOLOGICAL, AND LEGAL FACTORS The competitive environment the employer faces might affect the relationship with the union. If the employer faces an economic downturn or increased competition, it will place increased pressure on unions to maintain the status quo or offer concessions when bargaining the terms and conditions of work for its members. Technological innovation might lead to hostility when the employer seeks to implement changes that threaten job security of union members. The legal environment might also affect the relationship. The use of replacement workers when a union goes on strike may be constrained by law and thus influence dynamics related to hard bargaining on key issues.

PERSONALITIES OF LEADERS Union and management leaders may have personalities that make them more or less friendly, trusting or cooperative. Authoritarian personality types are typically more competitive, have lower levels of trust and are less tolerant of the views of others.

Certain authoritarian behaviours during negotiations may contribute to attitudinal structuring with resulting long-term harm to labour–management relations.

BELIEFS AND VALUES OF LEADERS The social beliefs of union and management leaders may also be important. Some employers may be dominated by free-enterprise employees or managers who do not believe in the legitimacy of unions. Some union leaders may have a basic mistrust of the capitalist market system that extends to resentment toward most managers.

EXPERIENCE WITH COLLECTIVE BARGAINING The relationship between union and management negotiators might also be affected by past experiences with collective bargaining. If either of the parties has had a negative experience with previous negotiations or the administration of a collective agreement, they could be more hostile. A manager who has had a decision challenged through the grievance process and experienced cross-examination at an arbitration hearing may be uncomfortable in some collective bargaining situations.

IV.

Negotiation Process

Notice to Bargain Either the union or the employer can give a notice to bargain a collective agreement. Labour relations legislation provides that once a notice to bargain has been given, the employer cannot change the terms and conditions of employment. This statutory freeze continues until the union has the right to strike or the employer has the right to lock out employees.

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Bargaining Teams The union and the employer will each assemble a bargaining team. Each side can include whomever it wishes on its team. Both sides have a duty to bargain in good faith, and it is a breach of this duty to object to the presence of an individual on the other side’s team. The size and composition of bargaining teams will vary according to the bargaining structure and the number of employees covered by the collective agreement.

EMPLOYER BARGAINING TEAM The employer bargaining team may include a labour relations employee or consultant, operations managers, or a financial employee. In some cases, the employer’s team may include the chief executive officer (CEO) or president; however, there may be disadvantages to this. A key drawback may occur when the CEO, in such a situation, is put on the spot by a member of the union negotiating team regarding an important demand such as wage increases or layoff protocols. Not having the top decision-maker present at the time of such demands allows the management bargaining team to say that such union concerns will be reviewed in due course with the organizational executives and responded to in subsequent negotiations. Bargaining teams may also include, or add, as needed, experts in specialized areas such as pensions.

UNION BARGAINING TEAM The union’s constitution and bylaws may affect the composition of the union bargaining team. These documents may provide, that certain officers, such as the local president, are designated as part of the bargaining team, and outline the process to select other team members. The national or international union may provide a representative to be part of the team and act as a resource person. This representative may be important, because they may have more experience than local union officers in some cases. The union team may also include experts in particular areas such as scheduling and health and safety.

Both teams require individuals who will maintain solidarity and confidentiality. Team members must not reveal the team’s priorities or willingness to make concessions. The spokesperson or chief negotiator must have persistence and outstanding listening skills. They may be required to face rejection and sarcasm from the other side and must be able to explain proposals and pick up on cues from the other bargaining team.

Preparations for Negotiation In the previously discussed sub-process known as intra-organizational bargaining, the union and the employer team must do extensive work before the first meeting of the parties. This preliminary work will lead up to each side preparing its own demands and anticipating what are the other party’s likely positions on these issues.

UNION DEMANDS Where the parties are negotiating a renewal of the collective agreement, the experience with the expiring agreement will be important. For example, if the expiring agreement did not require overtime to be equally distributed among employees and it appeared that the employer favoured granting overtime hours to only certain employees, the union would seek contract provisions governing the distribution of overtime. The union might refer to employee complaints that have arisen over the life of the previous agreement. If the union filed .

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grievances that were lost at arbitration because of the wording of the agreement, the union would seek an amendment to the contract. Some unions obtain specific membership input prior to negotiations through surveys and membership meetings. This input may be required by union bylaws.

The national or international union may have recommendations for demands based on parent union policy directives. For example, a parent union may require all union locals negotiating teams to not agree to contracting out provisions in new collective agreements. The union will also obtain information regarding economic forecasts and projected increases in the cost of living. The Canadian Labour Congress has recently set out certain principles.

Principles for Collective Bargaining – Canadian Labour Congress The CLC strongly encourages unions to include provisions designed to protect and support employees who are experiencing domestic violence in line with principles.

The employer will consider its experience with any expiring collective agreement. If the jobposting procedure provided for in the agreement has caused delays in filling vacancies, the employer would seek a shorter notice for job postings for consideration by union members. The employer would also refer to any grievances and arbitration decisions and attempt to change terms in the collective agreement that have caused problems. It might also get feedback from managers through meetings and surveys on problem areas due to unclear language or unworkable procedures in the contract. Future strategic business plans should be considered. If the employer is planning on making use of more part-time employees and the agreement restricts the use of part-time employees, it will seek an amendment to the agreement. The employer will also obtain economic information, including the projected rate of inflation and forecasts of sales and revenues, and refer to contract settlements in the industry and regional collective agreements.

Meetings of the Bargaining Teams The meetings between the employer and the union bargaining teams will often occur at a neutral location such as a hotel meeting room. Thus, no one bargaining team has home field advantage during bargaining. The parties typically carry out face-to-face bargaining in a central meeting room, while also retaining additional meeting spaces for separate union and management meetings or caucuses.

STAGES OF NEGOTIATION Researchers have considered the negotiation process and broken it down into three or four stages using various names for the stages. It might appear that in some negotiations the parties have a good idea of where they are going to end up, and an observer might ask why all the haggling is necessary. The concept of stages in negotiations may help us understand why it is not possible or advisable to short-circuit the process.

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Duty to Bargain in Good Faith Labour relations legislation in all jurisdictions imposes a duty to bargain in good faith on both the employer and the union. Good faith is interpreted as having both the union and management negotiators be present and listening to proposals; articulating positions in favour of their proposals and refuting the terms and conditions voiced by the other negotiating team; and making a serious attempt to find common ground on a settlement of the terms and conditions raised in collective bargaining.i The duty to bargain in good faith does not guarantee that a collective agreement will be reached. The legislation does not require any particular concessions be made to reach an agreement. If the reason for the failure to reach an agreement is a conflict over wages or seniority rules, there is no breach of the duty. Generally, if a party has a strong bargaining position that allows it to virtually dictate the terms of the agreement, there is also no breach of the duty. This is subject to the qualification that in some jurisdictions, when the parties are negotiating their first agreement, either of them may apply for the agreement to be determined by interest arbitration if the failure to agree was caused by unreasonable demands.

Stages of Negotiation Stage One: Establishing the Negotiation Range. In this stage, each side explains its concerns and positions on the issues. The union will typically proceed first with the presentation of written demands and an explanation of the demands. Each chief spokesperson will attempt to forcefully present his or her side’s position—stressing why the issue is important and perhaps hinting at the bargaining team’s willingness to push very hard for its demand. This phase may take several meetings. Each side proceeds with a reveal and conceal strategy, revealing their initial demand statement but concealing how far they are prepared to move away from that position in order to achieve a mutually agreed-upon settlement on the particular issue.

Stage Two: Search Phase. After stage one, both parties enter the longest phase represented by stage two and continue through the reveal and conceal process. Stage two will involve bluffing and other tactics, as discussed below. It is typical for each party to advance rather straightforward and low priority issues at the beginning of stage two. Early agreement on lowerpriority issues allows a sense of momentum to build in negotiations. Non-monetary issues— items that do not involve a direct financial cost, such as the number of days to file a grievance— are usually addressed before monetary issues. Monetary issues—relating to wages, benefits, or vacation allowance—are matters that involve a financial cost. There is a very practical reason for the union to prefer to deal with the critical monetary issues last. If no agreement is reached, the ultimate union weapon is a strike. But this is only an effective threat if employees are willing, and employees would be more likely to support a strike over the core monetary issues.

Stage Three: Crisis Phase. In stage three, a strike or lockout is a clear possibility. The parties are forced to make decisions and final concessions if they are going to avoid this crisis and reach an agreement. This phase is shorter and might be marked by a series of last-minute proposals, counter-proposals, and agreements. In some cases, the crisis phase may involve off-the-record meetings between the chief negotiators from both teams. In the crisis phase, the employer may increase a monetary offer on hourly wage rates, or the union could withdraw a particularly key

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demand such as additional vacation time. This phase may also involve the participation of a neutral third-party mediator to assist the parties to reach an agreement.

PURPOSE OF THE DUTY TO BARGAIN IN GOOD FAITH The purpose of the duty to bargain in good faith is to ensure that the employer recognizes the union as the sole bargaining agent for its members and to facilitate an agreement being reached without a strike or lockout. It is recognized that some employers will not stop their opposition to a union after certification.

The certification of the union would be meaningless if the employer were allowed to refuse to bargain.

REQUIREMENTS OF THE DUTY Generally, the duty relates to the approach to contract negotiations or the form in reaching an agreement, not the contents of particular proposals.

However, a few exceptional contract proposals are a breach of the duty. Although the parties are allowed to negotiate the coverage of the collective agreement so that employees are either added to or removed from the bargaining unit, it is a breach of the duty to insist upon changes in the bargaining unit. The employer or the union cannot take this issue to an impasse and attempt to cause a strike or lockout. Similarly, the bargaining structure and coverage of the collective agreement cannot be pressed to impasse. A union’s insistence upon a single set of negotiations and one collective agreement for several bargaining units is also a breach of the duty. Insisting upon any illegal condition in the agreement, such as a discriminatory wage practice, would also be an example of bad faith bargaining.

A distinction has been drawn between hard bargaining and surface bargaining. Hard bargaining refers to persistent and legitimate attempts to obtain an agreement on favourable terms. An employer who is willing to sign an agreement but refuses to agree to any wage increase so that more profits can be provided to owners is engaging in hard bargaining. Surface bargaining refers to going through the motions of negotiation with no intent to reach an agreement. An employer who knows that the union cannot agree to a wage increase of less than 3 percent, and deliberately offers a wage increase of 1 percent to avoid an agreement, is engaging in surface bargaining.

It may be difficult to tell the difference between an employer who wants a contract on favourable terms and an employer who does not want a contract at all. Refusing to meet for bargaining purposes will usually be a breach of the duty. A distinction must be drawn between a refusal to meet in the early stages of negotiations and a refusal that occurs later in negotiations after the parties have exhausted an issue. If the parties have met and discussed proposals, it is possible for a party to take the position that it will not meet again unless the other side is willing to change its position. A sudden, unexplained change in position may be a breach of the duty. A labour relations board will consider the evidence and determine whether there was a valid reason for a change in position, or if it appears the change was designed to avoid reaching an agreement.

In one case, the parties were divided on the issue of the deduction of union dues from employees’ pay. There was an intervening change in legislation that required the employer to deduct and remit union dues. This meant that the dispute over union dues was no longer an issue.

The employer then withdrew its previous monetary offer. The board found that this change in position was designed to avoid a collective agreement and was a breach of the duty.

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A party who takes the position that an item will not be discussed or included in the collective agreement will have to proceed carefully. The duty to bargain in good faith is an overarching obligation to negotiate an entire collective agreement. It is not a duty that attaches to each item raised in negotiations. A party who refuses to discuss or include an issue should make it clear that it is willing to sign a collective agreement that does not contain the particular issue. It would appear that multiple refusals to discuss or include terms taken together would be a breach of the duty. Complaints about a breach of the duty will be resolved on a case-by-case basis by a labour relations board. In one situation where an employer refused to discuss changes in pension benefits for retired employees, it was found that there was a breach of the duty. However, in another case when a public school employer association refused to discuss or include an issue raised by the union, it was found that there was no breach of the duty because it was established that the employer was willing to enter into an agreement. A refusal to explain one’s position on a bargaining issue is also a breach of the duty. In one case, an employer made a monetary offer and refused to explain or discuss the offer because of anti-inflation guidelines that were in force at the time. It claimed that the guidelines prevented it from providing a greater wage increase. The employer’s refusal to discuss and explain the interpretation of the wage guidelines was found to be a breach of the duty to bargain in good faith.

In order to meet the duty, the employer has an obligation to disclose information. Employers who have refused to provide wage and classification information have been found to be in breach. Employers must provide the union with the names and addresses of bargaining unit members. The employer is also obligated to disclose information that the union has not solicited if that information is relevant to the negotiations. For example, if prior to the start of negotiations, the organization has decided to close one of its plant locations, which would impact union members, and did not reveal this information in the course of negotiations, it would be considered a breach of the duty even though the union had not asked about the possibility of a move. The employer does not have to reveal information when the matter is still under consideration. To avoid problems relating to the sharing of information, the union should make inquiries. It might ask the employer whether there are any plans such as relocation or contracting out that will affect the bargaining unit.

It is permissible during negotiations for the employer to send letters to employees, or put notices in newspapers to explain its position, provided the issues have been fully discussed beforehand with the union. These communications must not be misleading or threaten employees. It may be difficult to distinguish between permissible communications in which the employer expresses a view or informs, as opposed to threats or intimidation. Employers have been given more leeway when the bargaining relationship between the parties has been of a longstanding and positive nature.

It is a breach of the duty to bargain in good faith to send representatives to negotiations who do not have adequate information or authority. For example, if the employer is claiming it does not have the ability to pay, the employer bargaining team should have, or be able to obtain, financial information to support this claim. It would be a breach of the duty for an employer to send representatives to negotiations who make commitments, and then attempt to back away from them, claiming they have received new instructions from senior management.

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BREACH OF THE DUTY TO BARGAIN IN GOOD FAITH: PROCEDURE AND REMEDIES Failure to bargain in good faith is an unfair labour practice, and a union or employer who thinks there has been a breach of the duty may file a complaint with the labour relations board. A board officer will attempt to settle the matter; however, if there is no settlement, the board will conduct a hearing. If it is found that there has been a breach of the duty, the board may issue a cease-and-desist order with a direction to the parties to resume bargaining. In a few exceptional cases, financial damages have been awarded to the party filing the complaint. Boards have ordered damages equal to the amount of compensation employees would have earned if an agreement had been earlier reached without a breach, and unions have been compensated for the additional expenses they incurred because of an employer’s breach.

First contract arbitration, which is reviewed in the next section, might also be viewed as a remedy for a failure to bargain in good faith following certification. could not reach a first collective agreement. In response to this, federal and all provincial jurisdictions have provisions in their labour relations legislation to utilize conciliation, mediation or arbitration processes to settle unresolved disputes between the parties. First contract arbitration means that a neutral arbitrator or the labour relations board will hear representations from the union and the employer and then determine the contents of the first agreement. There are minor differences between jurisdictions.

V. First Contract Arbitration First contract arbitration provides for the imposition of an agreement where efforts to reach a first contract have failed.

AVAILABILITY OF FIRST CONTRACT CONCILIATION, MEDIATION OR ARBITRATION If the parties are unable to reach an agreement, either the union or the employer can apply for first contract conciliation, mediation or arbitration. The legislation specifies the criteria used to determine whether the remedy will be granted. In most jurisdictions, the legislation provides that failure to bargain in good faith is a factor to be considered; however, a finding of bad faith bargaining is not a prerequisite to the remedy. Such intervention has been ordered where employers have taken unreasonable positions without justification. It has been granted where employers have refused to agree to any seniority provisions and have offered lower compensation to unionized employees than to non-union employees doing the same work.

CONTENTS OF THE AGREEMENT A labour relations board or a neutral third party determines the content of the collective agreement after hearing representations from union and management bargaining leaders. The compensation and working conditions of similar employees are factors influencing the terms imposed. Such first contract settlement options cannot be used by either party to obtain exceptional provisions that it could not obtain through negotiations. The union will not be able to obtain benefits not provided in the industry sector. The employer will not be able to obtain a contract that entirely avoids seniority provisions. The statutes require the term of the agreement to be between one and two years depending upon the jurisdiction.

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SIGNIFICANCE OF FIRST CONTRACT CONCILIATION, MEDIATION OR ARBITRATION First contract third-party intervention is significant for a number of reasons.

This remedy prevents employers from avoiding a union by adopting unreasonable positions in bargaining. The remedy also illustrates the importance of the divided jurisdiction in Canadian labour relations, which has allowed for experimentation and change. First contract arbitration was first adopted in the 1970s in British Columbia, and it has been added by other jurisdictions since that time.

VI. Strategies and Tactics in Distributive Bargaining In distributive bargaining, each side may have three key reference points in mind for each issue as it enters negotiations: a resistance point, a target point and an initial position.

The resistance point is the party’s bottom line—the point it will refuse to go below (or above, as the case may be). If a union’s resistance point on wages is a 2 percent increase, the union would go on strike before agreeing to any increase less than 2 percent. If the employer’s resistance point is a 2.75 percent wage increase, this means it would endure a strike or impose a lockout rather than go any higher.

The target point is the result a party hopes to obtain. Although a union thinks it will not accept anything less than a 2 percent wage increase going into negotiations, the union hopes to achieve a greater increase, for example, a 3 percent increase. Similarly, the employer will have a target point it hopes to achieve.

Each party will have an initial position on each issue at the start of negotiations. If the union has a target position to achieve a 3 percent wage increase, it will have to initially demand more than that amount. Similarly, the employer will have to begin negotiations by providing less in its initial offer than it is willing to pay, so that it has room to increase its offer.

In summary, a union might be willing to go as low as a 2 percent wage increase (the resistance point), hopes for a 3 percent increase (the target point) and has an initial position or demand of 4 percent. The employer’s points would be in the reverse order.

Where there is an overlap of the resistance points between negotiating teams there is a contract zone or settlement zone within which the two parties should be able to reach an agreement. Where the parties end up in the contract zone (between 2 percent and 2.75 percent in the illustration provided), depends in part on the negotiation skills of the parties. Where there is no overlap of the parties’ resistance points, there is no contract zone. Even if the union lowers its demands to its bottom line or resistance point, it is still demanding more than the employer is willing to pay. There cannot be an agreement unless one or both of the parties changes their resistance point.

STRATEGY In distributive bargaining, each side will attempt to find out what the other side’s resistance point is so that it can push for a settlement as close as possible to it. In the previous example, the employer would like to find out that the union is prepared to settle for as low as a 2 percent wage increase. Conversely, each side will hide its resistance point from the other. The .

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union in the illustration is not going to announce that it would go as low as 2 percent, because that is all it would likely obtain. Each side will attempt to convince the other that its resistance point is higher or lower than it actually is. This approach, used by both parties, may also be referred to as a “reveal and conceal” strategy.

Each side would like to influence the other side’s resistance point. In the case of wages, the union would like to see the employer raise its resistance point and the employer would like to see the union lower its resistance point. A party’s resistance point is based on the benefits and costs associated with it. For example, a union may initially think that a wage increase of 2 percent can be obtained without a strike. If it finds otherwise, the costs associated with the resistance point have increased and the union may revise the point downward to where an agreement can be achieved without the cost of a strike. Conversely, an employer’s resistance point may initially be based on the presumption that an agreement can be achieved without a strike or lockout. If it is determined that the resistance point will involve a costly strike or lockout, the employer may revise it upward.

Although explicitly threatening a strike or lockout early in negotiations is not acceptable, each side in negotiations may have to convince the other that it is willing to strike or lock out to achieve its objectives. There may be a strange paradox here for some employees. Although most employees may not want to go on strike, they may have to vote for a strike so that the union appears to have the support of employees and an agreement can be reached.

OPENING POSITIONS Both parties will begin negotiations with certain positions, demands or offers on various items. However, all positions or demands made are not of equal importance to the negotiating team presenting the particular issue at the bargaining table. Each party goes into negotiations knowing that some demands it makes may have to be significantly reduced or dropped entirely in order to obtain concessions from the other side. For example, a union might make a demand for a new benefit, such as a prepaid legal plan, knowing that it is willing to drop the demand later in exchange for a concession from the employer on one of its demands.

The opening positions in negotiations are significant. There is research that shows that commercial negotiators who make more extreme opening offers achieve better results.ii This may be because the offer causes the other side to re-think its position and there is more room for concessions. In commercial negotiations, the negotiator who makes an extreme opening offer is taking a risk that the other side will reject the offer and not make any further attempts to negotiate. In labour negotiations, it is not possible for a party receiving an extreme offer to break off negotiations because the duty to bargain in good faith requires each side to at least explain and discuss proposals. However, a union or employer concerned with public support, for example, a teachers’ union or a school board, may want to avoid extreme offers that will cause the public to support the other side.

In the past, some employers have thought that they could avoid the haggling involved in negotiations by making their best offer first, in other words making a take it or leave it first offer.

This approach, known as Boulwarism, is not advisable today. An employer who adopted this strategy would have several problems. The belief that the employer will eventually improve on its first offer is entrenched in Western union–management relations. An employer must allow .

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room to improve an offer later in negotiations. An employer who adopted Boulwarism would likely have to deal with labour relations board complaints that it had failed to bargain in good faith. This approach could also harm the long-term relationship between union and management representatives.

CONCESSIONS When a first offer and demands are exchanged, a bargaining range is beginning to emerge. Subsequently there will be numerous concessions and counter-offers. A party who receives an offer may take the position that it will not respond with a counter-proposal until the other side makes an improved or more reasonable offer.

The size and pattern of concessions that are made can send a significant message. If concessions are made in successively smaller increments, whether they relate to one issue or cover a package of issues, a message is sent to the other party. If an employer makes an initial offer of a 1 percent wage increase, and subsequently follows this with three successive increases, each of which is 1 percent more, the employer’s offer has been increased to 4 percent. However, the union may think that if it delays, it can obtain a further increase. However, if the employer made three successive increases, to 3 percent, then to 3.75 percent, and then to 4 percent, the offer still ends up as 4 percent, but a subliminal message has been conveyed that there is no further room for concessions. Concessions may be made by shifting positions from one meeting to the next instead of formally backing down in a negotiation session.

FINAL OFFER VOTE Employers in some jurisdictions have another opportunity to test the support of employees for the union. In Alberta, British Columbia, New Brunswick and Ontario, labour relations legislation provides for the employer to have a vote by bargaining unit members on the employer’s final offer made at the bargaining table but rejected by the union negotiating team. The final offer vote can be held only once in a round of negotiations. If a majority of the employees who vote to accept the employer’s offer, that offer becomes the basis for a collective agreement, and any strike in effect must cease. An employer who thinks employees will accept a proposal the union has refused might use this provision, but it should carefully think about the consequences of losing a final offer vote before taking this step. If the employer loses the vote, it will have to re-start negotiations and will likely have to improve its offer to obtain agreement.

Union bargaining team members are also likely to be hostile when negotiations resume, as they may perceive that management has attempted by a final offer vote to do an end run around union negotiators. A slightly different policy option is illustrated in Saskatchewan where the employer may request the appointment of a special mediator who may recommend a vote.

Final offer vote is a vote by employees on an offer made by the employer.

HARDBALL TACTICS Some negotiators may attempt to use an array of tactics to convince the other side to agree to their terms. Some possible tactics are mentioned here, although they are not recommended. Readers wishing further information should refer to a reference on negotiation. Some negotiators may engage in the following tactics.

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A good cop/bad cop routine. As the name suggests, this tactic involves one negotiator playing the role of the bad cop, making threats and offering poor terms, and the other negotiator playing the role of the good cop, attempting to reach an agreement. In labour .

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negotiations, this might involve negotiators taking on the role of the good cops and blaming the tough position being taken on people who are higher in the organization who are not at the bargaining table.

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The highball or lowball approach. This involves making an opening offer that is deliberately high or low. It is used to try to convince the other side that they need to reevaluate their position. An example in labour negotiations would be an employer making an initial monetary offer that provided for wage concessions or a wage freeze. The tactic involves pretending that an issue of little importance is significant so that it can subsequently be given up to obtain a concession from the other side.

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A nibble approach. Here the party asks for a small concession on an item that has not previously been discussed in order to finalize the agreement. In labour negotiations, an example would be asking for additional vacation benefits at the last minute when vacations had not previously been discussed. This tactic may violate the duty to bargain in good faith.

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Playing chicken. This refers to one side threatening the other side to force them to agree on terms that are favourable to the party making the threat. It is important to note that this practice is illegal. An example would be management advising the union that if its offer is not accepted the employer will shut down plant operations and layoff members.

Finally, some negotiators may engage in intimidation and aggressive behaviour such as staged temper tantrums or attacks on the competence or integrity of the other team. Such behaviours risk harming the long-term relationships between union and management representatives, many of whom must work together following contract negotiations.

VII.

Bargaining Power

The bargaining power of the union and the employer are important factors that influence the outcome of distributive bargaining. A party with more bargaining power should be able to obtain a more favourable agreement. The bargaining power of the union and the employer will be affected by external economic, social and legal factors and internal factors including the commitment of employees to the demands of the union.

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Inventory levels—An employer able to build up sufficient inventory of materials or products for sale at a later date is in a stronger bargaining position because it will be able to withstand a strike. A mining company able to stockpile nickel would be in a stronger bargaining position than one that has to meet just-in-time delivery dates. Companies that supply services that cannot be stockpiled or prepared in advance would be in a weaker position.

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Interdependence of bargaining unit—If the output of the bargaining unit is required by other business units of the employer, a strike will have a greater impact and the employer is in a weaker bargaining position. Conversely, if the bargaining unit is an independent operation and other units can replace its output, the employer is in a stronger bargaining position. In the meat-packing industry, employers who can replace the output of one operating unit with that of another have more bargaining power. .

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• Competitive position of employer—The competitive position of the employer refers to the possible loss of customers during a strike and their subsequent recovery. If customers lost during a strike will likely return after the strike ends, the employer is in a stronger bargaining position. The economic environment may also be a factor. If employees are able to find alternative jobs elsewhere if customers do not return to the employer after a strike and jobs are lost, the employer is in a weaker position.

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Time of negotiations—The time of bargaining in a seasonal business can affect the employer’s bargaining power. For example, a construction employer would be in a weaker bargaining position in the peak season.

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Ability to continue operations—The ability of the employer to use replacement workers during a strike is a critical factor affecting the employer’s bargaining power. This will be determined by the size of the employer’s operations, the technology used and legislation. In some cases, the bargaining unit is so large that it is not practical for the employer to use replacement workers. It would not be practical to replace 2,000 workers in an auto plant.

Where the technology allows a few supervisors to continue operations, such as in a water treatment plant, the employer is in a stronger bargaining position. The use of replacement workers during a legal strike is prohibited only in British Columbia and Quebec. No other jurisdictions in Canada prohibit the use of replacement workers during the course of a legal strike. The Canada Labour Code, while not prohibiting the use of replacement workers, provides that employers cannot use replacement workers to undermine a union’s representational capacity rather than the pursuit of legitimate bargaining objectives. In most jurisdictions when the strike ends, the employer is required to reinstate employees who have been on strike.

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Bargaining structure—The bargaining structure, referred to earlier in this chapter, might also affect employers’ bargaining power. An employer who operates a chain of Tim Hortons’s outlets is in a stronger bargaining position when it negotiates with each outlet separately.

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Public opinion—Public opinion might affect the bargaining power of the employer. If the public supports employees on strike and does not deal with the employer, the employer may be forced to reconsider its position. Public opinion is especially important in parts of the public sector where voters may not re-elect political representatives, such as school board trustees.

VIII. Conciliation, Mediation and Interest Arbitration If the parties are not able to reach a collective agreement, they may seek the assistance of a government-appointed conciliator, mediator or an interest arbitration process. In most jurisdictions, conciliation or mediation is required before a strike or lockout is legal.

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IX.

Chapter 8 Negotiation of the Collective Agreement

Memorandum of Settlement and Ratification

If the union and the employer reach an agreement, it will typically be documented in a Memorandum of Settlement. This memorandum sets out the terms agreed upon and provides for the tentative agreement to be ratified by members of the bargaining unit and the employer. The Memorandum refers to a situation in which the parties have negotiated a contract renewal. If the agreement was a first contract, it would set out all of the contract terms instead of referring only to changes in the previous agreement.

A ratification vote is a supervised vote required by legislation in British Columbia, Manitoba, Ontario and Quebec in which employees in the bargaining unit approve or reject a negotiated agreement. In other jurisdictions, ratification votes are normally conducted and may be required by the union constitution. In the provinces requiring a ratification vote, the legislation provides that it must be conducted by secret ballot and that all employees in the bargaining unit, including those who are not union members, are entitled to vote. If the employees vote to reject the agreement, the union and management bargaining teams will have to resume negotiations.

X.

Principles for Interest-Based Bargaining from Getting to Yes

Interest-based bargaining does not mean being soft; it is based on the five principles discussed below.

1. Separate the People from the Problem This point emphasizes that negotiators are people who have emotions, values and needs. In most negotiations there is an issue of substance in dispute and a relationship to be concerned with. The people or relationship problem is important in most negotiations, and it is especially important in labour negotiations where the parties will have to deal with each other after negotiations have been completed. The other side’s ego and feelings must be taken into consideration. As the statement of the principle suggests, the problem should be the focus of attention, not the attitudes or behaviours of the people being dealt with. To separate the people from the problem, negotiators should avoid placing blame and thinking the worst of the other side. Management should not attack the union because of attendance, productivity or quality issues. These items should be viewed as problems the parties have to address together. Getting to Yes outlines tactics to pursue the problem, such as having individuals sit on the same side of a table focusing on an issue on a board in front of them.

2. Focus on Interests, Not Positions The difference between interests and positions was previously referred to when the distinction between distributive and integrative bargaining was made.

3. Interests Can Include Needs, Desires, Concerns and Fears Interests are the reasons behind demands or positions. A demand or a position in negotiations will set out a specific solution to an issue instead of leaving the door open to different solutions. It is true that management and the union will have some interests that are different. In fact, agreement is only possible because the parties have different interests. One party may want the orange; the .

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other may want the peel. Asking critical questions such as why?” or why not? can identify interests. Interests will also be identified if one of the parties takes the lead and talks about its own interests.

4. Invent Options for Mutual Gain This principle is founded on the basic concept that there is often more than one solution to a problem. Steps must be taken by the negotiating parties to generate alternative solutions and to avoid starting the evaluation or judgment of alternatives too early. Fisher, Ury and Patton mention various tactics to develop these options, such as designating a minimum specified time for the generation of solutions and use of brainstorming techniques.

5. Insist on Using Objective Criteria Here the parties should base their choice or agreement on objective criteria. In Getting to Yes, the authors refer to a dispute between a builder and a customer over the depth of a foundation of a building. If the builder said it was using a twofoot foundation and the customer wanted a six-foot foundation, the parties should not split the difference. They should refer to the objective criteria that establish what is required by the building code for the building.

Interest-based bargaining is an approach to negotiations in which the parties use problem solving and attempt to find a settlement that produces gains for both. It may be referred to as mutual gains bargaining or principled negotiation and is based upon the principles outlined by Roger Fisher, William Ury and Bruce Patton in Getting to Yes: Negotiating Agreements Without Giving In. Interest-based bargaining is an approach to negotiations in which the parties use problem solving and attempt to find a settlement that produces gains for both.

XI.

Review Questions

1. What are the distinctive features of labour negotiations?

Labour negotiations are different from other business negotiations in a number of ways. In some commercial transactions the only matters to be negotiated might be the price and delivery date.

Labour negotiations often involve a larger number of issues including wages, union security, contracting out, technological change, overtime, etc. Labour relations legislation regulates the process and some of the content in labour negotiations. The duty to bargain in good faith and first contract arbitration (in some jurisdictions) affect the process the parties are involved in. There is no equivalent legislation regulating other business negotiations. Labour negotiators represent constituents who must approve the agreement. The significance of this is illustrated when the bargaining unit rejects a tentative agreement. In some commercial negotiations the negotiators will be dealing with each other only once and there will be no further contact after a contract is formed. In labour negotiations the parties are involved in a relationship that will require them to work with each other after an agreement is reached.

2. What is meant by bargaining structure and how can it affect negotiation?

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A certification by a labour relations board grants a union the right to bargain for employees situated at one or more locations of an employer. Where the employer has more than one location, or more than one bargaining unit, it is possible for the union(s) and employer to agree that contract negotiations will cover more than one bargaining unit or location. Bargaining structure refers to the issue of who is bargaining with whom. In the case where the employer only has one location and one bargaining unit, the bargaining structure is not an issue - the bargaining structure will involve a single employer, a single union, and one location. Where the employer has more than one bargaining unit, or more than one location, or more than one union, bargaining structure could be more complex. It is even possible, although unusual in Canada that different employers could agree to bargain together with a union or unions. Bargaining structure should be viewed as being more or less centralized. The most decentralized bargaining would be contract negotiations that involve one union and one employer for one location, with any other locations bargaining separately. Centralized bargaining refers to contract negotiations that cover more than one location, bargaining unit, union, or employer. The bargaining structure could affect negotiations in a number of ways: 1) More centralized (larger) negotiations may involve more experienced negotiators and this might facilitate agreement.

2) Centralized bargaining could reduce the costs of negotiation because the number of negotiations is reduced.

3) Centralized bargaining may make negotiations more difficult because different workgroups at different locations may have different priorities.

4) Centralized bargaining may avoid the tactic of whipsawing.

5) The bargaining structure could affect the bargaining power of the union or the employer.

Decentralized bargaining may leave a single union at one location in a vulnerable position when dealing with a large employer. Conversely, centralized bargaining means that a union is negotiating with the employer for a number of locations, and this may provide the union with a stronger bargaining position.

6) Centralized bargaining may lead to problems for some employee groups or locations that perceive that their interests are not being met.

3. Why is most collective bargaining negotiation in Canada decentralized?

Labour relations is primarily a provincial responsibility so that there is a division between 11 different jurisdictions. If a provincially regulated employer has employees in all ten provinces there will be at least ten different units certified. Labour relations boards in some jurisdictions have certified smaller fragmented bargaining units. In some jurisdictions white collar and blue collar employees have been placed in separated bargaining units. More centralized bargaining will often require the agreement of the parties and economic factors may have lead some employers to pursue decentralized bargaining. Employers may seek a more decentralized structure to obtain a better deal with a smaller weaker bargaining unit.

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4. What is the meaning and significance of each of the following: intra-organizational bargaining, distributive bargaining, integrative bargaining and attitudinal structuring?

This question refers to the sub-processes in negotiation identified by Walton and McKersie.

Distributive bargaining refers to traditional positional negotiations that people are most familiar with. A gain by one party involves a loss by the other. For example, a wage increase provides employees with more income; however, it increases the employer's cost. Integrative bargaining refers to a process or form of negotiations in which the parties engage in problem solving and both may achieve gains. A gain by one does not necessarily involve a loss by the other. The significance of integrative bargaining is that it protects the parties' relationship and allows them to develop better outcomes for both. An example of integrative bargaining is the resolution of a safety issue. Attitudinal structuring relates to the relationship between the union and the employer. The parties could be concerned with their relationship and undertake efforts to improve it. The parties' relationship could affect their ability to reach agreement without a work stoppage and the grievance rate. Intraorganizational bargaining refers to activities within the employer or union side. It includes the relationship between each side's negotiators and constituents. Union negotiators may have a special problem with keeping bargaining unit members informed and negotiating a contract that will be ratified.

5. What are the factors affecting the union-management relationship: The union-management relationship could be affected by external economic, technological, and legal factors. Economic pressures such as globalization or increased competition may force the employer to seek concessions that will lead to conflict with union leaders. Technological change may lead to conflict over possible job loss. The legal environment, such as the provisions regarding the deduction of union dues, could eliminate or exacerbate conflict. The personalities of union and employer leaders may also affect the relationship. Some individuals may be more competitive or less tolerant of others. Some leaders may be more patient and understanding of the problems faced by their counterparts. The beliefs and values of leaders could also affect the parties' relationship. If managers believe in a free market system and do not accept the legitimacy of unions the relationship could be strained. If union leaders do not trust the market system and view managers as trying to exploit workers the likelihood of conflict between the parties is increased. The parties' experience with collective bargaining could also affect the relationship. If an employer or union leader has had a bad experience with contract negotiation, for example they think they were mislead or taken advantage of, the relationship will be affected.

Similarly if one of the parties has had a bad experience with the grievance process this may affect their outlook and in turn the parties’ relationship. For example, a manager might have been forced to reinstate an employee who was discharged and this could leave the individual with a negative attitude that affects the relationship.

6. Outline the possible composition of a bargaining team representing the employer and the union.

There is no legislation governing the composition of a bargaining team. Typically the employer bargaining team would include representatives from the financial area and operations. The union bargaining team may include union officers who are required to be part of the team pursuant to .

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union bylaws, elected representatives from the local, and a representative from the national or international union.

7. Identify steps the union and the employer will likely follow in the course of preparing for negotiations.

If it is perceived that the employer is abusing overtime the union will seek amendments to the agreement to prevent this.If the employer has business plans that require the use of more parttime employees, and the current agreement restricts part-time employment, the employer would seek a change in the contract.

8. What are the possible stages of negotiation and why are they important?

In the text three stages of negotiation are referred to: • establishing the negotiation range • a search phase • a crisis phase Some observers have broken the process down into four stages.

It appears that the results will be less than optimum if the three phases are short-circuited. The parties must fully explore all of the issues, and they must answer to their respective constituents.

In some negotiations if a crisis phase was not reached the likelihood of the agreement being ratified is diminished.

9. Briefly describe two employer and two union actions that would be a breach of the duty to bargain in good faith.

A list of actions deemed to be indicators of bad faith is provided in Figure 8-6. Employers are guilty of failing to bargain in good faith if they refuse to meet with the union to discuss a particular issue. For example, if the union put forward a demand for a pension plan it would be a breach of the duty to refuse to talk unless the union dropped the demand. An employer would be in breach of the duty if it failed to provide information to the union that affected the bargaining unit. For example, if the employer made a decision to move or contract out some of its operations, it would be a breach of the duty to fail to disclose this. An employer would breach the duty if it introduced last-minute demands. If the employer did not refer to the term or duration of the agreement, and then indicated that it wanted the agreement to have an unusually long term, this would indicate bad faith. A union could be guilty of bargaining in bad faith if it threatened to go on strike before the legal strike date. In most jurisdictions a strike is not legally possible until conciliation or mediation has occurred and a cooling off period has expired. The union could also breach the duty if it put forward illegal demands. For example, a union proposal that discriminated against employees with disabilities would breach the duty.

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10. Explain the significance of the pattern of concession-making in negotiations.

It is noted in the text that the pattern of concessions may help convince the other side that there is nothing more to be gained. If concessions are made in smaller increments the other side may be convinced the party making the concessions cannot go any further.

11. Describe hardball tactics that a party could use in negotiations: Hardball tactics in negotiations are described in the text.

12. Identify the four principles for successful interest-based bargaining: The principles for interest-based bargaining based on Getting To Yes are described in the text.

XII.

Discussion Questions

1. What is the significance of the union-management relationship for negotiations?

The relationship between the parties is important because it could affect their ability to move from adversarial to integrative bargaining. In a relationship marked by low trust and conflict the parties will not be able to move to mutual gains or interest-based bargaining discussed later in the chapter. A relationship marked by conflict increases the likelihood of a strike or lockout.

2. Why should a negotiating party not lead with its best possible offer?

Although it might seem attractive to avoid haggling and start with a best offer this is not an advisable course of action. It has become the standard or norm that an employer will eventually agree to pay more, and the union will eventually agree to accept less than their initial position. It would be difficult for an employer to convince a union that its first offer was in fact all the employer was able to pay because the union will have bargaining experience where employers have agreed to pay more than the initial offer provided. Also, the contract that is negotiated will have to be ratified by the members of the bargaining unit. If the union bargaining team accepts the employer's first offer it is likely that the bargaining unit members will question if the union has obtained all that was possible. To be able to sell the agreement to the bargaining unit, the union may have to show how the employer was forced to improve its offer as negotiations proceeded.

3. Why is it important that labour relations legislation provide for a duty to bargain in good faith?

The duty to bargain in good faith reinforces the union's right to represent employees as their bargaining agent. Bargaining rights would be meaningless if the employer could simply refuse to bargain or go through the motions of bargaining. The duty to bargain in good faith may help avoid work stoppages. By forcing the parties to discuss and explain their proposals it is possible that strikes or lockouts may be avoided.

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4. What is the significance of first contract arbitration?

First contract arbitration involves the imposition of a first collective agreement in a situation where the parties are not able to negotiate a contract themselves. First contract arbitration is generally viewed as a remedy that is favourable to unions. It is significant because it will prevent an employer who has lost the certification battle to avoid the union through contract negotiation.

Although the employer has a duty to bargain in good faith it would still be possible for a careful employer to comply with the duty and avoid a first agreement.

The political environment has influenced the adoption of first contract arbitration. In British Columbia, the first jurisdiction to adopt the remedy, it was established by an NDP government. In Ontario it was adopted by a minority government that needed the support of the NDP. There had also been several notorious first contract labour disputes in the province, including Eaton’s that involved long strikes where the employer appeared to refuse to accept the union. In other jurisdictions the political environment may be more conservative, and governments have not seen the need for this remedy or may be unwilling to adopt a procedure that appears to benefit unions.

The adoption of first contract arbitration illustrates the importance of the political environment to labour relations processes.

5. Two months prior to the expiry of the current collective agreement, a union gave the employer notice to bargain. The parties could not agree on any meeting dates for negotiation, and the employer sent a note directly to employees that it was not able to negotiate because it had encountered a major financial problem. a) How can the union proceed? b) Explain the outcome you expect.

The union can file an unfair labour practice complaint with the Labour Relations Board. The complaint would allege that: 1) the employer has breached the duty to bargain in good faith, and 2) the employer’s direct communication to employees amounts to interference with the

union's bargaining rights.

The unfair labour practice complaint would likely be upheld and the board could: 1) issue a declaration that the employer has violated the duty to bargain in good faith and interfered with the union's bargaining rights, 2) order the parties to negotiate in good faith to reach a collective agreement, 3) order the employer to post a notice to employees advising that the employer has been ordered to bargain in good faith.

6. For the issue of wages, give an example of the union and employer resistance points, target points and initial offers, where there is a contract or settlement zone.

If the employer and the union have the following points there is a settlement zone.

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Employer: initial offer two percent increase; target point three percent; and resistance point four percent.

Union: initial demand a six percent increase; target point four percent increase; resistance point three percent increase.

In this situation there is a settlement zone because the employer is willing to go as high as four percent and the union is willing to go as low as a three percent increase.

7. Which of the following statements are interests and which are demands or positions: (a) We need to reduce our costs by five percent by contracting out the work of Department A. This statement is a demand. It points to a particular solution or course of action, contracting out, to deal with the issue instead of opening the door to alternative measures. (b) We are concerned about the effects of the new machinery on our employees.

This statement expresses an interest. The concern is put forward without limiting possible alternatives to deal with the situation. (c) We need a wage freeze to remain competitive.

This statement is a demand. (d) Our concern is for the job security of our members.

This statement expresses an interest. (e) We need flexibility to meet family responsibilities.

This statement expresses an interest. Contrast this statement to the next one in (f). Here a reference is made to a general concept of flexibility without limiting ways to increase flexibility.

It would still be possible to engage in problem solving to increase flexibility. (f) We need flextime to meet family responsibilities.

This statement is a demand. A particular solution, flextime, has been put forward as the way to deal with the issue. Although the statement may be less confrontational because it refers to a need, it is equivalent to saying "we demand flextime…" or "it is our position that there should be flextime…”

8. Why might an employer be opposed to the introduction of interest-based bargaining?

There are a number of reasons why an employer might not wish to adopt interest-based bargaining including the following: 1) lack of awareness. Some employers may not be familiar with the potential gains of interestbased bargaining.

2) opposition to change. Interest-based bargaining will involve a new approach and requires training. Some employers may simply not want to put forward the effort required.

3) bargaining strength. Some employers may perceive that they are in a strong position and think that they can achieve their objectives through traditional bargaining. .

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4) lack of trust. Interest-based bargaining requires trust and some employers may perceive that they cannot trust the union.

5) control. Some employers may perceive that interest-based bargaining will involve them giving up some measure of control to the union.

6) attitude. Some negotiators may perceive that interest-based bargaining is not macho, and accordingly it is not an approach that they want to adopt. They want to engage in the battle and win.

7) priorities. Proponents of interest-based bargaining contend that it protects the relationship between the union and the employer. Some employers may not perceive that an improved relationship is a desirable or necessary objective.

XIII. Web Research 1. The highlights provide insight into the number of agreements that have been settled for each quarter. Most agreements have been in the Health Care Sector. Recent agreements can be found under the Collective Agreements tab found on the web page.

2.

2The unions position on replacement workers will likely be that there is no evidence that anti-scab laws have any impact, positive or negative, on investment and competitiveness.

Furthermore, anti-scab laws work very well at preventing the injuries, disruption and lingering anger that result from strikes and lockouts where replacement workers are used.

The Fraser institute will assert that laws favouring one group (either workers, employers, or unions) over another led to lower output as well as reduced levels of employment, investment and productivity. This is particularly important for the current debate over replacement worker bans since this type of law inherently benefits one group (unions) at the expense of all others.

3. This website will provide information which identifies which legislations a labour relations board will have jurisdiction over. The number of acts in which the board has jurisdiction over will vary depending on the industry.

XIV. Vignette How Do You Prepare to Negotiate a Collective Agreement?

According to the Canadian Union of Public Employees (CUPE Alberta) when it becomes time to negotiate a collective agreement, whether negotiating an agreement for the first time or renewing an existing agreement, there are some important steps to prepare for these negotiations.

Each of these steps will support successful achievement of collective agreement terms for both the organization and employees.

First, communication is central to success collective agreement negotiations. This communication must focus the preparatory steps, plans for negotiations, and negotiation updates to all of the union members. This communication must be ongoing and utilize multiple communication channels—meetings, email, web board, in-person.

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Next, CUPE suggests the PINC principle-gathering problems, interests, needs, and concerns (PINC). At the preparation stage, the union leaders collect information from their members concerning their point of view concerning workplace issues. This information could be collected with an online survey or meetings.

The third step to prepare for collective bargaining negotiations is research. In particular, information is collected from other unions, union researchers, and trends in the unionized environment. Importantly local union complaints, grievances, health and safety concerns, sick leave trends, long-term disability claims, workers’ compensation claims, job duties, and new employer policies.

It is also important to not negotiate with the public and media. Negotiations must first occur at the bargaining table with the union and organizational representatives. The only exception to the guideline is speaking to the media for issues significant to the broader community and only if negotiations are particularly difficult. It is recommended that the local negotiation team lean on the broader union for guidance when speaking to the broader community.

The final preparation for negotiating a collective agreement is to recruit communicators.

These individuals would be tasked with communicating with the members concerning negotiating progress and outcomes. It is important to ensure all employees are included in the communications.

XV. Case Incident: Plaza Fiberglas The purpose of this case is to illustrate the duty to bargain in good faith, and the procedure and remedies available if there is a breach of the duty.

1. Is there any basis for the union to file a complaint with the Labour Relations Board.

Refer specifically to each of the items referred to: rules, seniority, wages, addresses of employees, and the recruitment and selection of employees to work at the new location.

The union could file a complaint with the Labour Relations Board alleging that the employer has failed to bargain in good faith. This case is based upon United Steelworkers of America v. Plaza Fiberglas Manufacturing Ltd. 90 CLLC 16,027. In the Board's decision it was found that the employer's proposals regarding rules, seniority, and wages involved hard bargaining, but were not a breach of the duty to bargain in good faith. However, the employer did breach the duty to bargain in good faith by: • sending uninformed representatives to negotiations • failing to disclose the intention to move work during negotiations • engaging in direct bargaining with employees • refusing to provide employee names and addresses to the union.

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2. What remedies could the Board order for any violations of labour relations legislation by the employer?

The Board ordered the following remedies for the employer's violations of the legislation in this case: 1) a cease, and desist order directing the employer to stop violating the act, 2) a direction to resume negotiations and bargain in good faith and make every reasonable effort to reach a collective agreement, 3) damages to employees to compensate them for the loss of income incurred when the work was moved by the employer, 4) compensation to the union for its additional negotiation costs, 5) an order directing the return of the work to its original location, 6) an order to provide employee addresses to the union, 7) an order to post a notice to employees in the workplace which confirmed that the employer had violated labour relations legislation and would bargain with the union and make an effort to reach a collective agreement.

This case illustrates how the duty to bargain in good faith relates primarily to conduct rather than the content of bargaining proposals. For example, the proposal regarding the specific penalty of discharge for breach of company rules was not a breach of the duty; however, the failure to send informed representatives to bargain was a breach. The wide range of remedies a Board might use is also illustrated. i

Laurence Olivo and Peter McKeracher, Labour Relations: The Unionized Workplace. (Toronto: Emond Montgomery Publications Ltd., 2005), p. 118. ii

Roy Lewicki, David Saunders, and John Minton, Essentials of Negotiation (Burr Ridge, IL: Richard D. Irwin, 1997), p. 45.

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Chapter 9 Strikes, Lockouts, and Contract Dispute Resolution

CHAPTER 9 STRIKES, LOCKOUTS AND CONTRACT DISPUTE RESOLUTION Preface In this chapter, students consider the strategies of strikes and lockouts deployed by unions and employers respectively in an attempt to break an impasse in collective bargaining between the parties. Then the discussion will turn to various forms of third-party interventions, including those by government, to reduce the likelihood of, or to end these actions and conclude the collective bargaining process.

Learning Objectives 10.1 10.2 10.3 10.4 10.5

Describe the purpose of strikes and lockouts.

Outline the prerequisites for a strike or lockout.

Identify factors affecting strikes and lockout activity.

Explain the role of government intervention in contract disputes.

Describe other methods to resolve contract disputes.

Outline/Table of Contents

I. II. III. IV. V. VI. VII. VIII. IX. I.

Strikes and Lockouts Differences in Information Between Union and Employer When Can the Parties Strike or Lockout?

Contract Dispute Resolution Review Questions Discussion Questions Web Research Vignette Case Incident Strikes and Lockouts

The legal definition of a strike is broader than might be expected. Most jurisdictions provide a definition similar to the following from the Canada Labour Code: strike includes a cessation of work or a refusal to work or to continue to work by employees, in combination, in concert or in accordance with a common understanding, and a slowdown of work or other concerted activity on the part of employees in relation to their work that is designed to restrict or limit output.

A strike is not limited to a situation where employees walk off the job; it also includes situations where employees continue to work but restrict output. In some cases, unions have used the slowdown tactic of following work procedures exactly, and not engaging in any activity the collective agreement does not require. This is referred to as a work-to-rule campaign, and in .

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some situations, it could be regarded as a strike action because it is restricting output. It has even been held that employees who refuse overtime in collaboration with each other are engaging in a strike.

Where employees work at different locations, unions have sometimes used the tactic of rotating strikes, in which employees strike at some locations, while at other locations they continue to work. For example, in the postal system the union could have employees strike in different cities on different days. The purpose of such a strategy is to force concessions without completely shutting down the employer, and without employees losing all of their income.

In two jurisdictions—Manitoba and Nova Scotia—the definition of a strike also includes a requirement that the purpose of the refusal to work or the slowdown is to compel the employer to agree to certain terms and conditions of employment. Accordingly, a refusal to work for some other purpose would not be a strike. This difference in definition could mean that the same union action is considered a strike in one province and not in another.

A strike is only legal at certain times and if the prerequisites for a strike, including a strike vote, have been met. A strike during the term of the collective agreement is illegal. It is an unfair labour practice to threaten an illegal strike. A wildcat strike is an illegal strike that has not been authorized by the union—for example, if a group of employees walked off the job to protest the discipline or dismissal of a co-worker despite the fact that a collective agreement covering these employees was in force.

A lockout is the employer’s refusal to allow employees to work in order to force the union to agree during collective bargaining to certain terms or conditions of employment. In most jurisdictions, labour relations legislation formally defines a lockout similarly to the following from the Canada Labour Code: lockout includes the closing of a place of employment, a suspension of work by an employer or a refusal by an employer to continue to employ a number of their employees, done to compel their employees or to aid another employer to compel that other employer’s employees to agree to terms or conditions of employment.

It is important to note that there are two components to the definition. First, there must be a suspension of work or a refusal to employ, and second, there is a requirement that the purpose of the refusal to employ is to compel employees to agree to terms or conditions of employment. The second requirement refers to the motivation of the employer. If the employer suspends operations for economic reasons and there is no intent to force employees to agree to terms and conditions of employment, there has not been a lockout.

Functions of Strikes Strikes serve several legitimate purposes in the labour relations system. Although it may sound strange, strikes can be a way to resolve conflict. There is evidence that where strikes are not allowed, conflict emerges in a different form, such as union grievances. In one study, it was found that the grievance rate for employees who were not allowed to strike was significantly .

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higher than the rate for employees who could strike.i The possibility of a strike may cause negotiators to make required concessions to reach an agreement. After a strike starts, the union and the employer will be forced to re-evaluate their most recent bargaining positions. A strike might also play a part in intra-organizational bargaining, by bringing the expectations of bargaining unit members into line with what the bargaining team can achieve.

Significance of Strikes For many people, a reference to unions or labour relations leads to negative thoughts about strikes. Periodically news reports contain references to exceptionally long strikes or clashes between pickets and police. Before examining the significance of strikes, it should be noted that some perceptions about them may be incorrect.

There are still reasons strikes are significant and could be a cause for concern. Some have led to violence and property damage. Nine replacement workers were killed in a 1992 bombing incident during a strike at a mine in Yellowknife. In 2006, an Ontario community college professor was struck and killed by a car when he was on the picket line. Strikes may cause employers to lose business, and a few have led to a business being permanently closed. Other strikes cause inconvenience to the public, such as traffic gridlock and commuter frustration, when transit workers stay off the job. Unionized public-sector workers may face certain restrictions in their ability to strike due to a need to ensure continuity of essential services offered to citizens by police, fire and medical professionals.

Factors Affecting Strikes There are several factors affecting the incidence and duration of strikes. Every contract negotiation is unique, because it involves different employees and employers, a particular bargaining history and certain economic factors.

II.

Differences in Information Between Union and Employer

Some observers have contended that strikes are caused because the union and the employer are basing their negotiations on different information. The employer will have access to information, such as sales and revenue forecasts, which is unavailable to the union. This results in the parties having different expectations. The union may think the future looks bright and the employer has the ability to provide a wage increase, while the employer sees tough times ahead and thinks that granting wage increases in the short term is not prudent.

ECONOMIC FACTORS Generally, strike activity increases in periods of higher employment and decreases as unemployment rises. A possible explanation for this is that when the business cycle reaches its peak and unemployment is lower, employees are more willing to strike because it is easier to find an alternative job. Strike activity is lower in bargaining units that have experienced higher increases in their real wages during the previous contract. A distinction can also be drawn between different types of strikes on the basis of when the strike occurs. Strikes might occur when the parties negotiate their first collective agreement, on the renewal of an expired agreement, or occasionally during the term of the agreement. In some first contract .

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situations, a dispute may relate to a non-monetary issue such as the first-time establishment of seniority or compulsory union membership. Economic factors are more significant for contract renewal strikes. Although wildcat strikes during the term of an agreement are illegal, they still can occur.

BARGAINING UNIT AND COMMUNITY CHARACTERISTICS Some researchers have considered employee and community characteristics as factors affecting strikes. In larger bargaining units, there may be more alienation toward the employer, which increases the likelihood of a strike. Societal or community support for labour unions may also create tolerance for labour unrest or disruptions caused by strike action compared with communities with low union density or no historical connections with unions.

CONFLICT WITHIN THE EMPLOYER OR UNION Internal conflict within either the employer or the union could be a factor affecting strike activity. Within the union, there will be various interests and differences among the membership along the lines of gender, age, seniority, and other factors. These differences may mean that the union cannot agree on demands or concessions that are necessary to reach an agreement. Similarly, there might be divisions within the management team that contribute to an impasse in negotiations. In some cases, management bargaining representatives may lack the authority required to reach an agreement. When the real decision makers are not accessible to the management negotiating team, it risks under-estimating the union’s commitment to the issues. The union may be forced to strike in some cases to get the real decision makers more involved in contract talks.

RELATIONSHIP BETWEEN THE UNION AND THE EMPLOYER The relationship between union and employer negotiators may be a factor affecting strike activity. Where there is hostility, or a history of attitudinal structuring between the parties, a lack of reasonable consideration and objective assessment of proposals create a barrier to settlement.

NEGOTIATOR’S SKILLS AND EXPERIENCE The negotiation skills and experience of the negotiating teams can affect the likelihood of a strike. Inexperienced negotiators are more likely to make errors such as committing themselves to a position they cannot withdraw from without a loss of reputation or charges of unfair labour practices. Less-experienced negotiators may not send out proper signals regarding where they would be willing to settle or fail to pick up on cues from the other side about settlement possibilities. Inexperienced negotiators might also think that in order to establish a reputation they must obtain more in negotiations, and this leads to a bargaining impasse.

BARGAINING HISTORY The previous bargaining between the parties might affect the likelihood of a strike. Prior contract negotiations and strikes might have caused hostility that in turn leads to an impasse in current talks. If a previous strike was brief and did not cause employees to lose a large amount of income, they may be more willing to again support a strike.

Alternatively, it has been argued that a previous strike may have imposed costs that the parties will want to avoid, thus making a strike less likely.

LEGAL ENVIRONMENT The allocation of authority in labour relations matters to the provinces has led to policy differences on issues such as the requirement for conciliation or .

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mediation, and replacement worker legislation. It has been found that while legislation requiring conciliation is largely ineffective in reducing the incidence of strikes, mandatory strike votes have reduced the incidence of strikes. Some jurisdictions have legislation that prohibits the use of replacement workers. It has been found that legislation banning the use of replacement workers increased the incidence and duration of strikes.ii This particular finding is interesting, because unions have previously contended that a ban on the use of replacement workers would decrease the incidence of strikes. In some jurisdictions, legislation allows for a contract to be reopened during the term of the agreement. It has been found that such “re-opener” provisions lead to a reduction in strikes. A possible explanation for this is that the re-opening provision allows the parties to resolve any problems before discontent accumulates and leads to a strike.

EMPLOYEE DISCONTENT Employee dissatisfaction and frustration with their employer may be a factor that affects strike activity. It has been suggested that a collective voice approach, which views strikes as an expression of worker discontent, explains strike activity. This approach notes that because strikes involve costs and uncertainties, workers must be convinced to strike on the basis of fairness and legitimacy, not just by appealing to their economic selfinterest. It is also contended that the employment relationship involves a subordination of employees to management. This is the basis for discontent, which can be expressed in a number of ways, and will more likely be expressed by a strike when alternatives are not available.

Research has found that workplaces with more autonomy and progressive HRM practices have lower strike levels. Strikes are also more likely to occur where union leaders are under pressure to be more militant because of employee discontent.

The nature of many of the factors affecting strikes has led some observers to view strikes as mistakes—something that could be avoided if the parties had the same information, avoided negotiation errors and acted rationally. However, according to the collective voice approach, strikes are an expression of fundamental employee discontent and should not be viewed as mistakes.

Some see union bargaining power as affecting the size of any wage increase; however, it will not necessarily affect the incidence of strikes. It is argued that if the union has more bargaining power, management has an incentive to increase its offer and avoid a strike, hence the view that differential bargaining power is a theory of wages, not of strikes. Alternatively, if strikes are viewed as a consequence of employee discontent, bargaining power plays an indirect role in the determination of whether they will occur. If discontent is high and union strike power is high, union negotiators will be under more pressure to be militant in bargaining, and the likelihood of a strike is increased.

It is thus apparent that the causes of strikes are complex. Strikes should not be viewed simply as tests of economic strength. Strikes may be affected by numerous factors including negotiator experience, the legal environment and employee discontent.

If strikes are viewed as being an expression of employee discontent, it will be necessary to take steps to reduce that discontent. It has been suggested that having employers adopt more progressive employment practices and enacting legislation that ensures satisfactory compensation, safe working conditions and fair treatment may help reduce discontent. .

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III.

Chapter 9 Strikes, Lockouts, and Contract Dispute Resolution

When Can the Parties Strike or Lockout?

Several restrictions govern when a union may strike, or an employer may lockout employees.

A strike or lockout that does not meet the requirements is illegal. The parties cannot strike or lockout while a collective agreement is in force. This leads to the question of whether employees not on strike, who are covered by a different collective agreement, can refuse to cross the picket line of employees in other bargaining units. The employees involved might work for the same employer—for example, where production workers face a picket line set up by striking office workers. The striking employees might work for another employer, and employees must enter the second employer’s place of business to make deliveries or provide services.

Generally, a refusal to cross a picket line is an illegal strike, but there are exceptions and differences between jurisdictions. If an individual refused to cross a picket line, it would not constitute a strike, because a strike is defined as a collective refusal to work. Action taken by one employee cannot be a strike. To further complicate the matter, some collective agreements have a provision that employees will not be required to cross a picket line. Such provisions are in conflict with legislation that prohibits a strike during the term of an agreement and will not prevent a labour relations board from declaring a strike illegal in most jurisdictions, because the parties are not legally allowed to contract out. Unions and employers in most jurisdictions should be aware that the provisions in collective agreements allowing employees to refuse to cross a picket line will not prevent a Labour Relations Board from declaring a strike illegal. The parties are not allowed to condone activity the legislation makes illegal. However, provisions like this may have significance if the employer disciplines employees who refuse to cross a picket line.

An arbitrator might refuse to uphold the discipline because of a contract provision allowing the refusal. In summary, where there is a provision in a collective agreement allowing employees to refuse to cross a picket line, employers can likely still pursue a remedy from the Board for an unlawful strike, but they may not be able to discipline employees.

Some unions have negotiated terms in collective agreements that give employees the right to refuse to work on, handle or deal with goods coming from or going to an employer involved in a labour dispute. A hot cargo clause may be restricted so that the employees can refuse the work only if the dispute involves their union or their employer. In most jurisdictions, this type of clause has been found to be unenforceable because it is an attempt to contract out of the statutory prohibition against a strike or lockout during the term of the agreement.

Before there can be a strike, the parties must have negotiated and complied with the duty to bargain in good faith. If this requirement is not met, a labour relations board might order the parties to resume negotiations. In six jurisdictions, the parties must have completed a conciliation process before a strike or lockout is permitted. Some jurisdictions have a one-stage process involving a conciliation officer. Other jurisdictions provide for a second stage involving a conciliation board. In all jurisdictions, the process includes a cooling-off period after the conciliation officer or board has reported. The parties cannot strike or lockout until after the cooling-off period, which ranges from 7 to 21 days.

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Should a Hot Cargo Clause Be Enforceable?

The employer assigned work to composing room employees that was normally done by employees belonging to the union who were locked out at another newspaper. The union filed a grievance alleging that the employer had violated Article 16 of the agreement. The employer’s position was that the employees who refused to do the work were engaging in an illegal strike.

The arbitration board that heard the matter held that the refusal to do the work assigned was a strike. Furthermore, the Board held that the article relied upon by the union was in conflict with the provisions of the Labour Relations Act, which provided that there be no strike or lockout during the term of the agreement. Accordingly, the union’s grievance was dismissed. This decision illustrates that a provision in a contract relating to hot cargo may not be enforceable.

All jurisdictions require that a strike vote be held by secret ballot. In all jurisdictions except Nova Scotia, a strike must be approved by a majority of those who vote.

In Nova Scotia, the strike must be approved by a majority of employees in the bargaining unit, a more restrictive provision because the union will have to obtain the support of a majority of employees, not just of those employees who actually vote. It has been found that mandatory strike votes reduce the incidence of strikes.iii Certain jurisdictions require the union to give a strike notice ranging from 24 to 72 hours: in some cases, notice must be given to the employer; in others, both the employer and the Ministry of Labour must be given notice. In British Columbia, there is a provision for the Labour Relations Board to order a longer strike notice where perishable property is involved.

In the event a strike or lockout results in special hardship, governments can pass special legislation ending the labour dispute. In some jurisdictions, instead of relying on special or ad hoc legislation, a special mechanism has been established to deal with labour disputes that may cause hardship. In the federal jurisdiction, British Columbia and Alberta, legislation provides for the designation of essential services or an emergency in a strike or lockout. If a service is declared essential, or an emergency is declared, a strike is prohibited.

REMEDIES FOR ILLEGAL STRIKES AND LOCKOUTS In the event of an illegal strike or lockout, the employer or union may pursue remedies through the grievance and arbitration process, or the labour relations board. The possibility of obtaining a remedy in more than one forum, and the differences between jurisdictions, make this a complex area. The union or employer should seek legal counsel in its jurisdiction.

The union does not automatically have liability in the event of an illegal strike by employees.

It will only be liable if union officers are involved in the illegal activity or the union fails to act to halt it. It follows that in the event of an illegal strike, the employer should call it to the attention of union officials immediately. Because an illegal strike or lockout is a breach of the collective agreement, the union or employer might file a grievance, and if the matter is not settled an arbitrator could award damages. The damages would be the amount required to compensate the innocent party for the breach of the agreement. Employers can be ordered to pay lost wages and the union can be ordered to pay the costs and lost profits associated with the strike. An arbitrator cannot order employees involved in an illegal strike to pay damages. In most .

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jurisdictions, the union or the employer might also seek a declaration from the labour relations board that there has been an unlawful strike or lockout. The board might order damages to be paid.

Strike Activity and the End of a Strike When employees go on strike, the employer is allowed to continue to operate. There is legislation prohibiting the use of replacement workers during a strike in the federal jurisdiction, British Columbia and Quebec. Even where the law allows replacement workers to be used, in some cases the employer will not be able to continue operations because it cannot find a sufficient number of employees with the skills required to perform the work of those on strike.

While employees are on strike, they will usually receive strike pay from the union, usually a relatively small amount of money. In order to receive strike pay, individuals are typically required to engage in picketing. If employees cannot engage in picket duty because of a disability, the union will accommodate by assigning these persons to alternative duties such as administrative work associated with the strike. The union may arrange with the employer for some benefits to be continued by paying the relevant premiums. Some affected union members may seek alternate employment elsewhere during the strike.

PICKETING The union will likely establish a picket line at the employer’s place of business.

Pickets cannot trespass on private property. Accordingly, pickets may be excluded from areas such as shopping malls. There is a difference between what the law allows pickets to do and what some actually do. Legally, a picket line can only be established to inform or persuade the public. The law does not allow pickets to obstruct entry or intimidate. Picketers will usually carry signs to advise the public about the strike and may also hand out leaflets. In some strikes, unions have also attempted to inform the community by putting notices in newspapers and distributing leaflets to homes. However, some picket lines have been set up and operated to block entry. The employer can apply to the courts in most provinces for an injunction to limit aspects of picketing. However, this is a time-limited remedy and not a permanent restriction on the union’s right to picket.

In all provinces except British Columbia, labour relations legislation does not extensively regulate picketing, and picketing issues are dealt with in the courts. One court decision deserves mention. Until 2002, the courts had held that secondary picketing—picketing at a location other than where striking employees work, for example, at a customer of the employer—was automatically illegal. In 2002, the Supreme Court of Canada handed down a decision that secondary picketing only violates the law if it involves “wrongful action.” In the future, some jurisdictions could pass legislation to regulate secondary picketing; however, any such regulation must not contravene the freedom of expression provisions of the Canadian Charter of Rights and Freedoms.

END OF THE STRIKE A strike will usually continue until the parties reach a collective agreement; however, a union may call an end to the strike without a new contract being negotiated. In a few cases, the parties have not reached an agreement and a strike has continued indefinitely. In five jurisdictions—Canada, British Columbia, Manitoba, Newfoundland and Labrador and Ontario—labour relations legislation provides that the Minister of Labour or .

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cabinet may order a final offer vote by employees where it is in the public interest to do so. For example, if a strike by sanitation employees was causing exceptional difficulties, a vote could be ordered. If employees vote in favour of the offer, it will be the basis of an agreement and the strike will end. If this vote is unsuccessful, the parties return to the bargaining table to continue negotiations, probably with the assistance of a mediator, or more likely in the case of essential public services, the government would order binding interest arbitration to settle all remaining issues.

Legislation in the federal jurisdiction, Alberta, Manitoba, Ontario, Prince Edward Island, Quebec and Saskatchewan provides that when a strike has ended, striking employees must be reinstated and given priority over any employees hired as replacement worker.

Reinstatement of Striking Employees Other jurisdictions that do not have an expressed right to reinstatement, the union could file an unfair labour practice complaint if an employee participating in a strike was not reinstated..

The union and management may also enter into various back-to-work protocols following the end of a strike. This arrangement could include various matters such as: •

prohibiting discipline for actions during the strike

•

assuring no discrimination or retaliation for actions during the strike

•

requiring any proceedings such as bad faith bargaining complaints to be withdrawn

These agreements encourage the parties to put all the unpleasantness of the strike behind them and move on.

INTERNATIONAL COMPARISONS When considering the Canadian strike record in comparison to other countries, several measurement problems must be noted. Countries have different definitions of what constitutes a strike. In Canada, all disputes in which 10 or more work days are lost are counted as a strike. In the United States, a strike is only included in the statistics if it is a work stoppage of 1,000 or more workers. Accordingly, comparisons between Canada and the United States of the number of strikes are of little value. Therefore, unless the reader of these numbers considers the definition of a strike used in each country, the wrong conclusion might be reached. However, despite these measurement problems, the time lost because of strikes in Canada is high by international standards. This is largely because Canadian strikes generally last longer than those in other countries.

IV.

Contract Dispute Resolution

If union and management bargaining teams cannot agree on the terms of a first, or thereafter, renewed collective agreement, various forms of assistance are available. This is referred to as third-party assistance because it involves an external party conferring with the union and the employer. The most common forms of assistance—conciliation and mediation—involve a .

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neutral third party attempting to aid in reaching a settlement on outstanding contract issues that are preventing a conclusion to the bargaining process. In most jurisdictions, this assistance is available from the government ministry responsible for labour issues. All jurisdictions other than Ontario allow the parties to request assistance, or the government minister responsible for the labour portfolio can initiate the process without a request. In Ontario, the legislation requires a formal request to the labour minister by either the union or employer. There are significant differences between jurisdictions regarding the form and significance of assistance to the parties.

No two jurisdictions provide for the same procedure. The most important of these issues is whether some form of third-party assistance is required before a strike or lockout is allowed.

Types of Third-Party Assistance An easy way to remember the three forms of third-party assistance in resolving a deadlock in collective bargaining is by using the acronym CMA. The third-party assistance provided via conciliation, mediation and arbitration processes have a similar purpose but are structured and timed in a unique manner.

CONCILIATION The concept of conciliation, dates back in early Canadian labour relations history with the passage of The Conciliation Act (1900). In contemporary times, some, but not all, of the principles of this historical law remain in place. In all jurisdictions except British Columbia and Alberta, labour legislation provides for a conciliation process. There is either a one-stage conciliation process involving either a conciliation officer or a conciliation board, or a two-stage process involving a conciliation officer and then a conciliation board if no settlement is reached with the conciliation officer. Conciliation officers are government ministry employees who confer with the parties, endeavour to help them reach an agreement and report back to the labour minister on the likelihood of a settlement between the parties on the outstanding bargaining issues in dispute. Conciliation officers function as facilitators; they do not have any authority over the parties and do not make recommendations regarding the terms of the dispute. In most jurisdictions, the labour minister may appoint a conciliation officer when either or both of the parties make a request to the ministry or the labour minister may on his or her own initiate the appointment. In Saskatchewan, the legislation provides for the appointment of a conciliation board instead of an officer.iv A conciliation board consists of a union nominee, an employer nominee and a neutral chairperson selected by the parties’ nominees. The board hears evidence from both sides and makes recommendations to the labour minister regarding a settlement. The minister may make the board’s report public. This third-party settlement option is a vestige of the original 1900 federal law intended to bring public embarrassment to one or both negotiating parties and thus apply pressure to settle the labour dispute without resorting to a strike. When used, the board’s recommendations are not binding. However, there is a provision in most jurisdictions that the parties can agree that the recommendations will be binding.

After a conciliation officer, or a conciliation board reports to the labour minister, there is an additional waiting period that must elapse before the parties can strike or lockout in all jurisdictions that provide for conciliation except Saskatchewan. This is known as a cooling-off period, and ranges from 7 to 21 days in length depending on the jurisdiction. In those .

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jurisdictions where the labour minister decides whether to appoint a conciliation board, the notification that one will not be appointed is often referred to as a no-board report. In some jurisdictions, including Ontario, where the optional conciliation board is not being used, a noboard report after the conciliation officer completes his or her work is the standard procedure.

The conciliation process is viewed as having advantages and disadvantages. It could help the parties reach an agreement because the third party may bring a new perspective to the negotiations, and the cooling-off period may allow the parties to reconsider their positions.

However, there is no empirical evidence that it reduces the overall incidence of strikes. In situations where a strike or lockout is going to be necessary to force the parties to reconsider their positions, conciliation may only delay the process. Some unions have claimed that the process favours the employer because it provides management with additional time to prepare for an eventual strike. A conciliation board has the same potential advantages as a conciliation officer. However, the extent to which conciliation board reports actually have any effect is difficult to determine. Conciliation boards will even further delay a strike or lockout. This is a disadvantage where a work stoppage is necessary to force one or both of the parties to reevaluate their positions.

MEDIATION In Alberta and British Columbia, the legislation refers to mediation instead of conciliation. In all other jurisdictions, the legislation allows for the appointment of mediator instead of, or in addition to, the conciliation process. Mediators attempt to assist the parties to reach an agreement. They cannot force a settlement of a disputed issue on the bargaining teams.

Mediators as Active Participants in Resolving Disputes in Collective Bargaining Mediators typically play a more active role in negotiations. Their legal, management or union experience along with developed conflict resolution skills frequently enable them to help resolve key distributive bargaining issues that have frustrated both management and union negotiators.

FACT-FINDING is a process found in private-sector legislation in British Columbia and some public-sector labour relations statutes. A fact-finder is an individual who investigates the issues and reports to the Minister. The report may contain non-binding recommendations and is usually made public.

ARBITRATION Arbitration is a completely different form of third-party assistance because the arbitrator makes a final and binding decision establishing the terms of the collective agreement after hearing the parties. The arbitration of a collective bargaining dispute is referred to as interest arbitration.

Interest arbitration should not be confused with grievance or rights arbitration, which deals with a dispute relating to the administration of the collective agreement. For example, if an individual was dismissed, the union would file a grievance and if not settled, the issue could be referred to rights arbitration.

Interest arbitration is used primarily in the public sector where it is provided as an alternative to a strike or lockout. In the private sector, interest arbitration could be used if the parties agreed .

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to do so. However, it is seldom seen in the private sector because at least one of the parties may perceive that it does not want an arbitrator to make an award containing terms that it would not agree to in bargaining. The arbitrator is a neutral third party who hears evidence from both parties regarding the possible contents of the collective agreement. Both sides will present evidence attempting to convince the arbitrator, including references to comparable collective agreements, to make an award favourable to their preferred position.

Conventional interest arbitration has been criticized for several reasons. Establishing arbitration as the final dispute-resolution mechanism may hinder the parties negotiating a collective agreement on their own. It has been argued that arbitration may have a chilling effect on negotiation, meaning the parties may be discouraged from making concessions that might lead to an agreement. Consider the issue of wages and suppose the union is demanding a 4 percent increase and the employer is offering a 1 percent increase. Assuming that an arbitrator would order a wage increase somewhere between the parties’ positions, the employer or the union may decide it would end up better off if it made no concessions before arbitration. It has also been suggested that arbitration may have a narcotic effect. Negotiators may become overly dependent on an arbitrator deciding difficult issues for them instead of making the tough decisions required to reach an agreement. Another way to view the narcotic effect is that it may be safer for union or employer negotiators to say they did their best and that the agreement was the decision, often characterized as the fault,of the arbitrator.

Final Offer Selection An alternative form of interest arbitration may avoid the problems associated with traditional or conventional arbitration. Final offer selection is a form of arbitration in which both the union and the employer submit their final offer to the arbitrator, who chooses one of the offers. The terms provided in the selected offer are incorporated into the collective agreement.

There are two forms of final offer selection: total-package and item-by-item. In totalpackage final offer selection, each side presents an offer that covers all of the outstanding issues between the parties such as wages, benefits and vacations. The arbitrator then must choose the entirety of either the union’s or the employer’s proposal. In item-by-item final offer selection, the arbitrator separately chooses between the union and the employer proposals for each item in dispute. For example, the arbitrator might accept the union’s proposal on the issue of wages and the employer’s proposals on the issues of benefits and vacations.

The major advantage of final offer selection is that it should encourage the parties to reach their own agreement. This is especially true when total-package final offer selection is used because both parties face the substantial risk that the arbitrator might choose the offer made by the other side. However, there are potential disadvantages associated with final offer selection.

The process creates winners and losers, and this may cause hostility that affects the administration of the agreement and rounds of future negotiations. There may be less risk of creating hostility where item-by-item selection is used, because both parties see parts of their offer incorporated into the new collective agreement.

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First Contract Arbitration First contract arbitration (FCA) was described as a policy alternative that has been adopted in most jurisdictions. FCA can be used to resolve an impasse in the first negotiation between the parties. However, as previously outlined, there are some restrictions on the availability of FCA, and it will not be ordered in all situations when there is a bargaining impasse.

Second or Subsequent Contract Arbitration Another policy option, which has been adopted in Manitoba, is to make arbitration available in second and subsequent contract negotiations on the application of one of the parties. The legislation allows either of the parties to apply to the Board for a settlement. The Board inquires, into the negotiations to determine if the parties have bargained in good faith and whether they are likely to conclude an agreement within 30 days if they continued to bargain. If the Board finds that the party making the application is negotiating in good faith and the parties are unlikely to conclude an agreement within 30 days, any strike or lockout must be terminated, and the terms of an agreement are settled either by an arbitrator that the parties agree upon or by the Board. This is a significant policy development. After FCA was introduced by one jurisdiction, it was subsequently adopted by eight other jurisdictions. Second or subsequent contract arbitration could also be adopted by other jurisdictions in the future.

However, it appears to be a departure from previous policy, and its widespread adoption appears to be unlikely.

MEDIATION-ARBITRATION Mediation-arbitration is a two-step process, sometimes referred to as med-arb. The individual assisting the parties first tries—as a mediator—to help them reach their own agreement. If a settlement is not reached, the same person then acts as an arbitrator and decides the terms of the collective agreement.

Med-arb has not been extensively used in interest arbitration. An advantage of med-arb is that if the mediation attempt is not successful, the parties can get more quickly to the arbitration process. Also, if the dispute proceeds to arbitration, the arbitrator will have accumulated a large amount of knowledge about the issues. A potential problem is that the parties may not be totally candid with a mediator when they know that the same person may later be acting as an arbitrator.

There is also a concern that the person assisting the parties may obtain information in the mediation process that may improperly influence his or her decision as an arbitrator.

Other Dispute Resolution Methods In addition to the various forms of third-party assistance, a contract dispute could be resolved in some jurisdictions by a final offer vote and by back-to-work legislation in all jurisdictions.

FINAL OFFER VOTE In some jurisdictions the employer may request a final offer vote or the labour minister may direct such a vote. These votes should be viewed as an alternative way to resolve a collective bargaining dispute.

BACK-TO-WORK LEGISLATION refers to a special statute passed by a government legislature to end a strike or lockout. It orders the strike or lockout to end, and usually provides for the terms of a new agreement to be determined by interest arbitration. In some cases, the legislation sets out the terms of work instead of providing for arbitration. Back-to-work .

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legislation has been used in the public sector in cases where employees have the right to strike but it is deemed that the continuation of a strike will impose excessive hardship on the public; for example, it has been used to end transit and teacher strikes.

There has been a major change in the frequency of back-to-work legislation in Canada in recent years. Since the early 1980s, the number of instances of back-to-work legislation is higher than any other period in the history of labour relations in Canada. In the last three decades, the federal government alone passed 19 pieces of back-to-work legislation while provincial governments across the country have enacted 71 pieces of back-to-work legislation.

Most of this legislation (51 of the 92 pieces of legislation) not only forced employees back to work after taking strike action, but also arbitrarily imposed settlements on the striking employees.

Back-to-work legislation was first used by the federal government in 1950. Parliament has used this legislative remedy 34 times prior to 2011. It has been suggested that this action not only established a new norm in labour relations but also de facto amended the Canada Labour Code to prevent strikes in the transportation and communications sectors while leaving the legislation untouched.

V. Review Questions 1. Identify the key policy variables relating to third-party assistance in contract dispute resolution.

See Figure 9-5 for a summary of policy issues related to contract dispute resolution.

• • • •

What form(s) of third-party assistance are made available?

What is the role of the assistance provider?

Is third-party assistance required before a strike or lockout?

How long must the parties wait after conciliation or mediation before a strike or lockout?

2. Distinguish between conciliation or mediation, and arbitration.

Conciliation involves a neutral third party that acts as a facilitator to assist the parties reach an agreement. Legislation in some jurisdictions refers to mediation instead of conciliation. In other jurisdictions mediation involves a third party playing a more active role to assist the parties reach an agreement after conciliation has been unsuccessful. Conciliation and mediation do not involve a formal hearing, and a conciliator or mediator does not make a formal order which is binding upon the parties. In arbitration there is a formal hearing and after the arbitrator hears the evidence from the parties the arbitrator makes a formal order which is binding upon the parties.

3. Describe the possible problems that are associated with arbitration.

Interest arbitration has been criticized primarily because of the chilling and narcotic effects. The chilling effect refers to the concept that a party in negotiations may not be willing to make a .

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concession because it thinks that an arbitrator may be involved later in the process. For example, if a union was demanding a four percent wage increase and suspected that an arbitrator later would make an award somewhere between the unions demand and employer's offer, there is a disincentive to reduce the demand to three percent. The narcotic effect refers to the concept of the parties becoming dependent upon an arbitrator settling the terms of the agreement instead of them making the tough decisions and concessions that are required to reach an agreement.

4.

Why is arbitration infrequently used in the private sector?

In the private sector both parties would have to consent to refer a contract dispute to interest arbitration. It is likely that one of the parties perceives they will be able to achieve a better outcome if they avoid arbitration and insist upon negotiation and a strike or lockout if necessary.

For example, an employer may think that employees are not willing to strike so it is possible to force the union to agree to terms that may be more favourable than those an arbitrator would impose. Alternatively, a union might be in a situation where it is in a strong bargaining position and thinks that it will be able to force the employer to agree to terms that are more favourable than an arbitrator would award.

5.

What concerns may unions and employers have regarding final offer selection?

Both parties fear that the arbitrator may accept the contract proposed by the other side. Each side faces a risk of a significant loss. This risk would be higher with total offer final offer selection.

Final offer selection could be viewed as the nuclear bomb of negotiations. The threat that it will be used and the loss that could result will motivate the parties to make concessions to reach an agreement on their own.

6.

Describe the functions of strikes.

A strike (or lockout) may be the catalyst required to achieve a collective agreement. A strike may force the union to abandon a demand or force the employer to improve its offer. Some have argued that strikes serve as a way to release pent-up frustration. It has been noted that in situations where employees are not allowed to strike the grievance rate is sometimes higher.

7.

Identify the factors that affect the incidence of strikes.

It should be noted that strikes are caused by both economic and non-economic factors. Another way to classify the factors affecting strikes is to view strikes as being a result of mistakes, such as differences in information between the union and employer, or as expressions of worker discontent.

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The following table refers to factors that have been found to influence strikes.

Factors Increasing Strikes:

Factors Decreasing Strikes:

Different knowledge and information held by Common knowledge and information held by the parties the parties Lower unemployment and economic growth Higher unemployment and recession Larger bargaining unit

Smaller bargaining unit

Conflict within the union or employer bargaining team

Consensus within the union and employer bargaining teams

Conflict between the union and employer

A more cooperative relationship between the union and employer

Negotiators with less skill and experience

Negotiators with more skill and experience

Bargaining history: brief strike(s) that did not Bargaining history: longer strikes that have impose costs on employees imposed costs on employees Legislation prohibiting the use of replacement workers

No prohibition on the use of replacement workers

Employee discontent

Employee satisfaction

8.

List the legal requirements for a strike or lockout in your jurisdiction.

The two key items that could vary between jurisdictions are: 1) whether conciliation or mediation is a requirement, and 2) whether a notice is required VI. 1.

Discussion Questions Why do some individuals views strikes as harmful?

Strikes may be viewed as harmful for the following reasons: • business closures • loss of jobs • inconvenience to the public • economic impact • violence and property damage in exceptional cases • discouragement of investment

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In a discussion regarding the effects of strikes the following points which were not referred to in the text could be explored. Is it possible that the harmful effects of strikes are exaggerated because in some cases production is simply shifted from one organization to another or to another time period? For example, if there was a strike at one video store customers could obtain their videos at another store. In some industries total production is not affected; adjustments are made before or after the strike. In the mining industry it is doubtful that a strike reduces total production, it may simply change the time when the minerals are extracted.

2. On the basis of your experience and the reading of this chapter, to what extent do you think strikes can be viewed as mistakes?

Strikes should not be viewed as mistakes if they are an expression of collective voice or employee discontent. If strikes are viewed as being caused by preventable factors such as inexperienced negotiators or information differences, they could be viewed as mistakes.

3. A newspaper report indicates that a union can legally go on strike or the employer may lockout employees at midnight on a specified date. What does the reference to legality mean? Why is the strike or lockout legal at midnight as opposed to some other time?

In order for a strike or lockout to be legal it must meet the requirements listed in Figure 10-4. In several jurisdictions one of the requirements is that the conciliation process be completed. The conciliation process includes a waiting or cooling off period. For example, in Ontario a strike is legal on the 17th day after the Minister of Labour mails a no-board report. Because the waiting period must expire, and a strike or lockout can legally start on 17th day after the no-board report is mailed, the strike or lockout is legal at midnight. This assumes that the other legal requirements for a strike, including a strike vote, have been met.

4. Arbitration of second and subsequent contract disputes on the request of one party is provided for in only one jurisdiction. What are the arguments for and against this policy?

This policy avoids a strike or lockout. It also prevents an employer from avoiding the union by carefully appearing to be bargaining in good faith, but really trying not to reach an agreement.

Arguments against this policy include the possible chilling and narcotic effects of arbitration and the criticism that the parties should determine the terms that they will have to live with.

5. Is it possible that some employees and unions would not want the right to strike?

Explain.

Some employees may not want the right to strike because they fear the possible consequences including the loss of income. Some employees such as caregivers may not want to see the service to their clients interrupted. A union could be in a weak bargaining position and perceive that it can achieve a better outcome if the final dispute resolution mechanism is arbitration instead of a strike.

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VII. Web Research 1. Strike activity will vary in number and industry.

2. This Week in Labour History can be found under the Who We Are tab.

3. Canada appears to be in the middle to lower level of strike activity. It is also noted that several countries have not reported recent data.

4. Most jurisdiction will have provisions for medication and conciliation processes in the legislation. Variances may appear with respect to when these services can be requested. In some cases, i.e.: first contract negotiations mediation may be required.

VIII. Vignette A Strike at IKEA An IKEA in British Columbia served a lockout notice to the union which represented approximately 350 employees, this was the same time the union served strike notice to IKEA. This labour dispute lasted 17 months. The union called this a lockout while IKEA called it a strike, with the B.C. Labour Relations Board ruling it a strike.

The store remained open with reduced hours during the lockout, with human resources including managers, non-union employees, and bargaining unit employees who had crossed the picket line operating the store. The union filed a complaint with the B.C. Labour Relations Board alleging that IKEA was using illegal replacement employees contrary to ss. 6(3)(e) and 68(1) of the B.C. Labour Relations Code. Section 68(1). The Board the ordered IKEA to cease and desist from those breaches and authorized wide-reaching industrial relations audits for the duration of any strike or lockout.

The Labour Relations Board ruled that IKEA bargained in bad faith and violated provincial labour law by trying to bargain directly with striking employees through a website posting. The union complained to the labour board that IKEA offered striking employees an additional $2.50 per hour, weekend premiums, and incentives to cross picket lines.

A ten-year agreement was reached on wages, benefits, and operations flexibility through binding recommendations issued by the mediator. This agreement included automatic annual increases for all employees and benefits including a new health-care spending account.

IX.

Case Incident: Coastal Forest Products

The purpose of this case is to illustrate an illegal strike, the responsibility of the union for an illegal strike, and the remedies that are available to the employer.

1. Is the union claim regarding the use of union suppliers a valid one? How could it be proved?

It is hard to prove the claim made by the union regarding the use of union suppliers because there is no mention in the section 3 of the collective agreement for the issue. That is why the concrete .

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tender for the expansion operation at the Coastal Forest Products Company was awarded to an external company M&K. And, when they began working on the property of the company , union bearers and employees tried to protest or disrupt the work for 3 hours and could not continue the disruption after that because they did not have right to strike or slow down or interfere in the work according to the collective agreement section 3 clause.

2. How does section 3 of the collective agreement “help” or “hinder” the union in this situation?

Section 3 of the collective agreement prevents the union to cause, promote, sanction, or authorize any strike, sit down, slowdown, sympathetic strike or other interference with work by the employees for any cause whatsoever until all provisions of this agreement relating to the grievance and arbitration procedure have been complied with. Therefore the work stoppage or disruption on behalf of union employees was not accounted for due to the arrival of the M&k truck at the property of Coastal Forest Products Company.

3. What action might the employer take in response to this situation? Be specific.

The employer can file a grievance, which will allege that there has been a violation of the no strike provision in the collective agreement and claim damages from the union. This could be an appropriate place to remind students that an employer cannot sue the union; the employer must use the grievance process instead of suing.

4. What outcome do you expect in this case? Explain.

An arbitrator would have to determine: 1) if there has been an illegal strike, 2) if the union was responsible for the illegal strike because it failed to take action to prevent it or failed to take action to end the strike after it had begun, and 3) the remedy to be awarded to the employer It is evident that there is an illegal strike here. Employees have refused to work in concert.

Although the union could argue that it took steps to get employees to return to work, these attempts were feeble. The union president advised employees to return to work but he did not do so himself. The union vice-president said that by law he was required to advise employees to return to work, however, he did not do so. The efforts of the district officer, Fern MacGregor, were also inadequate. He could have directed or called upon union officers to return to work but he did not do so.

This case is based on Riverside Forest Products Ltd. and I.W.A. Canada, Local 1-423, 70 LAC (4th) 441. The arbitrator upheld the company's grievance, holding that the union had failed to take action to end the illegal strike. The arbitrator referred the dispute back to the parties to determine the damages that had been suffered, retaining jurisdiction to fix the damages if the parties could not agree. The employer would be entitled to any losses and additional costs that were incurred as a result of the illegal strike. .

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Robert Hebdon and Robert Stern, “Tradeoffs Among Expressions of Industrial Conflict: Public Sector Strike Bans and Grievance Arbitrations,” Industrial and Labour Relations Review, 50 (1998), 204.

i

ii

Ibid.

Peter Cramton, Morley Gunderson and Joseph Tracy, “The Effect of Collective Bargaining Legislation on Strikes and Wages,” The Review of Economics and Statistics, vol. 81 (1999), 475.

iii

Government of Saskatchewan, The Saskatchewan Employment Act, Chapter S-15.1 of the Statutes of Saskatchewan, 2013 (effective April 29, 2014) as amended by the Statutes of Saskatchewan, 2014, c.E-13.1 and c.27; 2015, c.31; 2016, c. 17; and 2017, c.P-30.3 and c.31, http://www.publications.gov.sk.ca/freelaw/documents/English/Statutes/Statutes/S15-1.pdf, accessed May 16, 2018.

iv

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Chapter 10 Administration of the Collective Agreement

CHAPTER 10 ADMINISTRATION OF THE COLLECTIVE AGREEMENT Preface This chapter will examine key concepts and processes involved in day-to-day administration of a collective agreement in the work setting. This will include a review of the concept of management rights. The role of seniority and issues linked to discipline of employees will also be discussed in light of both non-union and unionized work settings. The union’s representative role when interacting with management on contract administration matters and significance of the grievance procedure will be examined. Rights arbitration as a means for settling unresolved grievances will also be explained from a procedural perspective along with specific forms to this third-party resolution approach.

Learning Objectives 10.1 Identify possible limitations on the exercise of management rights.

10.2 Explain how seniority might affect the placement, layoff and recall of employees.

10.3 Discuss the implications of human rights legislation for the administration of the collective agreement.

10.4 Explain the significance and functions of the grievance and arbitration process.

10.5 Outline the formal and informal steps of the grievance procedure.

10.6 Outline the procedural and legal aspects of the arbitration process.

10.7 State problems with grievance arbitration and identify alternatives.

10.8 Describe the disciplinary measures that are available to the employer.

10.9 Apply discipline in compliance with the collective agreement and the law.

10.10 Describe the union’s duty of fair representation and indicate how the employer could be affected.

Outline/Table of Contents I. II. III. IV. V. VI. VII. VIII. IX. X. XI. XII. XIII.

Management Rights Human Rights Issues in the Administration of the Agreement The Grievance and Arbitration Processes Progressive Discipline Issues and Outcomes at Arbitration Last Chance Agreements Non-Disciplinary Measures for Innocent Absenteeism Duty of Fair Representation Review Questions Discussion Questions Web Research Vignette Case Incident

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I.

Chapter 10 Administration of the Collective Agreement

Management Rights

A voluntary article in a collective agreement confirms that managers and supervisors retain the right to manage the operations in an organization except where these rights, also sometime referred to as residual rights, are limited by language negotiated in the collective agreement. For example, management has the right to hire new employees. This right may be limited by language in the collective agreement that prescribes applicant recruiting methods or sets certain rules related to considering an internal applicant’s seniority when selecting a successful applicant to fill the job vacancy. A management rights article is different from most collective agreement terms because its purpose is to benefit management, whereas most of the other terms in a collective agreement benefit unionized employees. Relying on this article, management can make decisions relating to methods of operation and levels of production. However, the management rights article does not allow the employer to do anything it wants; there are limitations on the exercise of management rights.

PROVISIONS OF THE COLLECTIVE AGREEMENT When the employer claims to exercise any management rights, it must comply with other provisions in the agreement. A fundamental principle in labour relations is that the collective agreement must be read as a whole document. If the contract requires the employer to provide clothing, the employer could not rely on the management rights article to adopt a policy on uniforms that requires employees, to pay for them.

COMPLIANCE WITH THE LAW Any action the employer takes relying on the management rights article must meet the basic requirement of complying with any relevant legislation and the common law. An employer cannot take any action that violates legislation, including human rights, employment standards, other statutes, or the common law. In one case, an employer relied upon the management rights provisions in the collective agreement to attempt to introduce a biometric payroll and timekeeping system that used employee fingerprints.

Although it should be noted that the law relating to privacy is still evolving, an arbitrator prohibited the establishment of the system on the basis that it was an invasion of the employee’s privacy interests. Interestingly, during the COVID-19 pandemic, the majority of court challenges of employer mandated COVID-19 vaccines and public health measures are being denied to keep workplaces safe for all stakeholders—employees and customers. Importantly, many of these cases include employee grievances in unionized workplaces. Further, one arbitrator stated that protecting the workplace falls within health and safety legislation.

ESTOPPEL The doctrine of estoppel may prevent the union or the employer from relying on and enforcing the terms of the collective agreement. Where a party makes a representation to the other, by way of words or conduct, indicating that an issue will be dealt with in a manner different from the provisions of the agreement, the party who made the representation will not be able to later insist upon the collective agreement being enforced.

Statements made by a party to the agreement could be the basis for an estoppel. In one case, a collective agreement provided that layoffs would occur in reverse order of seniority. The employer, a hospital, hired two laboratory technicians. The hiring manager assured both technicians when they were hired that they would not be laid off because of funding cuts or the .

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return of other employees to the department. However, the hospital laid off the technicians 14 months after they were hired when other employees returned to the bargaining unit. When the employees objected, they were told that the collective agreement was clear on the question of seniority on layoffs and there was nothing that could be done because they had the least seniority. A grievance was filed, and the arbitrator held that the doctrine of estoppel applied.i Because of the representations made to the technicians before they were hired, the employer could not rely on the collective agreement, and the layoff of the technicians was nullified.

The union and the employer should be alert to the possibility of estoppel based on conduct or past practice. In one case, the collective agreement provided that certain benefits would be paid to employees after a three-day waiting period.ii Despite the terms of the collective agreement, the employer had a long-established practice of paying employees benefits during the three-day period. When the employer indicated it would enforce the three-day waiting period in the future, the union filed a grievance relying on estoppel. The arbitrator upheld the grievance and ordered the employer to continue to pay the benefits according to its practice for the balance of the term of the agreement.

Similarly, a union might be caught by an estoppel argument based on prior past practice if it failed to enforce all the terms of the agreement. For example, a collective agreement will usually provide for a probationary period. If the employer made a habit of extending the period, in breach of the agreement, and the union took no action, the union may not be allowed to object to an extension of the period on the basis of estoppel.

An estoppel will not be established by a single failure to comply with or enforce the collective agreement; however, employers and unions should be aware of the risk of repeated failures to enforce a term of the agreement. An employer who wanted to vary from the collective agreement to deal with a short-term issue should consider consulting with the union and attempting to reach an agreement that would prevent an estoppel argument being raised when the employer wished to revert to the terms of the agreement. For example, if the agreement provided for a rate of remuneration for employees who drove their own cars, and the price of gas increased significantly, an agreement might allow the employer to increase the mileage allowance for a time and avoid any possible estoppel arguments later.

Estoppel does not mean that a party will be prevented from enforcing the terms of the agreement indefinitely. An estoppel will cease at the next round of contract negotiations if the union or the employer advises the other that it will rely on the strict terms of the agreement in the future. The party that has previously relied on the variation from the collective agreement will have to negotiate a change to the agreement. If it fails to do so, it will be deemed to have agreed to the application of the agreement as written.

Seniority Accumulation and Termination of Seniority Seniority is a key factor in many elements of collective agreement administration. It is used by unions to protect bargaining unit members from arbitrary or prejudicial decision-making by .

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management through the use of an objective factor—the member’s length of service with the employer. Employers must ensure that seniority is recorded in accordance with the collective agreement and the law. Seniority continues to accumulate during periods when employees are not working, including a leave or layoff, unless the agreement provides otherwise. Employment standards legislation typically requires seniority to continue to accumulate during leaves such as pregnancy and parental leave. Collective agreements that do not permit seniority to accumulate may contravene such legislation. Grievances have been filed in cases where employees have lost jobs because their seniority did not accumulate during absences caused by illness or accident, and arbitrators have found this discriminatory. It is also possible for the collective agreement to specify whether time spent working outside of the bargaining unit would be counted toward seniority.

The collective agreement may contain a deemed termination provision stating that if the bargaining unit member is absent for a specified time, they are automatically terminated. The administration of this provision may require the employer to notify the employee about the termination and allow them to respond. Some arbitrators have held that the employment relationship is not terminated if the employer fails to do so. A human rights issue arises if the deemed termination provision is applied to an employee who was absent because of a disability, as a termination relying on the deemed termination provision could be discriminatory.

Accordingly, employers will be able to justify a termination on the basis of a deemed termination article only if it is established that the employer has met its duty to accommodate.

Job Posting and Selection Process Although an employer might prefer to hire part-time employees to fill an opening instead of posting for a full-time job, that is not permitted if the agreement requires vacancies to be posted in the workplace. In cases where the employer gives additional work to part-time employees instead of posting to fill a full-time vacancy after a full-time employee has resigned, arbitrators have held that that is a breach of the agreement and ordered the employer to post the job.

There are procedural matters of which the employer should be aware in the job posting and selection process. Management may determine the job specifications for a position; however, those specifications must be reasonable requirements for the job. In one case where an employer provided that the ability to speak a second language was required, when in fact it was not a legitimate job requirement, an arbitrator found that the procedure was flawed and ordered the job to be reposted. The job posting procedure must be applied in a reasonable manner without any discrimination. The employer cannot post a job setting out certain criteria and then make the selection decision on the basis of different criteria. In one case, the posting for the position of a registered nurse-in-charge referred to clinical skills. However, managerial ability was subsequently added as an important criterion referred to in the selection process. An arbitration board ordered that the job be posted again with this added qualification and the selection process be repeated.

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Layoffs For non-union employees, management may not have the right to impose a temporary layoff unless such details have been incorporated into terms and conditions in their letter of hire or the circumstances leading to the layoff were a reasonable expectation in light of common practices in the industry (e.g., construction work). In a unionized workplace, the employer must refer to the negotiated definition of layoff in the collective agreement to determine whether the layoff provisions of the contract apply in a given situation. Unless the agreement provides otherwise, the employer can reduce hours of all employees in a bargaining unit, and this will not be viewed as a layoff. In a case where the employer reduced hours for some employees but not others, it was held that there had been a constructive layoff and the employer could not avoid the layoff and seniority provisions of the agreement in this manner. Instead of reducing the hours for some employees in a bargaining unit, the employer will be required to layoff employees, applying the seniority rules in the collective agreement.

Recall to Work Following a Layoff Individuals who have been laid off are still employees until the collective agreement provides otherwise. The agreement may provide that a unionized worker will lose their seniority when she resigns, is terminated for cause, fails to return from a leave of absence or reaches the expiration of recall rights. One of the rights of an employee on layoff whose seniority has not yet been terminated is the right to be notified of, and recalled to, any job vacancies. The collective agreement may state that employees on layoff will be recalled in order of seniority provided they have the skill and ability to do the available work. The method of notifying the laid-off employee on a recall list of the job opportunity may differ based on length of the anticipated layoff period.

For example, if the layoff is anticipated to be 10 days or less, the employer would be expected to notify the laid-off employee in person or by telephone of the recall opportunity. For longer periods of layoff the notification from the employer would send written notification by registered letter or courier to the affected employee. The collective agreement will also likely state that no new employee shall be hired until those laid off have been given the opportunity to be recalled.iii The employer may encounter a situation where there is a job posting requirement in the collective agreement and there are employees on layoff who have recall rights. If there is a job opening, the question the employer faces is whether the job should be filled by recalling an employee on layoff or by posting the job. Although the terms of a particular collective agreement might affect this situation, it has been held that unless the job that is open is the one an employee on recall was previously laid off from, the job posting requirement must be complied with. The employer must post the job instead of simply recalling employees on layoff.iv This gives more emphasis to seniority. If the employee on layoff had two years of seniority and another employee in the bargaining unit had three years, granting the job to the employee on layoff without posting would mean that the employee with less seniority was being given priority.

Assessing Skill and Ability The collective agreement may require the employer to determine the ability of employees when filling job openings, laying off and recalling employees. When employers are determining .

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the skill and ability of employees competing for a job, they may use a range of tools. Testing can be used; however, tests must be reliable, valid and conducted fairly, the same for all employees, and relevant to the job requirements. Interviews can be used; however, they must be conducted fairly, be related to job requirements, and given the appropriate weight. The weight that should be given to the interview will depend on the type of job involved. In one case where the position being filled was in maintenance and involved welding and other manual work, the employer did not consider the application of a candidate who was unresponsive during the interview. An arbitrator found that the employer put too much emphasis on the interview and should have referred to other methods to assess the candidate’s ability such as his work record and observation. How valid and fair are interviews conducted by employers? A study that examined labour arbitration cases where the interview was in dispute indicates there is room for improvement. The study examined all reported arbitration cases relating to the employment interview from two sources, Labour Arbitration Cases and Canadian Labour Arbitration Summaries, from 1987 to 1996. In a majority of the 56 cases (52 percent), it was found that the interview was unfair. Grievances were allowed in 46 percent of the cases. The grievances were not allowed in all cases where the interview was found to be unfair because it was not the only factor in the selection process. There were cases in which the interview was found to be unfair but the grievance was dismissed because the grievor had not been selected for other valid reasons. The main problems found with the interview process were: (1) using interview questions that failed to measure the knowledge, skills and abilities required for the job; and (2) giving the interview results too much emphasis and failing to consider factors such as prior performance appraisals and work history.

Remedies at Arbitration Arbitrators considering promotion decisions made by management take two different approaches. Some only intervene when it is established that the decision process has been arbitrary, discriminatory or unreasonable. They think they should defer to management’s decision unless evidence shows it to be fundamentally flawed. Others look into whether the management decision was actually correct. In cases relating to job posting and promotions, the most common remedy is an order that the employer post the position again and repeat the selection process. However, in some circumstances, an arbitrator may simply award the job to the grievor. In layoff cases, the arbitrator has the authority to order an employee to be placed in a particular job and award damages for lost earnings.

II.

Human Rights Issues in the Administration of the Agreement

Human rights issues are critical in the administration of collective agreements. One arbitrator has summed up the importance of human rights legislation as follows: “The growing pre-eminence of human rights laws in Canada has profound implications for both our established labour relations institutions and the administration of the workplace itself.”v The principles of human rights legislation were considered in Chapter 2. In the following examples we will look at the implications of human rights legislation regarding the obligations imposed on both the employer and in some cases the union in the administration of a collective agreement. .

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Employer and Union Obligations EMPLOYERS AND ACCOMMODATION Employers are prohibited from discriminating on the basis of any of the prohibited grounds provided in human rights legislation. The employer has a duty to accommodate provided that the accommodation would not impose an undue hardship. A rule or requirement that is discriminatory is permissible if it is established to be a bona fide occupational qualification (BFOQ) or bona fide occupational requirement (BFOR).

The elements required to establish a BFOR were also reviewed in Chapter 2. In particular, it was noted that a discriminatory rule or requirement cannot be a BFOR if the employee can be accommodated. For example, a requirement that an employee have a specified level of hearing could not be established as a BFOR if the employee could use a device or equipment that would compensate for a hearing deficiency.

UNIONS AND ACCOMMODATION Unions are prohibited from discriminating on protected grounds outlined in human rights legislation. They also have a duty to accommodate when they are found to be a party to such discrimination. A union could become so involved in two ways: 1. The union participates in the formation of a rule that has a discriminatory effect, by agreeing to the rule or provision inside or outside of the collective agreement; or 2. The union does not participate in the formulation of the rule but becomes a party to the discrimination by impeding the employer’s reasonable efforts to accommodate.

The nature and extent of the union’s accommodation obligations will vary depending on how the duty arises. A union that has agreed to a discriminatory term is jointly responsible with the employer to seek accommodation for the employee. Although the employer will normally be in a better position to facilitate an accommodation, the union still has a responsibility to put forward measures to accommodate. In the second situation, where the union has not agreed to the discriminatory measure, the employer must canvass methods that do not involve the union or a disruption of the collective agreement before calling upon the union to participate in the accommodation. The union’s duty only arises when its involvement is required to make an accommodation possible because no other reasonable accommodation can be found.

DISCIPLINE Employees cannot be disciplined for behaviour caused by a disability. If it was established that an employee guilty of misconduct related to their bipolar disorder that could be controlled with medication, an arbitrator would likely overturn any discipline imposed. The employee would have an obligation to control the situation by taking the necessary medication.

In situations involving an employee’s absence related to a disability, the employer cannot impose discipline. However, the employer is allowed to respond; this is discussed in a separate section below.

Last Chance Agreements (LCA) Last change agreements can be applied to certain human rights accommodation situations. However, the employer may face special problems regarding the enforceability of LCAs. For example, dependency on alcohol or drugs is a disability requiring accommodation by the employer up to the point of undue hardship. It is discrimination .

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to withhold employment or treat a person differently because he or she has a disability. An LCA involving an employee with a disability cannot (1) impose conditions more onerous than those imposed on other employees or (2) impose excessively stringent conditions if less stringent conditions would not impose an undue hardship on the employer. It is advisable for the employer to seek legal counsel when preparing a last chance agreement in such circumstances.

JOB POSTING AND SELECTION If any requirement in a job posting is discriminatory, an arbitrator will order that it be eliminated unless the employer can show that it is a or BFOR. For example, the job posting may not specify the gender of applicants unless that is a BFOR. In determining an employee’s seniority, the employer must ensure that periods of absence caused by the disability are not excluded.

ACCOMMODATION OF EMPLOYEES AND SENIORITY Although employees may require accommodation because of any protected ground under a human rights code, most accommodation issues relate to religion, gender and disability. The employer does not have to create a position that is unproductive or serves no useful purpose for the employer, because that would impose an undue hardship. The union has an obligation to cooperate with the employer’s attempts to accommodate. However, the union does not have to agree to any measures that would impose undue hardship upon other employees in the bargaining unit or the union. If there is no way to accommodate other than an arrangement that involves a variation from the collective agreement, the union must agree to this variation, provided it does not impose an undue hardship. In one case, the collective agreement provided that work done on a Sunday required the payment of overtime. When an employee was not able to work on Saturday because of religious belief, the company proposed that the employee be allowed to work Sundays without the payment of overtime. The union did not agree with this proposal and insisted that any work done on Sunday be paid at the overtime rate as provided in the agreement. In the end, it was held that the union’s failure to agree to a variation from the agreement to allow the employee to work Sundays without the payment of overtime was a violation of its human rights obligations. The union does not have to agree to a variation from the agreement unless other measures to accommodate that do not involve a breach of the collective agreement cannot be found.

The employer’s duty to accommodate may lead to a conflict with seniority provisions in the collective agreement. For example, a possible accommodation might involve moving an employee to a job that is open; however, another employee who has more seniority may want the same job. Cases have established that accommodation can override seniority only as a last resort to allow an employee with disabilities to be given preference. Other measures that do not require a variation from the collective agreement must first be considered. A distinction has been drawn between bumping an employee with more seniority from their job to accommodate and allowing an employee in need of accommodation to move into an open job ahead of other employees.

Arbitrators have not been willing to require an incumbent employee with seniority to be displaced from a job as part of an accommodation. They may be willing to allow an employee who needs accommodation to move into an open job ahead of employees who have more seniority, but only if there is no other way to accommodate.

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III.

Chapter 10 Administration of the Collective Agreement

The Grievance and Arbitration Processes

Labour legislation requires a collective agreement to have language outlining grievance and arbitration processes. The grievance and arbitration process, not the court system, is used by management and the union to resolve disputes concerning the interpretation, application or administration of the collective agreement. Such processes may have more steps as negotiated in collective bargaining between management and the union.

DISPUTE SETTLEMENT A dispute settlement mechanism is necessary because there are many potential sources of conflict between management and the union during the term of the collective agreement. It is likely that there will be disagreements regarding the interpretation or meaning of contract terms. During collective bargaining, union and management teams may not anticipate that particular language drafted for the agreement is ambiguous or ill-defined. In other cases, contract language may be left vague when it is negotiated because the parties cannot agree on more specific terms. For example, the collective agreement might refer to certain benefits being paid to employees who are hospitalized, without clarifying what the term hospitalized means. If an employee received treatment as an outpatient and did not remain in hospital overnight, there might be a dispute about whether the employee was hospitalized.

The grievance procedure will provide a mechanism to resolve the meaning of the term and the rights of the employee. The grievance procedure also provides a mechanism to resolve disputes flowing from management decisions made as a result of the terms in the collective agreement. A management decision to discipline and discharge a bargaining unit member for just cause or to determine in an employee selection process whether an employee has sufficient ability to perform the listed duties are examples of this decision-making. It is likely that employees or the union will disagree with some of these decisions. There might also be disputes when two or more collective agreement terms appear to be in conflict with each other. The management rights article might appear to allow the employer to install new equipment, but another article dealing with technological change might appear to prohibit such a change.

Canadian labour relations legislation prohibits strikes and lockouts during the term of a collective agreement and complements this with a requirement that disputes relating to the administration of the agreement must be referred to arbitration. This is summarized in the obey now, grieve later rule, which means that unless the disputed management directive is illegal or would entail a safety risk, the employee must follow it, even if it appears to violate the collective agreement, and pursue a grievance later.

ENFORCEMENT OF THE COLLECTIVE AGREEMENT The grievance and arbitration process can be used to enforce the collective agreement and remedy any breaches. If an employee was not assigned overtime hours that he or she was entitled to, the grievance process provides a way to recover the wages lost due to this management oversight. If a grievance was filed and the matter was not settled, an arbitrator can order the employer to pay the compensation owing to the affected bargaining unit member.

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ADDITIONAL BARGAINING DURING THE TERM OF THE AGREEMENT The grievance process may provide a forum for additional negotiation between the parties during the term of the collective agreement. An article may specify general terms relating to work conditions that need to be clarified or expanded upon to settle the grievance, thus providing further bargaining between the parties on the disputed matter. For example, if an article provided for a workload formula for teachers, there might be a dispute about the application of the formula in a particular case. A settlement of the grievance might include an elaboration or clarification of the disputed article in the current collective agreement. The settlement might then be incorporated into the collective agreement during its remaining term and possibly carried forward into the next round of collective bargaining.

Benefits of Grievances and Arbitration The grievance process has potential benefits for the union, the employer, and unionized employees.

BENEFITS COMMON TO ALL THE PARTIES All parties will benefit if disputes are resolved without a stoppage of work. Employers will maintain productivity and employees will not lose compensation. Settling disputes during the term of the agreement instead of allowing them to build up until the next contract negotiations may also help the parties improve their relationship and make future contract negotiations easier.

BENEFITS TO MANAGEMENT The grievance process could be used as a communication or consultation mechanism through which management may learn of possible workplace problems and take timely corrective action. The procedure may also improve the quality and consistency of decision-making by managers because they know that employees can access the grievance process if decisions are not made fairly and consistently with the collective agreement.

It has been suggested that employees who are dissatisfied have two primary methods to deal with their situation: exit or voice.vi This means that dissatisfied employees can either leave the employer or stay and attempt to resolve problems. Unionized organizations have lower turnover rates, which may benefit employers. It has been argued that unions also give employees this voice through the grievance process.

BENEFITS TO UNIONS AND UNION OFFICIALS The union may be able to use the grievance procedure as a pressure tactic against management by filing a large number of grievances prior to contract negotiations. Unions could also use the grievance procedure to oppose and even overturn some management directives. For example, in one case a municipality employed ambulance drivers and attendants. The employer adopted a policy requiring lights and sirens to be used on all calls that were designated as emergencies. The rule was a change from past practice, which allowed drivers some discretion in the use of lights and sirens. The ambulance drivers and attendants thought that the policy posed a safety risk for themselves and the public. The employees filed grievances claiming that the new rules were unreasonable. An arbitrator found that there was no justification for the rule and that any discipline imposed under the rule would be unjust. It ordered that the policy be suspended. A grievance might also increase union solidarity by rallying support against the employer. The procedure might benefit union leaders seeking re-election, because the membership sees them fighting for employee interests. .

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BENEFITS TO EMPLOYEES Employees may benefit from having unresolved workplace disputes proceed to arbitration, providing a resolution by an impartial third party. If an employee was passed over for a promotion, a grievance might result in the employee being awarded the job. Even if the employee does not win the grievance, the procedure may prove satisfying to the employee by creating a forum to be heard. The procedure also provides job security in instances where terminated employees, through the grievance process, are reinstated to their jobs.

Potential Concerns of Employers Regarding the Grievance Process Because the grievance process can be used to challenge management decisions, it has the potential to be a source of problems for the employer. Collective agreement terms and the grievance procedure will also impact several HRM practices including employee recruiting, selection, training and discipline.

The extent and success of attempts to resolve disputes before a grievance is filed, or prior to the arbitration hearing, are likely related to the relationship between management and union representatives. Where the relationship is more cooperative, there will be more attempts to settle a dispute prior to arbitration. At least one study has confirmed that there is a relationship between the labour relations climate and grievance outcomes. It found that when there was a lower grievance rate in an unionized organization, the unions were most often more cooperative with greater consultation.

Grievance Procedures Conflict is seen in all workplaces for a variety of reasons. However, not all problems and complaints become grievances. In many workplaces, there is an attempt to resolve an issue by having a discussion between the line manager and employee prior to filing a grievance. This is frequently identified as a complaint stage in the grievance process.

If the complaint is not resolved, the union initiates the grievance procedure by preparing a grievance form and submitting it to the employer representative, usually the supervisor of the unionized employee, or as specified in the agreement. The union may use preprinted grievance forms that contain basic information and are completed by a union official, who fills in the particulars.

After a grievance has been filed, informal discussions may take place to try to resolve the issue, in addition to the meetings prescribed in the collective agreement. The supervisor presented with the grievance may consult with their supervisor and the organization’s labour relations or HRM department. Such consultations during the grievance process are further attempts to settle the dispute and avoid arbitration.

The grievance rate is the number of grievances filed divided by the number of employees in the bargaining unit. The grievance rate is higher in bargaining units where the labour relations climate is poor. It should be noted that there may not be a causal relationship between the labour–management relationship and the grievance rate. Furthermore, it is not clear whether a

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more cooperative relationship leads to lower grievance rates or lower grievance rates lead to a more cooperative relationship.

Ownership of the Grievance The ownership of the grievance refers to the issue of who decides whether a grievance is filed, settled, withdrawn or referred to arbitration. In most cases, it is the union and not the employee who has ownership or control of the grievance, subject to the duty of fair representation. It is up to the union, not the employee, to decide whether a grievance will be filed and how it will be resolved. From the union’s standpoint, and keeping in mind unions are a business entity, the prospect of pursuing a grievance on a certain dispute that has not successfully been upheld at arbitration, which is an expensive undertaking, does not make good business sense. There may be rare exceptions to this rule in some unions. For example, the constitution of the Ontario Public Service Employees Union (OPSEU) provides that the individual employee has control over a grievance.

Grievance Procedural Matters The discussions between management and union representatives at grievance meetings are considered privileged communications, meaning they cannot be referred to at any subsequent arbitration hearing. It is also the case that any admissions or offers to settle made during the course of grievance meetings cannot be presented as evidence at the arbitration hearing. Documents that are part of the formal grievance procedure, including management’s replies at each step of the grievance process, may be introduced as evidence at the hearing.

Accordingly, the employer’s replies should be clear and concise, and any offers to settle should be in separate documents. Written communication between grievance meetings should be labelled as without prejudice, meaning that the documents cannot be referred to at a subsequent arbitration hearing. For example, if the union in a letter headed “Without Prejudice” offered to settle a grievance relating to a dismissal by having a suspension imposed on an employee, this offer could not be referred to at the hearing.

The parties should be aware that a failure to follow the procedural requirements set out in the grievance process by one side may require a response from the other. A waiver is a legal concept meaning acceptance of the rule that if a party does not object to a procedural error, for example, a missed time limit, it cannot raise the issue later. For example, if the grievance procedure in the collective agreement provides that after Step 1 the union had 10 days to refer the grievance to Step 2, and the union did not act for 20 days, the employer should object in writing before proceeding to the Step 2 meeting. If the employer goes ahead with the meeting and waits until the arbitration hearing to raise the issue of the failure to meet the time limit, it may be found to have waived the failure to comply. Alternatively, the employer may want to carefully consider whether it wants to rely on the time limits to dismiss a grievance on a technicality. In a majority of jurisdictions in Canada, legislation provides that arbitrators have the authority to allow an arbitration to proceed even though a time limit in the grievance process was not met.

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Settlement Agreements If a grievance is settled prior to the conclusion of the arbitration hearing, which is often the case, the settlement should be set out in a written document, which may be referred to as minutes of settlement or a memorandum of settlement. This document should refer to the grievance, confirm the grievance has been resolved, and set out the terms of the settlement, such as a reinstatement of a terminated employee or payments for owed overtime to be made to the unionized employee. The settlement documentation should be signed by the employer, the union and any employees involved. Consideration should also be given to providing that the settlement is done on a without precedent basis, meaning it cannot be referred to in any subsequent proceedings. Why is such a consideration important? Imagine the employer dismissed an employee who was in possession of an illegal substance in the workplace and a settlement included reinstatement of the employee. If the settlement was on a without precedent basis, it could not be referred to in any subsequent case, and the employer would be free to discharge another employee later for the same offence.

Arbitration Although only a few grievances, approximately 2 to 3 percent of those filed, proceed all the way to arbitration, employers and unions must understand the arbitration process. The alternative forms of arbitration that the collective agreement might provide for, including a single arbitrator or an arbitration board. Arbitration is an adversarial process in which representatives of management and the union present documentation, witness testimony and references to prior cases to the arbitrator or arbitration board, which makes a final and binding decision to resolve the disputed grievance.

Rights versus. Interest Arbitration A distinction must be drawn between grievance, sometimes referred to as rights arbitration and interest arbitration. Grievance or rights arbitration resolves disputes relating to the interpretation, application or administration of the collective agreement. If an employee was discharged, they could file a grievance alleging that there was a violation of the collective agreement because there was not just cause. If the dispute was not settled through the grievance process, it could be referred to rights arbitration for final resolution, including possible reinstatement of the employee. Interest arbitration relates to an entirely different type of dispute that arises during collective bargaining where the negotiating parties cannot agree on the terms of a collective agreement. In interest arbitration, the employer and union present evidence and make submissions regarding what the agreement should contain, and the arbitrator’s decision sets out the terms of the contract. Interest arbitration is used primarily in areas of the public sector such as police and fire services, in which strikes are not allowed.

Arbitrators The selection of an arbitrator may be decided upon by management and the union. In cases where the parties cannot agree on the selection of an arbitrator, one will be appointed by a labour relations board. Alternatively, the collective agreement or other agreed-to procedure may .

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provide an arbitrator based on a set roster. Most arbitrators have a legal background, but there is no requirement that the arbitrator be a lawyer, although many arbitrators are university professors and lawyers. Although a few do arbitration work full-time, many do arbitrations on a part-time basis. Usually a few experienced arbitrators are handling a disproportionately large number of cases in each province or territory. The parties may be interested in the track record of an arbitrator to see how much experience they have and to determine how they have decided cases similar to the one at hand.

The Arbitration Hearing The proceedings for unresolved grievances between union and management representatives are commonly referred to as a hearing. At the hearing, these representatives will be allowed to make an opening statement, present evidence through witnesses and documents, cross-examine the other side’s witnesses and make a final argument. Lawyers may represent the parties, but this is not required. If both sides have agreed on some or all of the facts, such as dates of employment or certain events that have occurred, they might prepare and present to the arbitrator at the start of the hearing an agreed statement of facts. The facts set out in this statement will not have to be proven at the hearing, which will shorten the time required to establish the factual issues and allow the parties to move on quickly to the argument stage of the hearing.

The hearing is held at a neutral site, typically a meeting room in a hotel. Each side is responsible for ensuring that its witnesses are present, and arrangements can be made to subpoena witnesses to compel them to attend. The arbitrator might render a decision immediately in cases that are clear; however, the arbitrator usually requires more time to review the evidence, resulting in a delay in the decision of several weeks or longer depending on the complexity of the case.

The labour relations legislation of each jurisdiction sets out the authority of arbitrators.

Arbitrators have been given the authority to do whatever is necessary to conduct a hearing, including fix the dates for hearings, issue summonses for witnesses and determine the admissibility of evidence.

BURDEN OF PROOF In any arbitration case, either the union or the employer will bear what is known as the burden of proof—that is, it will have the responsibility to prove the facts in dispute. The general rule is that the burden of proof is borne by the party filing the grievance, which in the majority of cases is the union. Discipline and discharge cases are an exception. In such cases it is the employer that bears the burden of proof. The burden of proof will be significant if the arbitrator cannot decide whose version of the facts is true, because in that event the party bearing the burden of proof will lose. If a union filed a grievance alleging that an employee had sufficient ability for a job vacancy, and the evidence was not clear, the burden of proof would not be met and the arbitrator would dismiss the grievance. Another way to state this is that the union had the onus to show that the employee had sufficient ability and it failed to do so.

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ARGUMENT IN THE ALTERNATIVE Either side can make an argument in the alternative. This means that neither the union nor the employer is restricted to putting forward only one claim or defense. They can make secondary or alternative arguments if the arbitrator does not agree with their primary position. In effect, either side can say, “Our position is A; however, if you do not agree with A, we submit that you should find B.” An example of a union making an argument in the alternative might arise in a discipline and discharge case as follows.

The union’s first position might be that there was no misconduct by the employee; however, if the arbitrator finds there was misconduct, the union’s alternative position might be that the penalty imposed by the employer was unreasonable and should be reduced. The authority of an arbitrator to reduce a penalty is discussed later in this chapter.

Arbitration Decisions Thousands of arbitration decisions are made every year. Previous decisions on an issue are often influential on later ones; however, they do not establish binding precedents. Because arbitrators may have different views on some matters, it is possible to have conflicting decisions or two schools of thought on some issues. On the issue of the appropriate remedy for an employer’s failure to properly distribute overtime, some arbitrators take the approach of providing the employee with the next opportunity to work overtime. Others think the remedy should be an award of cash to compensate the employee for lost earnings.vii At the hearing, the union and the employer will both try to refer to previous cases that support their position. In the cases dealing with the dismissal of employees, the arbitrator has to decide whether to uphold the dismissal or substitute a lesser penalty. At the hearing, the employer would refer the arbitrator to previous decisions in which arbitrators upheld the dismissal of employees guilty of similar misconduct. The union would try to present similar cases in which arbitrators ordered reinstatement.

One source of arbitration decisions is Labour Arbitration Cases, a series that reports important decisions. Commentary on arbitration cases useful to both employers and unions can be found in Canadian Labour Arbitration (5th ed.)and Leading Cases on Labour Arbitration.

Some arbitration decisions are also available online at the Canadian Legal Information Institute.

Previously decided cases establish points of labour law that can also guide the parties when negotiating the collective agreement. For example, numerous decisions have clearly established that the employer is permitted to contract out work unless the agreement prohibits it. Knowing this, the parties can negotiate accordingly. The union will seek to have the collective agreement limit the employer’s right to contract out, perhaps even making a concession in another area to obtain some limitation. Employers will try to avoid limits on the right to contract out, knowing they can contract out unless the agreement provides otherwise. The parties may also use previous decisions to help settle a grievance. In a situation in which an employee has been guilty of minor insubordination, the matter to be resolved is the discipline that should have been imposed. If it were found that previous decisions set the penalty at a one-day-to-one-week suspension, this would guide the settlement negotiations. Arbitrators are bound by the relevant legislation in their jurisdiction and by court decisions interpreting that legislation. The Supreme Court of Canada has confirmed that arbitrators have the authority to enforce the rights and obligations provided in human rights and other employment-related statutes. .

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Arbitrators must deal with questions of fact and questions of law. For example, regarding questions of fact, an arbitrator would have to determine whether an employee was guilty of theft, or whether an employee has sufficient ability for a job. For a question of law, an arbitrator may have to determine whether an employer has met the duty to accommodate. In the course of determining points of law during arbitration hearings, references will be made to legislation and to previous court and arbitration decisions.

Arbitrability The arbitrator does not have authority to deal with all disputes that might arise between the union and the employer. Arbitrability refers to whether an arbitrator has the authority to hear the dispute and render a decision. A dispute is referred to as arbitrable if the arbitrator has the authority to hear it, and inarbitrable if he or she does not. There are several possible reasons why a dispute is inarbitrable. When is a Dispute Arbitrable refers to a situation in which there was a question of arbitrability: When is a Dispute Arbitrable?

An employer established an early retirement plan that offered financial incentives to employees to participate. The plan provided that the employer could deny an employee’s request to participate if the organization would have to hire a new employee to replace the prospective retiree. On this basis, the employer denied several requests to participate in the plan. The collective agreement did not refer to the issue of early retirement.

When some employees who were denied access to the plan filed grievances, an arbitrator dismissed them. It was held that because the disputes related to a matter not referred to in the collective agreement, the grievances were not arbitrable. In order for a grievance to be arbitrable, it must deal with an alleged breach of a term of the agreement or a violation of employment legislation.

Cost of Arbitration The employer and the union may have lawyers represent them at an arbitration hearing.

This will be a factor affecting the cost for each side. A collective agreement may provide details on these costs. It is more likely that these fees will be discussed by management and the union with the arbitrator. In situations where there is only one interest arbitrator, the parties will split the professional fees and expenses regardless of who wins. Arbitrator’s fees range from $2,000 to $3,500 per day for the hearing and writing up the award. There will be additional expenses, including the cost of the room for the hearing. If an arbitration board is used instead of a sole arbitrator, the parties will also have to pay the additional fees owing to their representatives on the board. Depending on whether lawyers are used and the length of the hearing, arbitration can be expensive. The costs can be especially significant for a small union or employer and may be a factor in reaching a settlement prior to the arbitration hearing. One of the parties may back down, or the parties may compromise, to avoid the significant expense of going to a hearing. The cost of arbitration is one of the factors leading some academics and practitioners to recommend alternatives, such as grievance mediation. .

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Remedies Arbitrators have authority to issue orders that will resolve the violation of the collective agreement. For example, arbitrators have the authority to: order the reduction of discipline imposed upon employees, including ordering reinstatement; make a declaration that a party has violated the agreement and direct compliance; and order the payment of damages for financial loss. In one case where it was found that a supervisor had been guilty of harassing an employee and the employee had been off work as a result, the arbitrator ordered the employer to restore the employee’s sick leave credits, pay the difference between the employee’s regular pay and sick leave pay for the time the employee had been away from work, ensure that the employee would not come into contact with the supervisor in the future, establish an anti-harassment training program for managerial staff and pay the employee $25,000 in general damages.viii In another case, one arbitrator extended the remedies granted in arbitration. The employer terminated an employee who had 23 years of service with the federally regulated employer, claiming they had been guilty of making a false sick leave claim. The arbitrator found that the employer’s investigation was superficial and the employer had failed to comply with the collective agreement when it did not request an independent medical examination as required by the agreement. The arbitrator upheld the grievance and awarded the grievor in excess of $500,000 for a bad faith dismissal. It was found that the employer’s extreme conduct had been the cause of the employee’s mental condition, and the arbitrator awarded $50,000 for emotional stress, $50,000 in punitive damages, lost salary and losses for future pay and benefits.ix This latter case was appealed to the Divisional Court and the outcome of this appeal is summarized in the following section.

Review of Arbitration Decisions What can the employer or the union do if it thinks that an arbitrator’s decision is wrong?

In most jurisdictions, it is possible, although a rare occurrence, to make an application for judicial or court review of an arbitration decision. In British Columbia, decisions can be reviewed by the Labour Relations Board. The Supreme Court of Canada has restated the law relating to the judicial review of decisions by tribunals and arbitrators.

In the above-referenced case involving the employee terminated for allegedly falsifying a sick leave claim, the employer appealed the decision to the Divisional Court. The Court found the arbitrator correctly considered the terms of the collective agreement, the Ontario Labour Code and the particular facts of the case. However, it quashed the $50,000 in damages awarded by the arbitrator for mental distress and pain and suffering along with the additional $50,000 for punitive damages. It ordered the arbitrator to decide how much of the first $50,000 was due to mental distress and what portion of the amount was attributed to pain and suffering. Regarding the matter of punitive damages, the Divisional Court noted the arbitrator had failed to justify this particular award on two of the three required elements for an award of punitive damages in a contract case. The arbitrator was ordered by the Court to review and decide whether punitive damages against the employer were possible or appropriate in light of the judicial review of this case.

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When a court reviews an arbitration decision, the standard applied is one of reasonableness as opposed to correctness. The standard of reasonableness has been described in one case as follows: “Reviewing courts cannot substitute their own appreciation of the appropriate solution but must rather determine if the outcome falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law. There may be more than one reasonable outcome. However, as long as the process and the outcome fit comfortably with the principles of justification, transparency and intelligibility, it is not open to a reviewing court to substitute its own view of a preferred outcome.” Accordingly, it is possible that an arbitration decision could be viewed by some as incorrect; however, a judicial review will not be successful because the decision meets the reasonableness standard.

Problems with Arbitration The arbitration process has been criticized as being too legalistic, expensive and slow. Some alternatives may be less expensive and more expeditious solutions.

Expedited arbitration resolves issues more quickly by providing shorter time limits for arbitration. They might also agree to a process that will not allow lawyers or limit required evidence to be in written statements. The labour relations legislation in seven jurisdictions— Alberta, British Columbia, Manitoba, Newfoundland and Labrador, New Brunswick, Nova Scotia and Ontario—provides for an expedited procedure that is available upon the request of one of the parties.x There is some variation between jurisdictions on the details. Generally, the legislation provides that either the union or the employer may request the Minister of Labour to appoint a single arbitrator. The Minister is required to appoint an arbitrator who must commence hearings on the matter within a specified number of days of the request. In some jurisdictions, if the parties agree, the arbitrator is required to deliver an oral decision immediately or as soon as possible after the conclusion of the hearing.

Grievance mediation is a confidential process in which a mediator helps the parties negotiate a settlement. Instead of hearing evidence and providing a binding decision, the mediator helps the parties reach a voluntary agreement.

When grievances are referred to arbitration, it usually takes six to nine months to move from the request for arbitration to the final award. It takes much less time to start the grievance mediation process. Grievance mediation will not take as long as arbitration because the parties are not delayed by the painstaking examination and cross-examination of witnesses. For example, in the Canadian Federal Public Sector Labour Relations and Employment Board, “the grievor is required to submit the reference to adjudication to the Board no later than 40 calendar days after receiving the employer’s decision at the final level of the internal grievance process, or 40 days after the expiry of the period within which the decision had to be made.

The costs of grievance mediation are much lower because mediator fees are significantly less than those of arbitrators, and usually lawyers are not involved. The parties may negotiate a winwin solution through grievance mediation that will improve their relationship. In contrast, arbitration will typically leave a winner and a loser between management and the union, which may harm the relationship. .

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Mediation may also work better with some types of grievances. If the grievance relates to a seniority issue there may be less incentive for the employer to negotiate and make concessions, because arbitrators tend to be more deferential to management decisions in this area. In discipline and discharge cases, where there may be less certainty about the outcome of an arbitration hearing, there may be more incentive to negotiate. It appears that the process works best if the mediator is an experienced arbitrator with mediation skills. If they are familiar with the arbitration process and the possible outcomes, the arbitrator may use this information at the appropriate times to pressure the parties to avoid the costs and uncertainty of arbitration if the mediation fails. The Newfoundland and Labrador government report that grievance mediation has a success rate of 84 percent of cases referred being resolved. Because of the lower costs and other potential advantages, grievance mediation may be worth considering. It will not be suitable for all cases, particularly if one of the parties wishes to establish a precedent; in that case, they will want to proceed to arbitration.

Discipline and Discharge Management rights language in a collective agreement permits management to take disciplinary actions against employees in order to change undesired behaviours and actions associated with the performance of job duties and general conduct on, and sometimes off, work premises. Given the power of the employer in exercising disciplinary action up to and including discharge from employment, unions serve an advocacy role in protecting bargaining union members from arbitrary and disproportionate disciplinary sanctions by management. The following section will explore grounds for discipline, progressive discipline and other procedural matters related to the discipline and discharge of union employees.

Possible Grounds for Discipline or Discharge If an employee is guilty of misconduct away from the job, the employer cannot impose discipline unless the misconduct impacts the employer’s business interests. When there is such impact, discipline up to and including discharge is possible. The nature of the misconduct and the business conducted by the employer will be important. The same misconduct may or may not justify dismissal or discipline depending on the nature of the business. In one case, a residential care worker in a facility for mentally challenged individuals pleaded guilty to theft after a shoplifting incident away from the job. The employer dismissed the worker, but an arbitrator ordered them reinstatement because it was not shown that the conviction was related to the nature of the work done by the employee and the employer’s reputation was not affected. In another case, the discharge of a municipal electrical inspector who had been convicted of growing marijuana was upheld at arbitration. In short, a criminal conviction for conduct away from the job will not in itself justify discipline. The employer will first have to establish a connection with and harm to the employer’s business or reputation.

IV.

Progressive Discipline

An employer may impose the following discipline on an employee guilty of misconduct, depending on its severity: (1) verbal warning; (2) written warning; (3) suspension (time off without pay); (4) dismissal. Employers are expected to apply progressive discipline, meaning .

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they should impose a lesser penalty for a first offence and apply more severe penalties if there is further misconduct. Progressive discipline assumes that the purpose of discipline is to correct misconduct, reinforce desired behaviour related to job duties and organizational rules and restore the employment relationship.

Progressive discipline often begins with a verbal warning, followed by a written warning, a suspension and ultimately discharge.

1. Verbal warning. Here the employee and supervisor have an evidence-based discussion of the situation. The supervisor should carefully assess the situation and what perspective is provided by the employee regarding their actions. The supervisor should remind the employee what conduct is expected related to job performance and coach the employee on how to deal with future situations. The verbal meeting is usually recorded in the HRM files but not placed in the employee file. The issue of union representation at such a meeting will be a function of past practice but is typically not a procedural requirement.

2. Written warning. When the employee is determined to have repeated the undesired behaviour that was the basis for the verbal warning, they are called to a meeting with their supervisor. The supervisor should carefully review the evidence with the employee and note by the employee’s point of view and evidence regarding their actions. Based on information learned at the meeting, the supervisor will provide a further warning to the employee to cease such behaviour, affirm what conduct is expected related to job performance and instruct the employee how to deal with future situations. At this second stage of the progressive discipline, the employee is formally advised at the meeting and in writing that future occurrences of such behaviour will lead to further discipline up to and including dismissal.

The issue of union representation is advisable at such a meeting, as the warning letter will be placed in the employee’s file held by HRM. The role of the union representative is an observational one when attending this meeting. The issue of subsequent written warnings due to repetition of employee misconduct should be weighed very carefully by the supervisor in consultation with the organization’s HRM policies and collective agreement to avoid rendering this stage of the progressive disciplinary process to be unsuccessful in changing the employee’s conduct.

3. Suspension. Further misconduct by the employee triggers a meeting with the supervisor, a labour relations or HRM representative, senior departmental management, and a union local official. The supervisor should carefully share the evidence of the situation and note the employee’s point of view and evidence regarding their actions. Based on information learned at the meeting, the supervisor, department manager and labour relations or HRM professional will typically recess to confirm whether to proceed with a suspension with or without pay, rejoin the meeting with the employee and their union representative and inform the employee of the decision. When a suspension is imposed, the employer should advise the employee of the previous record that has been considered. A written summary of the decision and details related to the length of the suspension is provided to the employee, and a copy of the letter is placed in the employee’s HRM file. This written warning again informs the employee that future occurrences of such behaviour will lead to further discipline up to and including dismissal from employment. .

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4. Dismissal. In cases of a long disciplinary history, management cannot simply decide to review the employee’s file and terminate the employee’s employment. There must be a culminating incident.xi This is a further incident of employee misconduct that becomes the cause for dismissal when considering the employee’s total disciplinary history. At a meeting of management and union officials and the employee, the incident of the most recent misconduct is carefully assessed and the perspective of the union member is heard. When a discharge is imposed, the employer should advise the employee of the previous record that has been considered. Failing to specify the past misconduct in reasons for the discipline might mean that the employer will not be allowed to rely on it at an arbitration hearing.

Based on information learned at the meeting, the supervisor, department manager and labour relations or HRM professional will typically recess to confirm whether to proceed with the dismissal of the employee. The management representatives will rejoin the meeting with the employee and their union representative and inform the employee of the decision. A written summary of the decision to terminate the individual’s employment is provided to the employee and a copy of the letter is placed in the employee’s HRM file.

Restrictions on possible discipline are as follows: •

Employers cannot impose monetary fines unless the collective agreement provides for them.

However, a fine should be distinguished from an order to compensate the employer for damages resulting from the employee’s actions.

•

Employers cannot penalize employees by reducing or eliminating their seniority.

•

Employers cannot impose discipline twice on the same incident of misconduct. For example, the employer could not impose a one-day suspension and then later decide that the penalty was not severe enough and impose a three-day suspension. The employer can suspend an employee while an investigation is being conducted; however, it should be made clear that the matter is still under investigation and a final decision on discipline is forthcoming. In such cases the suspension would be with pay during the investigation period.

Procedural Matters STATING THE GROUNDS FOR DISCIPLINE Arbitrators generally require employers to justify the discipline on the basis of the grounds stated at the time the discipline was imposed.

They cannot add to the grounds or reasons for discipline after it has been imposed if the additional misconduct relates to behaviour the employer knew about or could have easily discovered. For example, if an employee was discharged for assaulting a co-worker, the employer could not try to substantiate the discharge at the arbitration hearing by arguing that the employee was also guilty of theft, unless the employer could not have known about the theft at the time of the termination. This is a point on which the union and non-union workplaces are different. If a non-union employer dismisses an employee and is defending against a wrongful dismissal action claiming there was just cause, it is allowed to refer to misconduct that came to the employer’s attention after the dismissal without any problem relating to whether the employer should have previously known about and referred to the misconduct. In the above example of employee theft, even if the employer did not know about the theft at the time of the .

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dismissal, it may use the theft as a defense in a subsequent wrongful dismissal action brought by the employee.

Because unionized employers may encounter difficulties when they refer to misconduct not raised at the time of the dismissal, they should carefully investigate before imposing discipline. If the employer discovers additional misconduct after the termination, it should immediately advise the union of the additional grounds that it will be relying upon. In one case, a teacher was terminated on the basis of attendance and performance issues. After the termination, the employer discovered that the teacher had apparently downloaded pornographic material to the school’s computer system. Although the union objected to the introduction of the evidence relating to the misuse of the computer system, because it was not referred to at the time of the discharge, the arbitrator held that it could be referred to because the employer could not have known about it previously, and the union had been immediately advised by the employer about the additional grounds for termination.

V. Issues and Outcomes at Arbitration Employee discipline against one or more bargaining unit members may trigger a grievance response by the union.

PROCEDURAL REQUIREMENTS IN THE AGREEMENT Discipline imposed by the employer can be reversed because the procedural requirements of the collective agreement have not been complied with. Arbitrators have ordered discipline to be reversed in cases where employers have not complied with provisions requiring union representation at disciplinary meetings, written reasons for discipline and time limits for imposing discipline.

FACTUAL MATTERS The employer has the onus of proving that there was misconduct by the employee. If it is alleged that the employee has abused the employer’s e-mail system or damaged employer property, the employer must establish this misconduct through witnesses and documentary evidence. If the employer fails to establish the misconduct, the grievance will be upheld and the discipline reversed. In either of these instances an arbitrator can order reinstatement—if necessary, payment of any earnings lost because of a suspension, and the removal of any warnings or related material from the employee’s record. Accordingly, employers should carefully investigate before proceeding with discipline.

Some employers have attempted to use surreptitious or secret videotape evidence to show that an employee is guilty of misconduct, such as making a false injury claim. This involves making a video of the employee away from the workplace without the employee’s knowledge.

There is no consensus among arbitrators across Canada on the issue of whether such evidence will be admitted. Some arbitrators have applied a relevancy test and admitted video evidence on the basis that it is relevant to the issue at hand. However, many arbitrators are now applying a reasonableness test to protect the privacy rights of employees; if the employer does not meet the requirements of the test, the video evidence will not be admitted. The reasonableness test requires the employer to show that (1) it was reasonable for the employer to have engaged in video surveillance and (2) the surveillance was conducted in a reasonable fashion. To meet the requirements of the test, the employer will have to show that it considered less intrusive steps to .

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determine if the employee was guilty of misconduct. Below explains how the reasonableness test could lead to a video being excluded. This is an evolving area, and employers may wish to consult with legal counsel in their jurisdiction before proceeding with making videos of employees.

Is Surreptitious Video Admissible as Evidence?

An individual employed as a security guard at a mental health institution was off work with pay while the employer investigated a complaint against him. A co-worker advised the employer that she thought the employee was working for another employer while they were on the paid suspension. The employer hired an investigator to determine if the employee was working elsewhere. In the meantime, the employee was transferred to the job of dietary technician as part of an accommodation. The employee claimed that this accommodation was not sufficient because they had an aversion to water and the dietary technician job involved washing dishes and other cleaning. The investigator made a video of the employee in their driveway washing their car and watering a tree. In a subsequent interview with the employer, the employee denied that they were able to wash a car. The employer dismissed the employee on the basis of the video evidence and the interview.

A grievance was filed, and at the arbitration hearing the employer attempted to introduce the video as evidence. The union objected to the admissibility of the video, and the arbitrator ruled that the evidence was inadmissible. The arbitrator held that the employer did not have a reasonable basis for undertaking the surveillance of the employee to begin with. The employer did not have a policy against moonlighting, and the employee had not been told that they could not work while they were away. There was no evidence that the employee had been called to work and had declined. Because the employer did not have reasonable grounds to engage in the surveillance of the employee, the video was not admissible.

Appropriateness of the Penalty Imposed The right of an arbitrator to reduce a disciplinary penalty imposed by management on a unionized employee is now recognized in statute in most jurisdictions in Canada.xii Below lists the factors that arbitrators have considered when determining whether to uphold or reduce a penalty. In any particular case, one or more of the factors listed may be referred to. The seriousness of the misconduct is an important factor. If an employee is merely guilty of swearing at a supervisor, the penalty of discharge would likely be deemed too severe. However, if the employee struck the supervisor, a discharge would be more likely to be upheld. If the employee has a long record of service without any previous discipline issues, or was provoked by management or another employee, it is more likely the penalty would be reduced. The penalty may be reduced in cases where the offence was part of a sudden emotional outburst as opposed to being premeditated. Arbitrators have reduced the penalty in cases where it would impose a special economic hardship; for example, where the discharged employee would have special difficulty finding another job.

Employers should ensure that rules guiding employee conduct or workplace expectations are consistently enforced, because failing to do so may lead to a penalty being reduced or reversed. .

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If the employer has established rules relating to parking, but the rules have not been enforced, an arbitrator would not uphold a suspension.

Discipline and termination arbitration cases are decided on a case-by-case basis. Because there are so many different factors that might affect the outcome and possibly lead to a penalty being reduced, there may be different outcomes in cases that look similar. For example, in cases where employees have been found guilty of using an employer credit card to purchase gasoline for personal use, there have been different outcomes. In one case, a long-term employee with a clean work record confessed to the theft and made an offer of restitution. It was established that the employee had experienced family problems causing stress. The arbitrator ordered that a 13-month suspension be substituted for termination of employment. In another case, a long-term employee with a clean record confessed to police of a theft, but subsequently in the employer’s investigation claimed that they had the right to take the gasoline. The discharge was upheld.

The following question in such situations may arise, “Does an arbitrator have to order reinstatement when it is found that the misconduct is not severe enough to merit dismissal?” The answer to this question is no. In a few exceptional cases, where employees have not shown a willingness to change their behaviour, arbitrators have awarded compensation instead of reinstatement. When dealing with a problem employee, the employer may wish to pursue a settlement with the union that avoids reinstatement, perhaps by offering a lump sum payment to the employee to voluntarily resign. If the union and the employee insist upon reinstatement, the employer may wish to get legal advice about the possibility of convincing an arbitrator to award compensation instead of reinstatement.

VI.

Last Chance Agreements

A last chance agreement (LCA) is an agreement between the employer, the union and an employee guilty of misconduct that the employee will be retained or reinstated subject to certain conditions being met, such as maintaining a certain level of attendance or obtaining help for a substance abuse problem. The agreement further provides that if the employee fails to meet the conditions, they will be terminated and will not have the right to have the dismissal referred to arbitration, except to determine whether the agreement has been breached. If an employee has a poor attendance record, and discipline including warnings and suspensions has not remedied the problem, an LCA might be entered into. In this situation, the agreement could provide that if the employee does not maintain a specified attendance level in the future, they will be dismissed.

The agreement would further provide that the only point that might be arbitrated is the determination of the attendance level to establish if the agreement had been breached.

An LCA is potentially advantageous to all parties involved. The employee avoids immediate dismissal, and the possibility of discharge may motivate the individual to rehabilitate. The union avoids the trouble and cost of an arbitration hearing. The employer retains an employee who might be valuable if rehabilitated and similarly avoids the cost and uncertainty of an arbitration hearing. There are potential human rights problems with LCAs, discussed below.

An arbitrator may make an order similar to an LCA with or without a request from one of the parties. The arbitrator has the authority to order an employee to be reinstated subject to certain .

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conditions, such as maintaining a certain level of attendance or obtaining medical treatment. If the employee failed to meet the conditions, he or she would be discharged.

VII.

Non-Disciplinary Measures for Innocent Absenteeism

Culpable versus Innocent Absenteeism A distinction must be drawn between culpable and non-culpable or innocent absenteeism.

Culpable absenteeism is absenteeism in which the employee is at fault or there is blameworthy conduct. Skipping work to attend a baseball game or repeated absences on scheduled work days prior to or following a long weekend are examples of such misconduct. Innocent absenteeism is caused by factors beyond the employee’s control, such as absences caused by sickness or injury.

This distinction is important because employers cannot impose discipline for innocent absenteeism. Employers should ensure that any attendance management programs or policies distinguish between these two forms of absence from work. Although the law does not allow the employer to discipline employees for innocent absenteeism, it is still possible for the employer to act to deal with this issue.

Non-disciplinary Discharge Employers may terminate employees for innocent absenteeism where: (1) the employee’s past absence has been significantly greater than the bargaining unit average; (2) there is no reasonable likelihood of attendance improving in the future; and (3) the employer has accommodated the employee to the point of undue hardship. In one case, an employee had an absenteeism record 10 times worse than the bargaining unit average, largely due to injuries incurred while playing football. The arbitrator ruled that the employer acted improperly when it dismissed him because it had not taken into consideration the fact that they had undertaken to give up playing football, and it was likely that his attendance would improve.

The employer has an obligation to notify the employee of the standard of attendance required and the consequences of failing to meet it. Where the absence is caused by a disability, the employer cannot discharge the employee if they can be accommodated without undue hardship.

For example, if the employee could be moved to an alternative position that was within their KSAs, the employee could not be discharged. A joint employer–union committee dealing with return-to-work situations is a helpful way to explore options for employees in such situations.

An employee cannot be discharged for innocent absenteeism if the discharge would prevent the employee from receiving benefits payable under the agreement for disability. If the disability payments provided for in the agreement require individuals to be employees to be eligible for payments, the employee cannot be discharged until the disability coverage has lapsed. If the disability benefits vest so that employee status is not required for the continued payment of benefits, the employee may be discharged. Disability payments, which provide employees with income when they are unable to work, must be distinguished from health benefits such as eye and dental protection. A contract provision for health benefits does not prevent a discharge for innocent absenteeism.

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Responses Other Than Discharge There might be circumstances in which a response to innocent absenteeism other than termination would be appropriate. An employer might deal with this employee issue by using alternative measures including transfers, medical leaves, flexible scheduling or demotion subject to any provisions in the collective agreement paying particular attention to employees with disabilities not being subject to these absenteeism measures. If an employee has KSAs and training for a particular department, and their absence imposes an undue hardship for the employer, it would be possible to transfer or demote the employee to another area.

VIII. Duty of Fair Representation Nature of the Union’s Duty of Fair Representation Labour relations legislation in most jurisdictions provides that the union has a duty of fair representation—that is, a duty to act fairly in the course of representing employees in the bargaining unit. The Canada Labour Code provides that “the trade union . . . shall not act in a manner that is arbitrary, discriminatory or in bad faith in the representation of any of the employees in the unit with respect to their rights under the collective agreement. . . .”

This duty applies to the administration of the agreement and in some jurisdictions, also applies to the negotiation of the collective agreement. In one case, a group of federally regulated employees filed a complaint that a union had failed to negotiate a wage increase for them. The complaint was dismissed because, at the time, the duty of fair representation did not apply to contract negotiation in the federal jurisdiction. The Canada Industrial Relations Board now interprets the Code so that the duty applies to contract negotiations, and a complaint relating to a union’s conduct during negotiation could be made.

In the jurisdictions in which the duty of fair representation includes the negotiation of the contract, the union does not necessarily have to follow the instructions of employees. In one case, the union negotiated a provision for a pension plan despite the fact that employees indicated they did not want the plan. The employees subsequently filed a complaint that the union had breached its duty of fair representation. The Labour Relations Board held that the union is not limited to following instructions of employees who are presently in the bargaining unit. The union was allowed to pursue the plan because it had reasonably considered the employees’ wishes and determined that the plan would be in the long-run interest of the bargaining unit.

The duty applies to all members of the bargaining unit, whether or not they are union members. It has been held that unintentional errors are not a violation of the duty. However, some cases have held that gross negligence is a violation. The duty could become an issue regarding the filing of grievances and referral of grievances to arbitration. Generally, the union has ownership of the grievance and arbitration process, and it is not a violation of the duty to refuse to refer a dispute to arbitration if the union acts fairly. If the union listens to an employee’s complaint and considers the matter and fairly determines that it would not be of any value to proceed, it is not a breach of the duty if a grievance is not processed or referred to .

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arbitration. In the jurisdictions without a duty of fair representation provided in labour relations legislation, there may be an implied duty at common law and legislation may prohibit specific union practices.

IX.

Review Questions

1. Explain why an employer may not be able to implement a measure relying on the management rights article in a collective agreement.

The employer could be prevented from relying on the management rights article and enforcing the agreement because of any of the following: 1) Specific provisions of the collective agreement. An article in the agreement will govern the situation if it is more specific than the management rights article. An additional example is as follows. If the agreement provides that there are certain hours of operation, the management rights article could not be relied upon to change the hours.

2) Legal rules. Any action taken by the employer must be legal. For example, the employer could not rely on the management rights article to establish rules that discriminated between male and female employees.

3) Estoppel. If the employer has led the union to believe that a term of the collective agreement will not be enforced it will not be able to later insist upon the term of the agreement being applied.

4) Rule requirements established in the KVP Co. Ltd. case. If the employer is relying on the management rights article to establish rules it will find that its rule-making authority is subject to the requirements listed in Figure 10-1. In particular, the rule will have to be reasonable.

2. An employer wishes to establish rules for the workplace. Explain the criteria that would have to be met to ensure that the rules established are enforceable.

To ensure that any rules established are enforceable the employer will have to meet the requirements established in the KVP Co. Ltd. case.

3.

What are the key points that an employer should be aware of in connection with a job posting?

The requirements in the posting must be reasonable for the job, and the selection decision must be made on the basis of the criteria posted.

4. What are the primary functions of the grievance process?

The primary functions of the grievance process are to provide a mechanism to resolve disputes arising from the collective agreement, and a procedure to ensure compliance with the agreement.

An example of a dispute arising from the collective agreement, which is expanded upon later in .

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this chapter, is the discipline or discharge of an employee. If the employer dismisses an employee claiming there was just cause, it is possible that the union does not agree with the employer's interpretation of just cause. The grievance procedure will be used to resolve this dispute. The assignment of overtime to employees is an illustration of the grievance process being used to enforce the agreement. If the employer did not distribute overtime correctly the employees entitled to the overtime could file a grievance to enforce the agreement and obtain a remedy. The grievance process could also provide a forum for additional bargaining during the term of the agreement. The example provided in the text on this point referred to an agreement that contained a workload formula for teachers. A grievance relating to the formula could lead to the parties reaching an agreement that clarified or added to the formula.

5. Distinguish between rights and interest arbitration.

Rights arbitration and interest arbitration both involve the parties presenting evidence and arguments to a neutral party, who renders a final binding decision. Rights arbitration may also be referred to as grievance arbitration because it is the final step taken if a grievance is not settled or withdrawn. An illustration of a matter that could be the subject of rights arbitration is the dismissal of an employee. At the hearing the arbitrator or arbitration board will determine if there was any misconduct, and if the penalty imposed by the employer should be reduced.

Interest arbitration refers to the settlement of a contract dispute, usually in the public sector. If the parties are not able to negotiate an agreement they could agree to or be required to refer the dispute to arbitration. Interest arbitration involves both the union and the employer presenting evidence regarding the content of the collective agreement, including similar agreements.

Interest arbitration is referred to in Chapter 11 dealing with the public sector.

6. Explain the possible benefits of the grievance and arbitration process to the employer, unions, and employees.

The possible benefits of the grievance and arbitration process to all three parties are referred to in Figure 10-3.

7. What is the meaning and significance of the burden of proof in arbitration?

The burden of proof refers to the question of which party has the onus of proving the issue in dispute. One way to illustrate the significance of the burden of proof is to consider a case where the evidence presented to the arbitrator could be viewed as a tie. That is, there is credible evidence supporting the position of both sides. In this setting, the party with the burden of proof will lose. In a dispute relating to seniority involving skill and ability the union bears the burden of proof and in this situation the grievance would be dismissed. In a grievance dealing with discipline and discharge the employer bears the burden of proof and the employer would be unsuccessful.

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8. At an arbitration hearing either of the parties can make arguments “in the alternative.”

Explain what this means and give an example of a union argument that illustrates this concept.

Making an argument in the alternative means that a party at an arbitration hearing is allowed to put forward one argument or position, and also put forward a second position or alternative for the arbitrator to consider if the arbitrator does not accept the first position or argument. At a discipline or discharge arbitration the union could put forward the primary argument that the employee was not guilty of any misconduct and put forward the alternative position that if the arbitrator finds the employee was guilty of misconduct the penalty imposed by the employer should be reduced.

9. Explain the meaning of the terms arbitrable and inarbitrable. Provide an example for each.

These terms refer to the issue of whether the arbitrator has the authority to hear and decide the dispute. A grievance is arbitrable if the arbitrator has the authority to hear it, and it is inarbitrable if the arbitrator does not have the authority to hear it. An example of an arbitrable dispute would be a grievance relating to discipline when the union has complied with the time limits provided in the grievance process in the agreement. An example of an inarbitrable dispute would be a grievance relating to discipline where the union failed to comply with a mandatory time limit and the arbitrator determines it would not be fair to extend the time limit. A dispute could also be inarbitrable if it does not relate to an issue in the collective agreement. For example, if the union filed a grievance alleging that the employer promoted the wrong person to a position outside of the bargaining unit this would be inarbitrable because it is not covered by the collective agreement.

10. Explain why an employer may or may not wish to resolve a dispute using grievance mediation.

Grievance mediation has several advantages for the employer: • it is faster and less expensive than arbitration • it protects the relationship with the union • there is the potential to develop better and more creative solutions, in contrast to the win-lose results of arbitration.

11. An employee with a poor disciplinary record who was caught stealing the employer’s property has been terminated. The union has filed a grievance. Does the union have to take the grievance to arbitration?

The purpose of this question is to illustrate the ownership of the grievance and the union's duty of fair representation. In most cases the union has the ownership or control over the grievance and arbitration process, which means that it is the union that decides whether the grievance is referred to arbitration. This is subject to a duty of fair representation that is provided for in most jurisdictions. The union does not have to take the grievance to arbitration as long as it fairly considers the chances of success at a hearing. .

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12. Explain the meaning of a last chance agreement.

A last chance agreement provides that an employee guilty of misconduct will be retained or reinstated subject to certain conditions being met. The conditions could specify maintaining a certain level of attendance or obtaining help for a substance abuse problem.

13. What are the advantages of a last chance agreement to employers, unions, and employees?

A last chance agreement has advantages for all parties: • employees avoid dismissal • employees may be motivated to rehabilitate • employers may retain a potentially valuable employee • the costs and uncertainty of an arbitration are avoided 14. When can an employer discharge an employee for innocent absenteeism?

An employer can dismiss an employee for innocent absenteeism if three conditions are met: the absence has been significantly greater than the bargaining unit average, there is no likelihood of attendance improving in the future, and the employee cannot be accommodated without undue hardship.

15. What is the union's duty of fair representation and explain how the employer could be affected by this obligation?

The union’s duty of fair representation means that the union must act fairly without discrimination in the course of acting for employees. An employer could be affected by this obligation if the union failed to process a grievance. One of the remedies that a labour relations board can grant is an order directing the grievance to proceed.

X. Discussion Questions 1. A collective agreement between a hospital and the union contained the following: • •

•

a management rights article a provision regarding contracting out that provided: “12.01. The Hospital shall not contract out any work usually performed by members of the bargaining unit if, as a result of such contracting out, a layoff of any employees other than casual part-time employees results from such contracting out” a technological change article that provided for notice to the union for technological change plus notice to employees who might be laid off

The hospital proposed adoption of a new food preparation system that would involve food being assembled elsewhere by an outside company. The final preparation would be done at the hospital using new equipment that would be installed. The system was similar to one used in the airline .

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industry and involved a $5.5 million investment. If the new system was adopted some hospital employees including cooks would be laid off. (a) Assume you are a union official. On what basis might the union challenge this? (b) Assume you were an employer representative. On what basis might the employer defend the plan? (c) If you were an arbitrator dealing with this situation, what would your decision be? a) The union could file a grievance alleging that the change would be a violation of the contracting out article. b) The employer would claim that it had the authority to make the changes relying on the management rights and technological change articles. c) An arbitrator in a case similar to this problem held that the plan violated the contracting out provisions of the collective agreement. This situation deals with contracting out because another firm would do work that was now being done by employees. The employer cannot rely on a general management rights article when there is another specific contract term covering the situation.

2. The collective agreement for a fire department provided that promotions would be based on KSAs and that, where applicants were equal, seniority would govern. The employer posted the job of lieutenant, indicating that applicants would be evaluated on their KSAs. The employer used written tests and a selection interview to determine qualifications. To assess dependability the employer relied solely on the interview, and the applicants were asked questions such as “What does dependability mean to you?”

The employer scored the results of the interviews and tests and insisted that applicants would have to have scores that were absolutely equal before seniority would be considered. (a)On what basis, if any, can the union file a grievance? (b) What outcome do you expect at an arbitration hearing? Explain. a) The union can file a grievance claiming that the process was unfair because it relied on general subjective interview questions and that equality in the agreement does not mean that scores must be equal to two decimal places. b) In the arbitration decision that this problem is based upon the arbitrator upheld the grievance and ordered the employer to repeat the job competition. The arbitrator noted that the employer should not rely exclusively on interviews to determine dependability; reference should also be made to past performance. The arbitrator also did not accept the employer's argument that the reference to equality in the agreement allowed it to score the results to two decimal places. This problem illustrates that employers cannot rely exclusively on interviews, and interview questions should more objective. See Re Halifax, 19 LAC (4th) 392.

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3. A collective agreement provided that seniority would govern for promotion decisions if KSAs were relatively equal. The employer posted a job for a hospital porter and evaluated the applicants on the basis of an interview, written test and past performance.

The results were scored. The second and third applicants were within 5 percent and 10.8 percent of the highest-scoring candidate. The job was given to the highest-scoring applicant. On what basis, if any, can a grievance be filed? What outcome do you expect?

The purpose of this question is to draw attention to and explore the meaning of relatively equal.

A grievance would claim that the employer violated the collective agreement because the second and third scoring candidates were relatively equal in ability to the successful candidate. The issue here is what does "relatively equal" mean, or how much of a difference can there be between two candidates and they can still be considered relatively equal? In the decision this problem is based on the arbitrator held that both the second and third place candidates were relatively equal to the successful candidate. The employer here had a policy that treated candidates within 10 percent of each other as relatively equal. See Re Religious Hospitallers of St. Joseph of Hotel Dieu (Kingston) and O.P.S.E.U Local 465, 43 LAC (4th) 156.

4.Comment on the following statement: “Merit does not matter in a unionized workplace because of the seniority principle”: This statement exaggerates the effects of seniority. Straight seniority or seniority as the only factor determining promotions is not common. Most agreements refer to ability as an additional factor in promotions. This question should take students to a discussion of sufficient ability and relative ability provisions in an agreement. A sufficient ability provision provides that the person with the most seniority will be awarded a job if they have enough ability to do the work - it does not matter that someone else has more ability. A relative ability term provides that seniority is only referred to if two employees have equal ability. With a relative ability term, ability is the primary factor and seniority may not even be referred to.

5. Do you agree with the decision of an arbitrator refusing to admit a surreptitiously or secretly recorded video as evidence? Under what circumstances would you allow this type of evidence to be used?

The issue of surreptitious videotape is also dealt with in the Decorative Concrete Products case incident at the end of the chapter. Students will have different opinions on this issue. Some may have difficulty understanding why a videotape that shows an employee is dishonest cannot be referred to because the employer did not have a valid reason to pursue the surveillance 6. A collective agreement contains a grievance procedure providing that if a grievance is not resolved at Step 1 the union has five days to refer the matter to Step 2. If the union fails to refer the dispute to Step 2 until a month after the Step 1 response is received, what should the employer do?

This question illustrates the concept of waiver in the grievance process. If the employer proceeds in the grievance procedure without objecting to the failure of the union to meet the time limit it may be deemed to have waived the breach of the agreement by the union. The employer should confirm in writing that although it is proceeding in the grievance process, it still reserves the right to assert that the grievance is inarbitrable because of the missed time limit. .

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7. A collective agreement included the following articles: (a) “If the Union fails to submit a grievance at each level in the grievance procedure within the time limits stipulated in this article, the grievance shall be deemed abandoned.

Similarly, if the Corporation fails to reply to a grievance in writing within the time limits stipulated in this article, the grievance may be referred to the next level of the grievance procedure, including arbitration.” (b) “After exhausting the provisions of the grievance procedure, either of the parties may notify the other party in writing within thirty (30) days of the final level reply of its intention to submit a grievance to arbitration.”

The employer discharged an employee and a grievance was filed on his behalf by the union. The grievance went through the steps in the grievance procedure and the union received the reply from the employer at the last step in the procedure, denying the grievance, on July 9. The union referred the matter to arbitration on September 20. Subsequently the parties agreed to an arbitration date of July 5 in the next year. One week before the hearing, the lawyer for the employer advised the lawyer for the union that an objection would be made to the arbitrator’s jurisdiction. What is the basis of the employer’s objection, and will the arbitrator allow the arbitration to proceed?

The employer could argue that the time limit in the collective agreement was mandatory and the grievance was inarbitrable. However, an arbitrator would allow the matter to proceed because the employer has waived the failure to submit the grievance to arbitration within the time provided in the agreement.

8. A collective agreement provided that when a disciplinary interview was held a union steward would be present (hereafter referred to as Article 6). An employee left work on a Friday afternoon prior to the end of his shift. The employee’s position was that he had permission to leave. The employer’s position was that the employee did not have permission to leave early. On the day of the incident a manager called the employee at home and talked with him. In the course of the telephone conversation the employee was advised he would be suspended for one week. The employee asked that the suspension be reduced and it was agreed that there would be a meeting to review the matter on Monday. On Monday there was a meeting at which a union steward was present; however, there was no change in the suspension. A grievance was filed that stated there was an “unjust suspension” and did not refer to Article 6. (a) What argument will the union make at the arbitration hearing? (b) If you were the arbitrator, what would your decision be? (c) If the grievance is allowed, what remedy should be ordered?

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a) The union will argue that the phone conversation was a disciplinary interview that was held without a union steward being present in contravention of the agreement. Accordingly the suspension is void and the griever should be compensated. b)

An arbitrator in this situation has held that the suspension was a violation of the agreement and allowed the grievance. See Re CHEP Inc., 60 LAC (4th) 380.

The remedy ordered would be the removal of this item from the employee's file and compensation for the time lost.10. After an employee left work without permission, a supervisor imposed a two-day suspension after consulting with the HRM labour relations specialist. One week later, a more senior manager reviewed the situation and found that the employee had previously been suspended for two days for the same misconduct and that the problem of employees leaving work early was increasing. The senior manager ordered that the suspension be increased to one week. Can the union challenge this?

Yes, the union can challenge this. The employer can only impose discipline once for misconduct.

An arbitrator would order that the increase in the suspension was void and the employee would be compensated for the additional time lost.

9. Is there a problem if an employer negotiates a last chance agreement that contains conditions that the employee will not likely be able to meet? Explain.

Yes, there is a problem. An arbitrator may not enforce an agreement that contains conditions that are excessively stringent if less onerous conditions would not impose an undue hardship on the employer.

10. An employee was guilty of misconduct, including threatening a supervisor. They were terminated and a grievance was filed. During the grievance procedure it became apparent that the employee had an alcohol addiction. The grievance was settled pursuant to an agreement that provided the grievor would be on probation for a year and seek treatment.

The agreement also provided that if the employee was absent from work without a reason acceptable to the organization they would be terminated without recourse to the grievance and arbitration procedure. Four months after the grievor was reinstated, there was another absence for two days. The employer terminated the employee. (a) Can a union and the employer agree that the grievance and arbitration procedure will not be used? (b) Is there any problem with this agreement? That is, is there any way the union can avoid the termination? a) Yes, the employer and the union can enter into this type of agreement. This illustrates a last chance agreement. b) Last chance agreements are generally valid and enforceable; however, this particular agreement is void because it imposed a discriminatory condition. Note that a condition was .

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placed upon the griever because of his handicap, imposing a review process upon him that was not placed on other employees. In the case this problem is based upon the arbitrator ordered the griever’s reinstatement. See Re Fantom Technologies, 70 LAC (4th) 241.

XI. Web Research Sufficient ability implies that employees who meet the minimum knowledge, skills, and abilities to perform the job will be considered. When used with a seniority provision, implies that the employee with the sufficient ability and the most seniority will be the successful applicant.

Relative ability implies only the employee with the highest knowledge, skills, and abilities will be a successful applicant for a position.

Mediation may be less costly and allows the parties to jointly resolve their differences. The Mediator does not have the formal authority to rule on the unresolved issues.

Students will have a variety of responses to what they learned about how union representatives handle a grievance.

XII. Vignette Management Rights In every collective agreement, management has the right to manage the workplace and therefore employees. Specifically, these management rights include the right to determine what work will be done, when it will be done, and which employees will perform the work. These rights therefore run counter to the frequent comment that unionized employees are not able to complete work if it is outside of their job descriptions.

Managers and employers also have the authority to transfer employees’ tasks and responsibilities. Managers can also assign tasks and responsibilities from bargaining units that have been laid off or reduced. However, in this more complicated situation, such as occurred with some employers during the COVID-19 pandemic, there are factors managers and employers must consider when doing so.

The manager must first review the collective agreement language, paying particular attention to any protection of bargaining unit clauses. This will help assess any limits on an ability to transfer duties or the consequences of these transfers of work. The next consideration in the instance of assigning work across bargaining units, is the manager must have a sound business rationale for the redistribution of employees and their work. Also, redistribution of tasks and responsibilities cannot eliminate jobs of the bargaining unit. Finally, the redistributed tasks and responsibilities cannot assume a substantial portion of the tasks and responsibilities of employees of the bargaining unit.

Source: https://www.mross.com/what-we-think/article/transferring-work-and-duties-of-union-workers .

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https://www.oakbridges.ca/what-are-managementrights#:~:text=Management%20has%20the%20right%20to,to%20anyone%20other%20than%20 management XIII. Case Incident: Bentley School Board The purpose of this case is to illustrate how job requirements in a posting must be reasonable, the application of a sufficient ability clause, and how the employer's selection process can be affected by a collective agreement.

Questions 1. On what basis can Jorge file a grievance?

Jorge could file a grievance claiming that the qualifications established by the employer in the job posting were unreasonably high. Jorge could also claim that because he was capable of filling the position and had more seniority, the employer violated the collective agreement when it awarded the job to Li. 2. On what basis can the union file a grievance?

The union could file a grievance alleging that the employer had established job requirements that were unreasonable and might also claim that the employer had tailored the job requirements to suit a person the employer favoured for the job.

3. If Jorge and the union file grievances, what outcome do you expect at an arbitration hearing? Explain.

Possible Union Arguments

Possible Employer Arguments

The actual work involved in this job is simple The employer has the right to establish job labour. qualifications.

The qualifications established by the employer The employer wants to hire the best possible or were too high for the position. people. The employer wants to establish In particular the requirement for two years qualifications for jobs so that jobholders will be experience is unreasonable. The description of able to move to higher job classifications. the work by the foreman confirms that it can be learned within a few days.

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The employer is attempting to change a sufficient ability provision in the collective agreement to a term based on merit or relative ability. The collective agreement provides that the candidate must be capable, and does not require that the candidate be the most qualified.

Because there were only two applicants for the If it is found that the job posting is unreasonable job, and Jorge is capable and has the most the job should be reposted. seniority, the job should be awarded to Jorge.

This incident is based upon the situation in Re Board of Trustees, Delta School District and Canadian Union of Public Employees, Local 1091, 46 LAC (4th) 216. The arbitrator found that the qualifications set by the employer were unreasonable and ordered the employer to redraft the job qualifications and post the job again. Franks was not awarded the job because if the job requirements had been properly stated another employee might have applied.

This case illustrates the following: 1) employers can establish job qualifications, however, the qualifications must be reasonable requirements for the job, 2) an employer can only specify qualifications relating to the job being filled, 3) a sufficient ability clause means that the employer may not be able to select the most qualified or proficient employee.

i

Re Grey Bruce, 35 L.A.C. (4th) 136.

ii

Re CN/CP Telecommunications and Canadian Telecommunication Union, 4 L.A.C. (3rd) 205.

Agreement between MAPLE LEAF CONSUMER FOODS INC. St. Marys and THE UNITED FOOD AND COMMERCIAL WORKERS CANADA, Local 175. Expires: January 31, 2020, pp. 13–14, https://www.sdc.gov.on.ca/sites/mol/drs/ca/Manufacturing%20%20Consumables/311-3687020%20(103-0016).pdf, accessed May 30, 2018.

iii

iv

Re Metroland, 4 L.A.C. (4th) 307.

Donald J. Carter, Canadian Labour Law at the Millennium: The Growing Influence of Human Rights Requirements (Kingston, ON: Industrial Relations Centre, Queens University, 2000).

v

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Richard B. Freeman and James L. Medoff, What Do Unions Do? (New York: Basic Books, 1984).

vi

Marguerite Jackson, “Lost Overtime Opportunities: Cash or In Kind Remedies?” Labour Arbitration Yearbook, 1996–97 (Toronto: Lancaster House), p. 347.

vii

viii

ix

Toronto Transit Commission and A.T.U., 132 L.A.C. (4th) 225.

Greater Toronto Airports Authority and P.S.A.C., Local 004, 191 L.A.C. (4th) 277.

George W. Adams, Canadian Labour Law, 2nd ed. (Aurora, ON: Canada Law Book, 2006), paragraph 4. 900.

x

Laurence Olivio and Peter McKeracher, Labour Relations: The Unionized Workplace (Toronto: Emond Montgomery Publications Limited, 2005), p. 178.

xi

Laurence Olivio and Peter McKeracher, Labour Relations: The Unionized Workplace, (Toronto: Emond Montgomery Publications Limited, 2005), p. 177.

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Chapter 11 Public Sector Labour Relations

CHAPTER 11 PUBLIC SECTOR LABOUR RELATIONS Preface In this chapter students explore the unique features of Canadian public sector unions. They will review how these unions came to be and their distinctive elements and future look forward.

Learning Objectives 11.1 Identify the size and importance of the public sector.

11.2 Outline the development of labour relations in the public sector.

11.3 Describe the distinctive features of labour relations in the public sector.

11.4 Outline recent trends in public-sector labour relations.

Outline/Table of Contents I. II. III. IV. V. VI. VII. VIII. IX. I.

The Public Sector: Size and Importance Distinctive Features of Public-Sector Labour Relations Comparing Alternative Contract Dispute Resolution Methods Recent Developments in Public-Sector Labour Relations Review Questions Discussion Questions Web Research Vignette Case Incident The Public Sector: Size and Importance

The public sector is defined here as including three components: persons working directly for local, provincial, territorial and federal governments; persons employed in various publicsector agencies or services such as health care, social service agencies or educational institutions funded by government; and persons who work for government business enterprises and Crown corporations such as the Canadian Broadcasting Corporation.

Importance of the Public Sector The public sector is important for several reasons. The number of people employed makes it an important part of the Canadian economy. It provides vital services such as health care, education, police and fire protection. Unlike the private sector, where if an employer suspends operations customers can obtain services elsewhere, many public-sector employers are the only providers of their service.

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contrast to the private sector, where only 16 percent of persons employed in the private sector belonged to a union.

Why Public-Sector Employees Were Not Allowed to Unionize There are several reasons for the delay in extending the right to unionize to the public sector. The essential nature of some of the services provided was a concern as a strike could mean an interruption of vital community services. It was also thought that governments should not be forced to give up control of the public sector, in particular, control over budgets. There was also a concern that a unionized public sector would have too much power, in view of the services provided, and this would lead to excessive increases in compensation.

Employee Associations Prior to public-sector employees being granted the right to unionize, they formed employee associations to promote their interests. These were different from unions in several respects. Because these associations were not certified by a labour relations board, they did not have the right to strike. They included members of management and did not join labour federations. The associations consulted with governments to voice employee concerns regarding compensation and working conditions; however, the employer maintained final decision-making authority. Eventually employees perceived that this process did not adequately protect their interests, and they sought the right to unionize. The associations were important, however, because they were the basis for public-sector unions that were able to develop rapidly when legislation extended collective bargaining rights to public-sector employees.

Collective Bargaining Rights Extended to the Public Sector In 1967, the federal government enacted the Public Service Staff Relations Act which is now the Public Service Labour Relations Act. This Act gave federal government employees the right to unionize. A distinctive aspect of this legislation was a provision for a choice of contract dispute resolution mechanisms. Prior to the start of each contract negotiation, the union could choose either interest arbitration or a strike as the final dispute resolution mechanism.

Subsequently, the provinces enacted legislation granting collective bargaining rights to their employees. In many jurisdictions, separate statutes covering parts of the public sector such as teachers or health workers were passed. There was a great deal of variation with respect to the right to strike in the provincial legislation. In some provinces, government and other publicsector employees were given the right to strike. In other provinces, employees were not allowed to strike, and interest arbitration was established as the contract dispute resolution mechanism.

II.

Distinctive Features of Public-Sector Labour Relations

Employers Several unique features of public-sector employers affect labour relations.

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DUAL ROLE Some public-sector employers have a dual role; they function as both an employer and a regulator of the system. Public-sector employers engage in contract negotiation and administration with unions; however, the capacity of some public-sector employers to legislate affects these processes and labour relations outcomes. Governments can pass legislation that grants or takes away the right to strike from specific public-sector employees such as teachers. Governments can also pass legislation that imposes wage restraints or freezes, affecting, for example, community college bargaining outcomes.

DIVIDED AUTHORITY In the private sector, there is one voice for management, and it is usually known where the employer stands. In the public sector, management authority is sometimes divided, meaning that it is possible that corporate authority is divided between administrators the union usually deals with and elected government officials. This may prompt union leaders to attempt to go around management and influence federal or provincial legislation. For example, in the case of a public transit system, the union may determine that it will not be able to obtain a wage increase from the transit authority’s administrators negotiating for the employer, and it may attempt to pressure politicians to intervene in contract talks.

POLITICAL BOTTOM LINE In the private sector, employers are profit-seeking organizations, and collective agreement outcomes are largely determined by economic factors.

The employer’s ability to pay and retain customers are important factors. Wage increases that go beyond this ability cannot be sustained in the long run. In the public sector, the political factor is crucial. Governments are concerned with public opinion and how it affects re-election, not profits. Strikes in the private sector are a union practice to impose losses on the employer so that it will agree to a wage increase or other key negotiating demands. In the public sector, governments do not always incur losses during a strike; they may actually save money due to not having to pay wages and benefit expenses for unionized public servants. The purpose of some public-sector strikes is really about influencing public opinion so that government will be pressured to agree to more favourable terms of employment. Some public-sector employees such as teachers and nurses attempt to frame some disputes with the employer by referring to the quality of education or patient care to maximize a favourable reaction from the public. However, it is possible that some public-sector strikes will not generate public interest or support. For example, if the clerks who process payments of water bills at city hall go on strike, it is not likely that this will generate much public concern. In contrast, if professors strike, there will likely be calls after a short time for government action to end the disruption to classes.

FINANCIAL CONSTRAINTS At one time, it was thought that the public sector was different because governments would have the authority to raise taxes when necessary to provide for wage increases granted for public-sector workers. In view of the economic and political climates in the last decade, this does not appear to be the case. The deficit spending undertaken by governments in response to the COVID-19 pandemic, governments with increased debt that will make future contract negotiations more difficult.

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unionization rates grew from75.4 percent to 77.2 percent, while private-sector rates fell from 16.4 percent to 15.3 percent over the same period. These union members serve in white collar and professional roles, have post-secondary degrees or diplomas and focus on bargaining demands that support professional development and work-life balance. They also express bargaining demands that members of the public can relate to smaller class sizes, reduced wait times for medical care and improved community safety and security.

The importance of public opinion affects the methods unions employ to build support in their communities. Public-sector unions increasingly are turning to public town hall meetings and social media campaigns to achieve their objectives.

Legislative Framework There are over 40 federal and provincial statutes across Canada regulating public-sector labour relations. Depending on the jurisdiction, there may be only two statutes or as many as seven separate labour laws affecting public-sector employees. The key point is that there is a patchwork of legislation across the country affecting those in the public sector, and groups such as teachers and nurses may or may not have the right to strike depending upon the jurisdiction.

Establishment of Bargaining Rights In the private sector, labour relations boards affirm or may alter the composition of bargaining units after receiving input from the parties. In the public sector, bargaining units may be defined in legislation. For example, In British Columbia, the Public Service Labour Relations Act governs the collective bargaining relationship between the government and the unions that act as bargaining agents on behalf of public-service employees. This legislation establishes three bargaining units in the public service: a nurses’ unit, a professional employees’ unit and a unit for all other employees.

Scope of Contract Negotiation In the private sector, the parties are allowed to negotiate all terms of employment and also the scope, meaning the number of different jobs, of the bargaining unit. In the public sector, legislation can restrict the number of issues that can be the subject of negotiations. The Public Service Labour Relations Act prohibits bargaining over pensions, promotions and technological change in the federal public sector.i. The scope of bargaining in the public sector is narrower than in the private sector and reference should be made to the relevant legislation in the particular provincial jurisdiction.

Contract Dispute Resolution If the parties are not able to negotiate an agreement in the private sector, the final dispute resolution mechanism is a strike by the union or a lockout by the employer. In the public sector, because some services provided are essential to the public’s safety and welfare, it is not always possible to allow a strike or lockout. Thus, four primary methods of dispute resolution have

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developed: an unrestricted right-to-strike model; a no-strike model that relies on interest arbitration; a designated or controlled strike model; and back-to-work legislation.

UNRESTRICTED STRIKE MODEL Parts of the public sector have been allowed to engage in unrestricted strikes in the same manner as the private sector. This model is typically applied to employees, such as municipal clerks, doing work that is not essential to public safety. Some public-sector employees have been granted the right to strike despite the fact that their work appears to be essential.

NO-STRIKE, INTEREST ARBITRATION MODEL Interest arbitration is a third-party method used to resolve a deadlock in collective bargaining between management and the union.

Both parties submit evidence to an arbitrator or an arbitration board that decides the terms of the collective agreement. The replication principle, a fundamental feature of interest arbitration, holds that an arbitration award should as much as possible reflect the agreement that the parties would have reached had they been able to do so in negotiations. This guiding principle is relevant to arbitration awards in the public sector due to the impact of such third-party decisions on governments and members of the public. In cases in which a memorandum of settlement has been recommended by a majority of the bargaining team, it has been given significant weight by the arbitrator. In one case in which the memorandum of settlement had only been supported by half of the union’s bargaining team, an arbitrator held that it should be given less weight and proceeded to award an additional increase to some employees. Accordingly, it has been recommended that the employer should attempt to ensure that a memorandum of settlement is unanimously recommended by the union bargaining team so that the chance of a higher award in subsequent interest arbitration cases is reduced if the agreement is not ratified. The employer could consider making an offer conditional upon unanimous approval of the union bargaining team.

The compensation and working conditions of employees at other workplaces, doing similar work, is a critical factor considered by arbitrators. For example, in the case of teachers, the union and the employer would present information regarding the salaries of teachers employed by other school boards. Arbitrators have also considered factors such as inflation, productivity increases and the need to maintain minimum cost-of-living standards, especially for lower-paid employees.

In response to the possibility unions achieve higher compensation through arbitration than they would be able to obtain through the strike route, governments have passed legislation requiring arbitrators to consider the ability to pay and other factors.

DESIGNATED OR CONTROLLED STRIKE MODEL In the designated or controlled strike model, employees are given the right to strike, but an agreed-upon number of bargaining unit employees must continue working to provide essential public services. If this model was applied to workers maintaining roads in the winter, some employees would have to remain on the job if there was a strike. This model is used in parts of the public sector in Canada’s federal jurisdiction, British Columbia, Manitoba, New Brunswick, Newfoundland and Labrador, Ontario, Quebec and Saskatchewan.

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board created by legislation governing the involved employees. Because the parties will have different preferences and objectives regarding who is deemed essential, an agreement may be difficult to reach. Employers prefer that as many employees as possible be designated essential so that the disruption of service is reduced; unions prefer that a smaller number of employees be designated essential so that the strike will be effective and create pressure for a settlement. The number of employees designated as essential varies extensively depending on the work done.

Under the Public Service Labour Relations Act, 2 percent of librarians and 100 percent of air traffic controllers have been designated as essential.

BACK-TO-WORK LEGISLATION Governments can also pass back-to-work legislation to end a strike and resolve a contract dispute. In most cases, such legislation provides for the dispute between the union and the employer to be resolved by interest arbitration. However, some statutes have instead set out the terms and conditions of work. Prior to the Supreme Court of Canada’s decision in the Health Services case, a government could pass legislation nullifying the terms of previously negotiated collective agreements. In 2007 the Supreme Court held that legislation that substantially interferes with the union’s collective bargaining rights violates the Charter. Accordingly, there is now a constraint on legislation that purports to invalidate existing collective agreements or impose restrictions upon contract negotiations.

III.

Comparing Alternative Contract Dispute Resolution Methods

Why don’t we simply ban all public-sector strikes and provide for interest arbitration in all cases where the parties cannot reach an agreement? Consider the possible advantages and disadvantages of unrestricted strikes, no-strike interest arbitration and designated or controlled strike and back-to-work legislation.

Interest Arbitration Interest arbitration should ensure the provision of essential services because strikes are not allowed. Although there have been situations in which employees have gone on strike even though a strike is not legal, these are exceptions. Interest arbitration means that the parties avoid spending time and energy negotiating a designated employee agreement.

However, interest arbitration reduces the likelihood that the parties will be able to negotiate their own agreement because of the chilling and narcotic effects. A bargaining impasse was more likely in the health care sector, especially among hospitals. It was also found that a centralized bargaining structure, such as used by participating members of the Ontario Hospital Association, led to higher levels of impasse. This may be due to the fact that in centralized bargaining the parties are seeking a common solution to various localized problems. Also, there is a possibility that when an arbitrator determines the outcomes, they may be less acceptable to the parties. In particular, employers may perceive that arbitration will lead to the union gaining terms it would not be able to obtain by going on strike. It is also noteworthy that strikes are not the only form of industrial conflict. There is evidence that when strikes are banned and replaced with interest arbitration, other forms of conflict such as grievances and work slowdowns increase.

Strikes The unrestricted strike model is more efficient than the designation model because the parties do not have to negotiate a designated employee agreement. It should encourage a voluntary settlement because it imposes higher costs than the other two methods. But it poses the highest risk of disruption of service to the public, and accordingly should only be used where Copyright © 2023 Pearson Canada Inc. 245

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disruption does not entail a danger to the public. Allowing clerks who process income tax returns to strike makes sense, whereas allowing firefighters to strike does not. There is also the possibility that a strike will not produce a settlement and eventually back-to-work legislation will have to be imposed. Designated Employees The designation model has the advantage of avoiding a complete loss of services. Because some costs are imposed on the parties, a voluntary settlement is encouraged. However, the parties will have to spend time and energy negotiating the designated employees. A first designated employee agreement between the parties has posed a problem in a number of cases, resulting in proceedings to the labour relations board to resolve the matter. There is also the possibility that the designation levels might be set too high or too low.

IV.

Recent Developments in Public-Sector Labour Relations

Economics In economics, the debt-to-GDP ratio is the ratio between a country’s government debt (a cumulative amount) and its gross domestic product (GDP). A low debt-to-GDP ratio indicates an economy that produces and sells goods and services sufficient to pay back debts without incurring further debt. Debt used in moderation can help stimulate economic growth while excessive government debt can lead to problems. The debt-to-GDP ratio is designed to help investors determine if a country has too much debt. High debt-to-GDP ratios are caused by an unexpected slowdown in the economy, demographic changes in the population and increases in government spending. Solutions to curb the debt-to-GDP ratio include cuts to government spending, encouragement of growth by lowering interest rates on borrowing and increasing income tax rates.

Beginning in 2020 due to the COVID-19 pandemic, many Canadian governments began to run budgetary deficits and accumulate more debt to support both Canadians and businesses negatively impacted by lock downs and closures due to the pandemic. It is important to note that while government deficits can stimulate a stagnant economy, the debt still needs to be repaid— eventually. Translating federal and provincial government debt helps us understand in a more realistic way the extent of this liability. For example, Nova Scotia has the highest combined federal-provincial debt-to GDP ratio at 106.0%. While Alberta has the lowest debt-to GDP ratio at 66.1%. Notably, Newfoundland & Labrador has the highest combined debt per person at $64,224, followed by Ontario had the second highest at $58,559 per person, with the lowest held

by British Columbia residents at $43,635 per person.

At the federal level, the Canadian federal government, provinces, and territories will need to develop comprehensive plans to manage the ongoing debt issues. After the economic impacts of the COVID-19 pandemic, the combined federal, provincial, and territorial debt is anticipated to exceed $2 trillion dollars. Both federal and provincial debt to GDP ratios have substantially increased. The Conference Board of Canada has indicated it would ideally prefer to see a federal debt-GDP ratio of around 30 percent and declining, as was the case in the mid-2000s. A lower and falling federal debt ratio creates room to add significant federal stimulus in a deep recession without concerns about managing future debt.

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Political and Social Environment In Canada, 90 percent of employers are regulated by a provincial government with the remaining 10 percent of workplaces within a federal government mandate. This is important to keep in mind when considering the relationship between a government’s ability to sustain and expand its funding commitments to public-sector employers. External factors, such as slow economic growth, the impact of international trade agreements and sanctions as well as demographic trends do affect political and societal choices that a government make regarding whether or not to apply constraints or reductions in public-sector labour costs. In light of these challenges, governments have three options.

1. Government can reduce labour costs through collective bargaining. This would involve demanding reductions in wages and benefits from the unions that governments negotiate with directly. The demands might be supported by threats of contracting out or privatization.

Where employees have the right to strike, governments will have to be willing to bear a strike. Where government is providing funding to employers, for example, in the health and education sectors, funding could be reduced so that employers would be forced to pursue reducing compensation in contract negotiations.

2. The second approach is a cooperative one in which governments approach unions with the problem, share information and attempt to resolve the issue. Unions might agree to wage concessions in return for job security provisions, or the parties might develop other options such as early retirement plans that save money.

3. The third approach involves changing compensation and working conditions unilaterally through legislation. In the past, this has been done by passing legislation that imposes restrictions on compensation, or directly imposes the terms of a new agreement.

The collective bargaining approach is slow and uncertain; and in situations where interest arbitration is the final dispute resolution mechanism, it is not guaranteed that an arbitrator would award reduced compensation. The cooperative approach is no faster or certain. Accordingly, the legislative approach is attractive to governments. However, because the Charter now protects collective bargaining, governments will have to ensure that they do not substantially interfere with that process. Unless a government is willing to rely on the Charter’s notwithstanding clause, this will impose a constraint on the use of legislation to resolve disputes. In recent years, governments have relied more on legislation or the threat of legislation than on collective bargaining or the cooperative approaches referred to above.

It is important to note that the governments that adopted the legislative approach were able to do so without political penalty. Gene Swimmer noted that although some governments that resorted to the legislative approach were not re-elected, there is little evidence that their handling of public-sector labour relations was a factor in their defeat. Swimmer concludes that publicsector labour relations have been permanently changed. He notes that employers should consider the costs associated with rejecting the traditional collective bargaining model, including lost productivity. He submits that it is in government’s self-interest to return to the collective bargaining model instead of relying on legislation. The challenges governments to think of Copyright © 2023 Pearson Canada Inc. 247

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employees as a source of value rather than a cost to be reduced. On the union side, Swimmer observes that unions will have to come to terms with the new environment. Taking a no concessions position will encourage the government to take unilateral action.

V. Review Questions 1.

In what ways is the public sector an important element of Canadian society?

The public sector is important for the following reasons: • the large number of employees involved, 24 percent of employees are in the public sector, • the provision of essential services such as health care, education, police and fire protection, • more than half of all union members are in the public sector and the sector has a high union density.

2. Why were public sector employees not provided the right to unionize at the same time as employees in the private sector in most jurisdictions?

Private sector employees were granted the right to unionize by PC 1003 in 1944 and subsequent provincial labour relations statutes. Most public sector employees did not obtain the right to unionize until after 1967. There are several reasons for this delay in granting bargaining rights to public sector employees: 1) loss of control. It was thought that governments would be giving up control of their budgets if they allowed employees to unionize.

2) fear that unions would have too much power. Because some public sector employees are involved in providing essential services it was thought that unions would have too much power.

3) fear of disruption of essential services. Because some public sector employees are involved in providing essential services it was thought that they should not be allowed to unionize because this could lead to the loss of essential services.

Labour Relations Issue 11-1 outlines the concerns of teachers being allowed to strike.

3. How are public sector employers different from private sector employers?

There are several features of public sector employers that distinguish them from private sector employers: •

Some public sector employers have the authority to pass legislation changing the bargaining process or outcomes. This is authority that private sector employers do not have. For example, governments can enact legislation that grants or takes away the right to strike. This may be viewed as the government acting as both an employer and a regulator.

•

Management authority is sometimes divided between elected officials and administrators.

This may cause problems for unions who do not know who they need to focus on.

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Public sector employers have a political rather than an economic bottom line. This refers to the fact that governments are not seeking profits but are seeking re-election. Unions in the public sector will use public relations and media efforts to achieve their objectives. They may need to inform and convince the public that the employer should grant concessions.

Similarly, employers may engage in media campaigns, including newspaper ads, to influence public opinion.

4. How are public sector employees and unions different from private sector employees and unions?

The public sector has more white collar and professional employees. The public sector also has more female employees. Public sector unions make greater use of public relations efforts.

5. Why are there restrictions on the issues that can be the subject of contract negotiations in the public sector?

Restrictions on issues that can be the subject of bargaining were established to allay concerns regarding the extension of bargaining rights to public sector employees. One of the concerns was the quality of services that are provided by the public sector. It could be argued that the quality of the services provided is so critical that it should not be left to the vagaries of negotiation. In most provinces training programs and promotions are matters that cannot be the subject of bargaining.

In some provinces the pension issue is excluded from bargaining. This could relate to a concern over the cost that could be incurred if this matter was a subject of bargaining.

6. Outline the possible advantages and disadvantages of the three main methods of contract dispute resolution in the public sector.

Table 11-1 summarizes the advantages and disadvantages of the methods of contract dispute resolution.

VI.

Discussion Questions

1. Three key methods to resolve contract disputes in the public sector are interest arbitration, a strike, and a designated strike. Consider the following employees: clerical staff at Revenue Canada, air traffic controllers and medical laboratory technicians. Which method of dispute resolution would be preferred by the union and by the employer for each of these sectors?

For clerical staff at Revenue Canada the timing of negotiations and a strike could be a critical factor. If a strike occurred during the March and April income tax return period it could be more effective because some members of the public will want to have their tax returns processed as quickly as possible so that they can obtain a refund. At other times of the year the public may be less concerned about a strike, and the strike would be a less effective weapon. The employer's preferences may also be affected by the timing of any strike. The employer may be willing to accept a strike if it does not lead to demands from the public for settlement and does not seriously affect the receipt of tax revenue. If a strike would reduce tax revenue, the employer would prefer Copyright © 2023 Pearson Canada Inc. 249

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to avoid this through interest arbitration. A union representing air traffic controllers would prefer a strike because this would place the most pressure on the employer to settle. An employer would prefer arbitration or a designated strike so that the disruption was prevented or minimized.

A teacher's union might prefer the strike to maximize pressure placed on the employer and avoid a settlement being imposed by an arbitrator. To avoid disruption and pressure from the public the employer may prefer interest arbitration. The government may think that education is so critical that it should not be disrupted by a strike.

2. Do you think that teachers should have the right to strike? Support your point of view using key concepts and discussions from this chapter.

Those opposed to teacher strikes will likely argue that education is so important that it should not be interrupted by a strike. In many jurisdictions, separate statutes covering parts of the public sector such as teachers or health workers have been passed. There is a great deal of variation with respect to the right to strike in the provincial legislation. In some provinces, government and other public sector employees have been given the right to strike. In other provinces, employees are not allowed to strike, and an alternative interest arbitration has been established as the contract dispute resolution mechanism.

3. Are there any reasons why labour relations would be more confrontational in the public sector as opposed to the private sector? Explain.

The following comments are conjecture. Is it possible that in some instances economic realities in the private sector will force the parties to collaborate to survive? In contrast, in the public sector where there is a political bottom line, there may not be the same impetus to collaborate.

VII.

Web Research

1. Issues identified by CUPE will include a variety of economic and social justice issues facing workers in the current environment.

VIII. Vignette Government Employees Leave During COVID-19 During the COVID-19 pandemic, thousands of employees needed to make work arrangements to take care of family members, accommodate children moved to online learning, and their own illness. Specifically, 135,000 Canadian federal government employees were granted paid leave during the first year-and-a-half of the pandemic to manage closed workplaces, COVID-19 quarantines, and children not in schools and daycare centres. The Treasury Board of Canada instructed employees to use accumulated leave credits before they could apply for discretionary paid leave, known as “699 leave”. The Parliamentary Budget Officer (PBO) estimates the Canadian government’s paid leave policy cost $1.27 billion between March 2020 and July 2021.

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The Public Service Alliance of Canada (PSAC), Canada’s largest public service union, grieved that Treasury Board guidance. This grievance was files as 699 leave is intended to be used when employees cannot come to work through no fault of their own. Lawyers for the Canadian government argued. “ 699 leave was intended for short-term situations, such as snowstorms, and that eligibility should be decided on a case-by-case basis”. The Federal Public Sector Labour Relations and Employment Board ruled that the federal government cannot force employees to use other forms of leave before applying for 699 leave. This was viewed as a violation of the PSAC collective agreement. Notably, the sick leave, family leave, and vacation credits used during COVID-19 before taking a 699 leave will be restored to each employee.

IX.

Case Incident: The Ferry Strike

The purpose of this incident is to illustrate the terms and operation of an essential services agreement. The situation presented is based upon VSA Highway Maintenance Ltd. v. B.C. Government and Service Employees Union http://www.canlii.org/en/bc/bclrb/doc/2007/2007canlii27558/2007canlii27558.html with some modifications. A key point this incident illustrates is that a designated or controlled strike will involve some inconvenience to the public.

1. Outline the argument that the employer will make before the Labour Relations Board.

The employer could argue that the union's proposed reduction in hours is not proportional to the reduced traffic during the school vacation period. In other words, the union is not just attempting to adjust the agreement to reflect reduced traffic; it is attempting to reduce the service level.

2. Outline a response the union could make to the employer's request for a return to normal hours of operation.

The union's response would be that an essential services agreement entails some inconvenience, and the emergency provisions of the agreement can be improved upon.

3. What powers does the British Columbia provincial minister responsible for labour Relations have in this situation?

The powers of the British Columbia provincial minister for labour relations are guided by his or her own initiative after receiving a report of the chair regarding a dispute. S/he can consider that a dispute poses a threat to the health, safety or welfare of the residents of British Columbia, the minister may direct the board to designate as essential services those facilities, productions and services that the board considers necessary or essential to prevent immediate and serious danger to the health, safety or welfare of the residents of British Columbia. When the minister makes a direction under subsection 2 the associate chair of the Mediation Division may appoint one or more mediators to assist the parties to reach an agreement on essential services designations.

The Board may decide to end the work stoppage by explaining that "... must designate the level of services that is necessary or essential to prevent immediate and serious danger to the health, safety or welfare of the residents of British Columbia" The union's application to reduce the Copyright © 2023 Pearson Canada Inc. 251

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hours of operation was dismissed because it did not correlate to the reduction in the number of school buses using the ferry. The Board noted that some inconvenience was part of the essential services model of dispute resolution as follows: "At times, there will be inconvenience and hardship to the public during a labour dispute. However, this does not amount to immediate and serious danger to the health, safety or welfare of the public... and therefore does not justify an increase in the level of ferry service." The Board said that it had some concern regarding the emergency situations and directed the parties to address that issue and communicate with the community about the process that should be followed in the event of an emergency. The Board indicated that if the issue of the operation in emergency situations could not be resolved an increase in the level of service would likely be justified.

4. Identify and explain the rationale for your preferred contract dispute (CDR) method to be applied in the future between the ferry service and its union.

Students may have different opinions on their preferred CDR. Unrestricted Strike: Since the parties have already agreed to a controlled strike, this would not be a viable option.

No Strike, Interest Arbitration. Since the parties have not reached a settlement and there has been a lengthy strike this may be a preferred option. In this option both the union and the employer have the opportunity to present their positions on the open issue. A key factor here may also be which method to use at interest arbitration, item by item or final offer.

Legislation: The government may wish to end the strike due to concerns of public safety. There have been examples where public safety has been compromised and the “Return to Work” legislation could be enacted.

Gene Swimmer, “Collective Bargaining in the Federal Public Service of Canada: The Last 20 Years,” in Public Sector Collective Bargaining in Canada, G. Swimmer and M. Thompson eds.

(Kingston, ON: IRC Press, 1995), p. 371. i

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Appendix A Cases

APPENDIX A CASES The cases in Appendix A explore the following issues: Case: Found: An Unsigned Card

Issues: Union organizing drive and unfair labour practice by employer

Are we “In The Zone”?

Preparation for bargaining and establishing a bargaining zone

Where’s the Money

Administration of collective agreement. Payment of union dues.

Goodtime Food Products Ltd.

Discipline and discharge, review of termination by arbitration

FOUND: AN UNSIGNED CARD This case illustrates the review of the certification process as well as examples of unfair labour practices by an employer.

1. What evidence is there in the case that Wesley has interfered with the rights of the employees in this case?

Wesley interfered with the rights of employees on two occasions. First, Wesley called a meeting with all employees Tara Wieznetski was in contact with and threatened a potential plan closing if a union were certified. Second, Wesley terminated Tara, who was the employee suspected organizing the union drive.

2. Looking at the legislation and labour relations board information in your province or territory, set out arguments that could be made by the union before the board against this employer for its actions against Tara Wieznetski.

Most provincial and territorial legislation provided protection of employees during the course of a union drive. In most provinces and territories, it is sufficient to show the employers actions are based on an anti union hostility to demonstrate an unfair labour practice. In this case Tara was the employee signaled out as the likely organizer of a union drive and they were the only employee terminated. These could be grounds for a success allegation of unfair union practices.

3.

What outcome do you suspect regarding the employer’s actions in this case?

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require a certification vote or certify the union without a vote.

ARE WE “IN THE ZONE”?

This case illustrates the importance of developing a bargaining zone before entering into negotiations.

1. Work out estimated bargaining zone levels (initial, target, and resistance) anticipated from union negotiators for each of these three contract items.

Students may have varying opinions. The following is presented as a guide to the instructor. The key concept would be to ensure that the bargaining zones identified provide strategic alternatives from the most desirable to the least desirable levels.

Call in pay (Initial = 5 hours, Target 4 hours, Resistance Point = no change) Seniority links to vacation entitlement (Initial = 4 weeks after 5 years, Target = 4 weeks after 3 years, Resistance Point = 3 weeks after 3 years) Cost of living (Percentage) For a three-year agreement (Initial = 3.5% per year, Target = 3% per year, Resistance Point = 2.5%, 2.75%, 3.2% respectively) 2. Work out estimated bargaining zone levels (initial, target and resistance) to be developed by the employer in this case?

Students may have varying opinions. The following is presented as a guide to the instructor. The key concept would be to ensure that the bargaining zones identified provide strategic alternatives from the most desirable to the least desirable levels.

Call in pay (Initial = no change, Target 3.5 hours, Resistance Point = 4 hours) Seniority links to vacation entitlement (Initial = no change, Target = 3 weeks after 5 years, Resistance Point = 3 weeks after 3 years) Cost of living (Percentage). For a three-year agreement (Initial = no change, Target = 2% per year, Resistance Point = 2.5%, 2.75%, 3.2% respectively) 3.

On each of these issues, how would you answer Rikki’s question, “Are we ’in the zone?’”

Student opinions will vary depending on how they configure their zones. In the example above Seniority links to Vacation and Cost of living increases share a resistance point. This makes the possibility of a strike likely.

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Appendix A Cases

WHERE’S THE MONEY This case illustrates the final stage of the labour relations process, administration of the collective agreement. In this case the employer continually has not remitted the union dues deducted from the employees to the union in accordance with the provisions of the collective agreement.

1. What is the role of a union local’s grievance committee?

The role of the union’s grievance committee is to review the unresolved grievances or complaints facing employees or the union local and determines if the case should be submitted, or remain, in the grievance procedure. The committee could also be involved in any decision to resolve the dispute.

2. What is a policy grievance and why was it used in this case?

A policy grievance is when the union complains that a management action violates the agreement.

It usually deals with contract interpretation, not an individual complaint. In this case the employer has failed to comply with the agreement due to unilateral actions on the employer’s part. An employee, or group of employees, are not directly impacted.

3. Explain why there is merit in improving the language to the check-off clause now seen in the contract.

The language of the contract needs to be improved as the employer is not honouring the current provisions. It is of interest to note that the grievance did not identify a remediation other than the dues be paid.

4. What additional HRM action might also be taken with employees not formerly within the HRM department but whose job responsibilities are linked in some way to union businesses?

The additional actions by HRM could include meeting with the accounts payable manager to gain cooperation and confirming their commitment to make the payments pursuant to the collective agreement, during next bargaining, specifically state the duties of the accounts payable department, and potentially include a financial penalty, such as interest payable, for late payment.

ONE LAST CHANGE This case illustrates the purpose and risks of last chance agreements with respect to employee discipline.

1. Explain how a last-chance agreement can meet the expectations of a human rights tribunal regarding whether or not the employer has demonstrated reasonable accommodation for an employee in Rob’s circumstances.

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Last change agreements can meet the needs of a human rights tribunal if the agreement is made in good faith, the employee is aware of all the conditions, and the employee was not coerced into signing the agreement. It is also important to note that the Last Change Agreement may not result in an automatic discharge. The employer, and the union, must demonstrate than an additional accommodation would represent an undue hardship.

2. Can you think of any other conditions in the agreement that Grace should have inserted and negotiated with the union? If so, please describe and be prepared to offer a rationale.

Additional options could include the employee would not be able to submit a grievance in this case, and that the employee agrees that the agreement is not in violation of the Human Rights Act, and that he was not coerced into signing the agreement.

GOODTIME FOOD PRODUCTS This case illustrates the review of discipline and discharge at arbitration. Students could be assigned roles of union and employer representatives and instructed to make arguments to an arbitrator.

1.

What is meant by expedited arbitration and why would it be used in this instance?

Expedited arbitration is an alternate form of arbitration that tends to be more timely way to reach a resolution. It often involves the parties submitting a joint statement of facts and then presenting their respective case for any disputed facts. It would be used in this case as an employee has been discharged. The advantage to the union and the employee is that the dispute will be resolved quickly, and the employee may return to the employer is successful. The advantage to the employer is that if they are not successful in defending their decision to terminate the employee, it will limit any financial liabilities.

2.

What arguments would be presented by the union at the arbitration hearing?

3.

What arguments would be presented by the employer at the arbitration hearing?

At an arbitration hearing dealing with discipline or discharge there are two key issues to be determined: 1) has there been any misconduct that merits discipline or discharge, and, 2) was the discipline imposed by the employer excessive, or should the penalty imposed by the employer be reduced?

In this case it is clear that there has been misconduct and the only issue is whether the discharge of the employee should be upheld. Students should refer to Key Considerations 9-1, which lists the factors arbitrators will consider when reviewing the discipline imposed by the employer.

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Employer Arguments

Appendix A Cases

Union Arguments:

Serious nature of the behaviour. The grievor The grievor was merely gesturing with the intended to harm or injure the supervisor. knife and scissors and did not intend to harm the supervisor. The supervisor must not have felt there was an intention to cause harm because they approached the grievor after the first incident with the scissors.

The fact that there were two incidents, the first with the scissors, and the second with the knife, suggests that the second incident was premeditated.

The two incidents happened so closely together that they should be viewed as one spur of the moment emotional outburst rather than premeditated action. The scissors and the knife that were involved were tools situated at the workstation that the grievor picked up in the heat of the moment, not weapons they brought from another location.

The grievor has seven years of service.

The grievor has been a capable employee with a clean record.

The supervisor was merely carrying out their job responsibilities when they went to the inspection area where the grievor was working.

The grievor was provoked. The employer did not explain why they was being moved, and the supervisor crumpled up and threw away the grievance. The supervisor went to the area where the grievor was working prior to the second incident with the knife.

The grievor has not rendered an apology.

The discharge would impose a special economic hardship on the grievor because they had limited job skills and does not speak English.

4. If you were the arbitrator, what would your decision be? Provide reasons for your decision.

Student answers could vary on this question; however, they should include references to the factors which arbitrators would consider outlined above. In an actual case similar to the one presented here, Re Galco Food Products Limited and Amalgamated Meat Cutters & Butchers Workmen Of North America, Local P-1057, 7 LAC (2nd) 350, the majority of the arbitration board ordered the grievor to be reinstated. The employer representative on the Board dissented. The majority of the Board observed that less serious misconduct has resulted in discharge in a number of cases but Copyright © 2024 Pearson Canada Inc. 241

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found that the grievor did not intend to harm the supervisor and focused on the mitigating factors in this situation. When the board considered the penalty in this particular case it noted: • • • • • •

the grievor had seven years of seniority; the grievor was a competent employee; the event was an isolated incident; the offence was not premeditated; the actions of the supervisor in the crumpling of the grievance; and the penalty of discharge would create a special economic hardship for the grievor because they did not speak English and with a discharge on their record, they would be unlikely to obtain employment.

The board ordered that the appropriate penalty was a suspension until the grievor returned to work.

The significance of this is that the employer would not owe any compensation to the grievor. The board also ordered that the reinstatement was conditional upon the grievor apologizing in writing to the supervisor when she returned to work.

It should be emphasized that discipline and discharge situations will be dealt with on a case-bycase basis. It is possible that an employee guilty of less serious misconduct could be discharged if mitigating factors were not established. To make this point even clearer, students could be advised that there are cases of minor theft where a discharge has been upheld. For example, in one case the discharge of an employee who took a muffin was upheld.

RED FALLS TRANSIT AUTHORITY This case involves a review of an employer job posting and the selection process used by the employer, including testing.

1. What arguments would the union make at the arbitration hearing?

2. What arguments would the employer make at the arbitration hearing?

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Possible Union Arguments:

Appendix A Cases

Possible Employer Arguments:

The job posting did not refer to a test and the The employer has the right to test, relying on employer does not have the right to test. the management rights provision in the collective agreement.

The test administered by the employer is not The test relied upon by the employer was related to the requirements for the job. based on a job analysis it measures job related ability.

The test was unfairly administered because The applicant who previously wrote the test one of the applicants had previously written would not have an unfair advantage because the same test. their previous test had not been reviewed with them and they did not know the same test was being used.

Given that the test used by the employer is not a valid tool, the results should not be a factor in the selection process. The grievor has skill and ability equal to the successful candidate and should be awarded the position because she has more seniority.

The successful candidate and the grievor are not equal in ability. The successful candidate has more skill and ability and accordingly seniority is not a factor.

2. As the arbitrator in this case, state whether you would uphold or dismiss this grievance.

Give your reasons to support this decision.

This case is based upon the decision in Re Oshawa Transit Commission and Canadian Auto Workers, Local 222, 110 L.A.C. (4th) 345. The arbitrator held that employers have the authority to administer tests to measure ability, provided that the tests measure requirements for the job. The arbitrator found that the test was relevant to the job requirements. However, the arbitrator held that the test was not fairly administered. The one applicant had an unfair advantage because they had previously written the same test. Although the results of the previous test were not communicated to the candidate, they would know what type of questions were asked and could prepare for the test, and other candidates would not have been able to do so. The arbitrator ordered that the matter be referred back to the employer so that the skill and ability of all of the applicants could be fairly determined. This could involve the employer administering another test.

This case illustrates the following for employers: • employers can administer tests in the selection process unless the right to do so has been restricted in the collective agreement; • tests must measure job related factors; and • tests must be fairly and ethically administered.

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3. As an HRM professional working for RFTA what changes might you make regarding selection testing for unionized job postings?

HRM professionals need to ensure that the selection testing treats all candidates equally and measured to job related or valid knowledge, skills, and abilities.

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Appendix B Grievance and Arbitration

APPENDIX B GRIEVANCE AND ARBITRATION Appendix B provides a scenario in which an employee has been dismissed. Students could be assigned the roles of union stewards, employer representatives, and arbitrators instead of answering the questions that are provided. The role play could include the grievance meetings and the employer’s response after each meeting. This scenario will allow students to work with several concepts including the following: • • • • • •

termination by an employer union representation of an employee preparation of a grievance employer response to grievance an arbitration hearing arbitral review of the penalty imposed by an employer

1. Assume that you are the HRM professional responsible for this file. Prepare a notice of termination that would be provided to Josh Bradford at the meeting.

The letter of termination would indicate that Bradford was being terminated for just cause. The grounds for the termination or just cause are the theft of organization’s tools and the breach of the organization’s policy on substance use on the organization’s property.

2. Assume that you are the HRM professional, Mohamed Mansour. What steps should been taken in the investigation of the incident involving Bradford and what additional actions should management have taken in preparing for a meeting between company representatives and Josh.

Additional investigation is required with respect to Josh’s claim that tool are not often returned to the tool storage area. A determination needs to be made if this is common practice of the employees. There is little evidence of theft in the case.

In preparing for the meeting, the union representative should have been advised of the situation and be present at the meeting. Failing to provide union representation at a discipline meeting can be fatal to the organization’s position of discharge with an arbitrator.

3. Assume that you are the Local 317 chief steward, Suresh Patel, who has just received notice that Josh has been terminated. Outline how you would proceed in light of management’s disciplinary action against Josh.

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• briefly explain the nature of an arbitration hearing and explain that the arbitrator has the authority to reinstate Josh, perhaps reducing the discipline to a suspension; • explain that Josh should begin a search for alternative employment, in case he is not reinstated and to avoid a claim that they has not mitigated their loss; and • prepare a grievance for Josh to sign, which could be as follows: Grievance: I grieve that I have been discharged contrary to the terms of the collective agreement.

Remedy sought: Reinstatement to my position with full seniority, compensation, interest, and any other appropriate remedies.

Date: Signature of grievor 3. What arguments would representatives from both the Northern Timber and Timber Workers Union make at the rights arbitration hearing?

The employer would argue that: • • • • •

A disciplinary or just cause approach should be applied to this situation; Josh has been guilty of theft; Josh has been guilty of violating the organization’s substance use policy that clearly provided that a violation was cause for immediate dismissal; The rule or policy relating to substance use was clearly brought to Josh’s attention; and The substance use policy is a job related requirement in view of the safety implications of this worksite.

The union would argue that: • • • • •

a therapeutic or non-culpable (human rights) approach should be taken in the situation, as elaborated upon below; Josh has a moderate length of service; Josh has no previous record of misconduct; josh has been candid and cooperative in the investigation process; and Josh has taken immediate remedial action to deal with their marijuana use.

With respect to the non-culpable approach the union would argue that Josh suffers from a dependency which is a disability as defined by human rights legislation. The employer cannot impose discipline for non-culpable misconduct. The employer owes a duty to accommodate to the point of undue hardship. The employer has not accommodated to the point of undue hardship, for example, it would be possible to reinstate Josh after allowing them time away for treatment to overcome their dependency on marijuana.

4. Assume that you are the arbitrator in this situation. Outline your decision, providing reasons.

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It is unlikely that an arbitrator would find that there has been a theft in this situation as the grievor has provided an alternative plausible explanation.

With respect to the violation of the organization’s policy on marijuana, an arbitrator could find that this case requires a hybrid approach as provided in Kemess Mines Ltd. 139 L.A.C [4th] 305 and Fraser Lake Sawmills 93 LAC [4th] 407. Both of these cases involve a grievor caught smoking marijuana at work. In Kemess Mines, the employee was smoking marijuana in a company residence and he was reinstated. In Fraser Lake Sawmills the employee was caught smoking marijuana while working and the termination was upheld.

A hybrid approach involves a situation where there is both culpable and non-culpable conduct. In this situation the culpable conduct is a clear violation of the organization’s policy. The nonculpable component is the dependence on a drug. It is likely that an arbitrator would fashion an award that provided as follows: •

A lengthy suspension, likely equivalent to the time from the discharge to the time of the arbitration hearing. The result would be that the employer does not owe any compensation to Josh.

•

Reinstatement subject to conditions such as: seeking treatment for chemical dependency, refraining from marijuana use, consenting to the employer conducting random searches of Josh’s workplace, possible random tests for marijuana usage.

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Appendix C Contract Negotiation Simulation

APPENDIX C CONTRACT NEGOTIATION SIMULATION Appendix C provides a collective agreement in the dry-cleaning industry that could be used in assignments relating to the analysis and negotiation of a collective agreement. There are two draft assignments provided in this manual that instructors can use or vary as they wish. The assignment instructions are available in Word in the electronic copy of the instructor's manual to allow dates to be inserted or instructions to be modified. A brief overview of the assignments and some comments are provided here.

Explanation of Assignment 1 Collective Agreement Analysis This assignment requires union and employer bargaining teams to analyze the collective agreement. This assignment could be assigned to individual or teams. Students are asked to identify areas where the union and the employer would like to see changes and additions to the collective agreement. This assignment could be assigned by itself or used to prepare students for Assignment Two Contract Negotiation. To do this assignment students must have completed chapter seven, Collective Agreement Terms. It is suggested that this type of assignment be used if students are going to be required to do Assignment Two Contract Negotiation. If students do not have a thorough understanding of the collective agreement, they cannot prepare contract demands or negotiate an agreement. For example, if students have not learned that the union security provisions in an agreement do not require union membership, they likely cannot make this a contract demand or discuss it in negotiations. A summary of possible union and management issues for this assignment is provided in a table below.

Explanation of Assignment Two Contract Negotiation In this assignment union and employer bargaining teams prepare demands and proposals and attempt to negotiate a renewal of the collective agreement. There are separate confidential instructions for union and management bargaining teams regarding their authority to settle and priorities. The confidential instructions are provided in an abbreviated form with selected issues for a shorter assignment and a long form with most of the agreement. The instructions for the bargaining teams have been set up so that there is a contract zone on the issue of wages. Employer representatives have been given the authority to grant a wage increase that union teams should be able to accept. On some issues there is no contact zone; the union and employer teams have been given instructions that will not allow for an agreement unless one or both of the parties change their resistance point. This assignment provides instructions to the bargaining teams as a unit. It does not establish roles for individuals on each team such as a chief spokesperson, record keeper, and national union representative. You may modify the assignment to provide for such roles. If a chief spokesperson is appointed that student will gain much more experience and benefit from the exercise. Students may be required to assume the spokesperson role for different issues. This distributes the work and provides everyone with an opportunity to act as the spokesperson. The instructions provided set out three dates regarding the completion of the assignment as follows: 1) a date for students to submit demands or proposals to the instructor and the other side; 2) a later date by which a settlement should be reached; and 3) a third date, usually a week after the settlement date, for students to prepare and submit the documentation.

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Instructors can insert dates or modify the material that students are to submit to suit their preferences. Issues could be added or deleted from the information provided to students. The instructions provided require students to submit the following material: 1. Demands presented to the other side. Both teams are required to submit a copy of the proposals or demands to the instructor the day before they are presented to the other side. Without this requirement students do not adequately prepare for the initial meeting. It is also suggested that each team prepare a brief discussion of their respective bargaining zones for each of their demands.

2. A completed Notice of Agreement. This notice is provided below. It is used to record the date and time an agreement is reached. If the time of the settlement is not being used as a factor in the marking of the assignment it could be omitted.

3. Memorandum of Settlement/ New Agreement. The instructions require both teams to prepare a Memorandum of Settlement and have the other side initial the copy that they have prepared to confirm agreement. In reality there would only be one Memorandum prepared, however both teams should have this experience. Another option is to have the employer team prepare the Memorandum of Settlement. The rationale for giving this task to the employer team is that they may have less work to do in the preparation of demands than the union team. An illustration of Memorandum of Settlement is provided in the text in Figure 8-12.

Alternately the teams could be instructed to submit a revised collective agreement with any revisions agreed to during bargaining. This will reinforce the need for a discussion and consensus with respect to contract language and ensure both union and management teams capture their agreements in writing. It is up to the instructor’s discretion to mark according to the quality of the contract language or to assess that the language is consistent for both union and management teams.

4. Logbook. The instructions do not require the preparation of a logbook or minutes to record dates of meetings, proposals exchanged and outcomes of various meetings however this could be added if desired. The purpose of a logbook is to reinforce the need for both parties to document the results on the discussions on each of the demands. These minutes could also be used to ensure that students discussed all demands issued in bullet 1 above. In large classes, where you may have teams in separate rooms, this becomes a valuable tool.

5. Student peer evaluations. The instructions provide students with a peer evaluation form that they are required to complete for the other students on their team. This form guides students to better team performance by listing categories of behaviour such as preparedness for meetings and working with others. This evaluation was added to reduce the likelihood that students will receive the team grade while not completing all of the required components. In addition to the student peer evaluations a team log could be required. This would be a written record that sets out the dates and times the team met, and the work completed. Finally, students could be required to post their individual contributions to their team page on the course learning management system.

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6. To encourage a settlement and have students experience the threat of a strike or lockout, there is a strike or lockout deadline set at the date and time by which an agreement is supposed to be reached. The strike or lockout deadline could be established at the beginning of the class by which an agreement is supposed to be reached. The Notice of Agreement requires the teams to confirm the date and time an agreement was reached. The instructions to students provide that if an agreement is not reached by the strike or lockout deadline, they will lose marks at the rate of .5 marks from the score they would otherwise receive, for each 10 minutes that a strike or lockout continues.

A possible marking scheme that allocates marks on the basis of the results achieved and incorporates a penalty if an agreement is not reached by the deadline is provided on a separate page. The instructions and rubric provided penalize both sides if an agreement is not reached by the settlement date--thestrike and lockout deadlines. Instructors could consider one of the following alternative approaches to ensure that an agreement is reached by the deadline: 1. Failure to reach agreement results in both sides failing the assignment or being significantly penalized.

2. Final Offer Selection. Students could be instructed that final offer selection will be used if they do not reach an agreement by the deadline. This would involve each team submitting a final offer to the instructor and the instructor would choose between the two. A significant mark penalty could be imposed upon the team whose offer was not selected. The threat of having to prepare the final offer and the possibility of losing a significant number of marks should be enough to encourage the parties to negotiate their own agreement by the deadline. This might also be a useful illustration of the final offer selection concept.

3. Both management teams are penalized based on how long it takes to reach a settlement. For example, the instructor may set the termination of the agreement at 2:30pm during a class that ends at 3:00 pm. For every five (5) minutes beyond the deadline, will result in a 5%-mark deduction on the project.

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Assignment 1 Collective Agreement Analysis Due date: Value: Review the collective agreement and the background information provided in the text. Assume that you are preparing to negotiate a renewal of the agreement.

Part 1 Changes to current contract terms Identify 10 articles that you think that the union would like to have changed and 4 articles that management would like to have changed. Do not refer to compensation. For any article referred to, identify the existing provision, and briefly explain the changes the union would want and/or the changes management might want. For example, a union might want the number of days to file a grievance to be increased, and management may want the number of days to be decreased. In a separate section below, you will be required to comment on issues that the contract does not currently cover. Discuss the items in the order as these are referred to in the current agreement.

There may be articles that neither the union nor management has any concerns with. There may articles that only one side has concerns with. Refer to any changes in conventional not contract language. Refer to only one item for each main heading in the agreement for each side. For example, if you indicate that the union wants a change to Article 10.2 do not add that the union also wants a change to Article 10.3. It would be permissible to indicate that management would like a change to Article 10.3 but that would be the only management change for Article 10.

Comment on the articles and the changes that you think are the most significant.

Part 2 New contract terms 1.

Identify one new provision that the union would like to see added to the contract. This refers to an issue or item that the current contract does not refer to. Explain in conventional language the details of what the union would want added to the agreement.

2.

Identify one new provision that management would like to see added to the contract. This refers to an issue or item that the current contract does not refer to. Explain in conventional language the details of what management would want added to the agreement.

A recommended format is as follows: Part 1 Changes to current contract terms Article

Union changes

Employer changes

Provide number of article and brief explanation of current provision in your own words.

Provide an explanation of the change(s) the union would want in your own words.

Provide an explanation of the change(s) the employer would want in your own words.

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Article ___ provides that Provide for the processing of Provide that employer may union dues must be remitted grievances during working remit dues to union ona to the union within 10 days hours without loss of pay. monthly basis. of deduction.

Example: Article ___ provides that grievances are only processed during working hours if agreed to by the employer.

Part 2 New contract terms Set out in conventional language [insert number] new terms the union would like to see added to the collective agreement and [insert number] new term the employer would like to see added to the collective agreement This refers to issues that are not referred to in the existing agreement.

Example: The union wants a provision relating to _________________________ added to the agreement.

This term will provide that …………

The employer wants a provision relating to _________________________ added to the agreement. This term will provide that …………

The following table summarizes union and employer concerns, and some possible additions to the agreement for Assignment 1 and 2.

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Article 1.02 Recognition Non-bargaining unit employees may replace bargaining unit employees under certain circumstances.

2.0 Union Security 2.04 (b) (i & ii) Employer to provide SIN number to union.

4. Management rights Management has unilateral and unrestricted rights.

5. Grievance procedure All time limits are mandatory.

4.03 Employee may present the case to management.

6. Discipline and Discharge 5.02 requires a union representative to be present during any disciplinary meeting.

Failure to do so will make discipline null and void.

7. Employee Record

Appendix C Contract Negotiation Simulation

Union concerns 1.02 (e) provides that the employer may replace bargaining unit employees who are on vacation with non bargaining unit employees. Amend to remove this provision.

Amend to remove requirement of SIN for privacy reasons. Alternate identification process may be required.

Management concerns Management will prefer to keep this language as it provides flexibility.

Amend to remove requirement of SIN for privacy reasons.

Alternate identification process may be required.

Amend to include advanced notice to union prior to implementation to any changes that affect bargaining unit employees.

Amend 3.01 and remove “who has acquired seniority” All time limits are mandatory. Amend to directory.

.

Remove option of employee presenting the case.

Employee’s may be present in cases of discharge. Union to present all cases

Remove “verbal” from Article 5.01 Amend to include “where practical”. Situations arise where a union representative, or where employee, is not available. For example, incarceration.

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Management will argue that this is insufficient time to assess if behaviours have changed. Amend to 24 months or longer.

Agreement provides a sunset clause of 10 months.

8. Arbitration No provisions for mediation.

Provide for mediation prior to arbitration.

7.01 provides for a mandatory 30 days or the grievance is deemed abandoned.

Amend to directory time limits.

7.02 Requires a panel of 3 arbitrators 9. Representation

Amend to one for cost reasons.

8.2 These articles provide for unions representatives to be paid by the employer when conducting union business such as grievances and bargaining.

8.4 Provides for an alternate union representative be appointed by the union in the event of an absence.

No advanced notice is required.

10. No Strikes / No Lockouts 9.02 provides that drivers are not required to cross legal picket line.

11. Statutory Holidays 10.01(a)

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Amend to one for cost reasons.

Amend to indicate that union representatives will be provided a reasonable amount of time to investigate or discuss grievances with union members or management.

Amend to union representatives be paid by the union during bargaining.

Amend to “where practical” one-week advanced notice is required. This is for manpower planning.

Propose to remove.

Union will demand additional days over and above statutory days.

Remove requirement.

If organization agrees to additional days, any such days will be accounted for by article 10.02.

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Provides employees must work day immediately prior.

10.01(b) Proved 1.5 times pay.

Amend to 2 times pay in addition to holiday pay.

Amend to payment for holiday only. This reduces cost as the lieu day can result in overtime or additional employees to be scheduled.

10.01(c) Provides for day in lieu if holiday falls in vacation period.

10.02 Provides for additional statutory holidays if prescribed by the government.

If additional days are agreed to in 10.01, then require any additional days will be designated or applied to 10.01.

This will reduce the number of days of required paid holidays.

12. Compensation 11.01 provides for the current wages.

Demand real wage increases for employees.

11.02 provides for payment of parking tickets.

Seek to increase amount.

13. Vacations with pay

Union will seek additional vacation. See case study outline.

12.07 provides for supervisors to perform work during times of vacations.

Resist any wage increases due to competition.

Delete provision.

11.03 provides for $130 for purchase of safety shoes.

12.04 provides that an employee may take all their vacation at once.

Appendix C Contract Negotiation Simulation

Seek to increase the allowance period to 18 months.

Seek approval by management prior to purchase. This will eliminate the need for replacing shoes that are still in good repair.

Amend that vacation requests must be approved by management.

Amend to schedule bargaining unit employees to replace those on vacation.

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14. Use of organization’s vehicles 15. Seniority

Appendix C Contract Negotiation Simulation

Amend to have bargain unit employees assigned to special deliveries.

15.02 provides employee are temporary for 180 calendar days.

Amend to shorter term – 60 days.

15.05 provides that an employee will lose all seniority after 12 months of layoff.

Amend to extend time limits. For example, loose seniority when on layoff for a duration equal to seniority.

15.07 provides for loss of seniority after 3 consecutive days of absence.

Amend for a longer duration

There are no provisions for determining seniority in the event two employees have the same hire date.

Tie breaker language may be required.

There are no provisions for notice of layoff.

Amend to include notice periods, with the more seniority employees receiving longer notice.

There are no provisions for super seniority of union representatives.

16. Hours of work and overtime

Amend accordingly.

16.07 provides for a review of a route by employee and supervisor when there is a dispute.

17. Leaves of absence

Amend to include union representative during dispute of a route.

17.04 defines “immediate family”.

Review provincial employment standards act for compliance.

Tie breaker language may be required.

Amend to lesser time period.

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17.05 provides for 14 days leave.

18. Job posting Provides for the process of employees applying and obtaining a route.

Routes are not assigned by seniority. Employees are restricted when they can reapply. Employees cannot apply if on current route for less than two years, and if successful cannot apply for another opening for two years.

19. Employee benefits

Appendix C Contract Negotiation Simulation

Request for leaves if elected to public office.

Negotiate up to 10 paid days of leave.

Amend to have employees placed by seniority.

Amend to be able to post for secondary openings.

Management would prefer to have a sufficient ability clause, particularly if the union demands placement by seniority.

Amend to provide for 1 year to reapply.

Amend to include that permanent openings be posted for a defined period of time Amend to reduce costs or copay to employees.

20 Sick leave 20.01 Provides for the Union to demand accumulation of sick days additional accumulation to for the calendar year.

16 hours per month.

21. No discrimination 21.02 outlines those individuals who are protected under this Article. The individuals protected is often amended by provincial or federal legislation.

New language: Severance for sale/merger/acquisitions

Eliminate the carry over of accumulated sick days from one year to the next.

Reduce number of sick days.

Amend to indicate any Amend to indicate any persons persons protected under the protected under the Human Human Rights Act. Rights Act.

Union will be seeking additional protection of its members in the event of a sale/merger/or acquisition.

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out, and additional benefits in the event of a layoff.

There is no provision for severance pay, other than that provided in provincial or territorial legislation.

The union would prefer a severance pay provision be added to the agreement.

Some agreements provide that if an employee is laid off they may give up their recall rights and claim The union may prefer that severance pay. such a provision be added to the agreement.

Assignment 2: Contract Negotiation Value: In this assignment union and management teams will negotiate with a team representing the other side and attempt to negotiate a renewal of the collective agreement in Appendix C of the text.

There are three steps in this assignment.

1. Each team will review the background information, the current agreement, and the confidential instructions provided. The team will prepare a set of contract demands or proposals that will be presented to the other team and the instructor on [insert date]. The contract demands or proposals should incorporate any suggestions or instructions provided in the confidential instructions. The demands or proposals should follow the order of the collective agreement. Demands relating to any new terms for the agreement may be placed at the end of the proposal. The proposals or demands should be presented in the form of a memo to the other side, and the format is as follows: The [Union or Employer] proposes that the current collective agreement be renewed with the following changes and additions: 1. Article ____ shall be amended to provide that the first Monday in August is a paid holiday.

2. An article shall be added to the collective agreement providing for the distribution of overtime on the following basis: 2. The teams will meet and attempt to negotiate a renewal of the agreement by the strike or lockout deadline [insert date and time]. During the negotiation process union and management teams will have to meet on their own to discuss tactics, demands, concessions, and possible terms of settlement. When the teams have negotiated an agreement, the Notice of Agreement provided should be completed and signed.

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3. After reaching an agreement the teams will complete and submit the following documentation on [insert date].

• A completed copy of the Notice of Agreement; • Memorandum of Settlement. Each team will submit a Memorandum of Settlement, which has been initialled by the other side. An illustration of Memorandum of Settlement is provided in Figure 8-10 of the text. If the parties have a disagreement on the Memorandum of Settlement they will meet with the instructor; and • Student peer evaluations, team log, and LMS file deposited are submitted to the instructor. The peer evaluations are confidential.

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Summary and timeline for the assignment: 1. Each bargaining team prepares for the initial meeting with the other side and prepares demands or proposals in accordance with the confidential instructions. These demands or proposals are presented to the other side and the instructor on [insert date]; 2. Bargaining teams continue negotiations; 3. Agreement is reached on or before the strike and lockout deadline and Notice of Agreement is signed by bargaining team representatives; and 4. Final submission is made to instructor: Notice of Agreement, Memorandum of Settlement, and Peer Evaluations, on [insert date].

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NOTICE OF AGREEMENT

The union and the organization reached agreement at (1) ___________________________, on (2) __________________________.

____________________________ Union representative

_____________________________ Management representative 1) Insert exact time, for example 8:50pm 2) Insert date Note: This document must be completed and signed by at least one union and one management team member. This notice should be submitted to the instructor as part of the final submission for the Contract Negotiation assignment.

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Peer Evaluation

Completed by ___________________________________ Student Name

Performance Excellent 10

Good 8- 9 points

Satisfactory 5-7 points

Attendance

Always attends.

Attends almost all meetings. (9-8 pts.)

Attends most meetings.

Contributions

Often provides useful ideas when participating in the group. A definite leader who contributes a lot of effort.

Provides work of the highest quality.

Usually provides useful ideas when participating in the group. A strong group member who tries hard!

Rarely provides useful ideas when participating in the group. Sometimes refuses to participate.

Timemanagement

Always uses time well throughout the project to ensure things get done on time. Group does not have to adjust deadlines or work responsibilities because of this person's procrastination.

Usually uses time well throughout the project but may have procrastinated on one thing. Group does not have to adjust deadlines or work responsibilities because of this person's procrastination.

Sometimes provides useful ideas when participating in the group. A satisfactory group member who does what is required.

Provides work that occasionally needs to be checked/redone by other group members to ensure quality.

Tends to procrastinate, but always gets things done by the deadlines. Group does not have to adjust deadlines or work responsibilities because of this person's procrastination.

Problemsolving

Actively looks for and suggests solutions to problems

Refines solutions suggested by others.

Focus on the task

Consistently stays focused on the task and what needs to be done. Very selfdirected

Focuses on the task and what needs to be done most of the time. Other group members can count on this person.

Does not suggest or refine solutions but is willing to try out solutions suggested by others.

Focuses on the task and what needs to be done some of the time. Other group members must sometimes nag, prod, and remind to keep this person ontask.

Does not try to solve problems or help others solve problems. Let’s others do the work.

Rarely focuses on the task and what needs to be done.

Let’s others do the work.

Preparedness

Brings needed materials to class and is always ready to work.

Almost always brings needed materials to class and is ready to work.

Often forgets needed materials or is rarely ready to get to work.

Pride

Work reflects this student's best efforts.

Routinely monitors the effectiveness of the group and makes suggestions to make it more effective.

Work reflects a strong effort from this student.

Routinely monitors the effectiveness of the group and works to make the group more effective.

Almost always brings needed materials but sometimes needs to settle down and get to work (7-6 pts.)

Work reflects some effort from this student.

Occasionally monitors the effectiveness of the group and works to

points

Quality of Work

Monitors team effectiveness

Provides good work.

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Needs Improvement 0-4 points Rarely or never attends.

Provides work that usually needs to be checked/redone by others to ensure quality.

Rarely gets things done by the deadlines AND group has to adjust deadlines or work responsibilities because of this person's inadequate time management

Work reflects very little effort on the part of this student.

Rarely monitors the effectiveness of the group and does not work to make it more effective.

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Appendix C Contract Negotiation Simulation make the group more effective.

Working with Others

TOTAL =

Almost always listens to, shares with, and supports the efforts of others.

Tries to keep people working well together.

Usually listens to, shares, with, and supports the efforts of others. Does not cause "waves" in the group.

Evaluator _________________________________

Often listens to, shares with, and supports the efforts of others, but sometimes is not a good team member.

The following is a proposed rubric which could be amended as desired.

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Rarely listens to, shares with, and supports the efforts of others. Often is not a good team player.

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Negotiation Assignment Marking Scheme The assignment is worth [insert %] of the grade for the course. The marks for the assignment will be broken down between the results achieved, how good a deal did you get, which is worth _____% of the marks for this assignment, and ____ % for the material submitted.

The marks for the results achieved will be allocated as follows: 1. Each issue will be marked out of 10 for each team. For each issue there are 16 total points available, which must be divided between the union and the management team. For example, on issue 1 management achieves a better result and the points are divided as follows: 9 for the management team and 7 for the union team. For issue 2 the union achieves a better result, and the points are allocated with 10 going to the union team and 6 to the management team. This means that a bargaining team can make concessions in some areas, provided that better results are achieved in other areas.

2. Marks will be deducted if an agreement is not reached by the strike or lockout deadline as follows: .5 marks for each 10 minutes that the agreement is delayed after the strike deadline.

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Confidential Union and Management Instructions Provincial Lottery Corporation Confidential Union Bargaining Team Instructions To: Union Bargaining Team From: Local Executive Subject: Contract Renewal Negotiations This memo provides instructions to members of the bargaining team representing Allied Service Union Canada Local #254 Union for the upcoming contract negotiations with the Clean Right Partners Inc. The bargaining team is instructed to deal with the issues referred to here and any issues raised by management. The team is directed to negotiate an agreement with the employer that, to the extent possible, falls within the limits prescribed in this memo. If any issues arise in negotiations that are not covered in this memo the team is authorized to settle those issues on the best terms possible.

Article 1 Recognition and Scope The current agreement provides for the replacement of non bargaining unit employees, including supervisors to replace bargaining unit employees when on vacation. The Union is concern with erosion of their membership and will seek to remove this provision. Bargaining unit employees who are on vacation should be replaced by other bargaining unit employees.

Article 2 Union Security The current agreement provides that the employer must supply the Union a list of employees and their respective social insurance numbers for which the employer has deducted union dues. The union does not wish to have the liability of being in possession of personal information. The union should demand that this information be removed and replaced with an alternate identifier.

Article 3 Management Rights This article provides that only employees who have acquired seniority may made a claim of being discharged without cause. The union will demand that the phrase “who has acquired seniority” be removed.

This article provides unilateral and unrestricted rights to operate the business. In light of employee concerns regarding a merger or sale of the business the union will demand that advanced notice is required regarding any change in the organization’s plans on how the business is operated.

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Article 4 Grievance Procedure The current agreement provides that the time limits in the grievance process are mandatory. The bargaining team should attempt to have this amended to provide that the time limits are directory, that a single arbitrator be appointed to rule on grievances, and the appointment of a conciliator as a step before arbitration. These steps are designed to reduce the cost of the arbitration process.

Article 10 Statutory Holidays This article provides for the minimum number of holidays required by provincial or territorial law and if employees work any of these holidays, they would be paid a premium of 1.5 times the hourly rate. The union should demand additional holidays at a premium of 2.0 times the hourly rate.

Article 11 Compensation The bargaining team is instructed to pursue a one or two-year agreement. A three-year agreement is acceptable only if there is adequate protection against inflation. For the first year of the agreement the local hopes to achieve a 4 percent wage increase, and under no circumstances will it accept less than a 2 percent increase. In the second year of the contract the local hopes to achieve a 3 percent increase and under no circumstances will accept less than a 2 percent increase. A strike vote has not yet been held; however, it is anticipated that the bargaining unit will vote in favour of a strike.

The current agreement also provides for $130 purchase for safety shoes. The union should seek to increase this amount to $150.

Article 12 Vacations with Pay The current of agreement allows for the replacement of employees who are on vacation with supervisory personnel. It is a union security issue as it potentially reduces the number of bargaining unit employees. The union will demand that this practice cease and that bargaining unit employees are to be scheduled to replace other members who are absent from work.

The union must also seek additional vacation. See case outline for details on this demand.

Article 13 Use of Company Vehicles This article restricts union members from driving special routes after the completion of their route.

The Union should demand that bargaining unit employees be scheduled for special routes and paid overtime if required.

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Article 14 Seniority The current agreement provides that an employee remain a probationary period of 180 days. The union should demand that this temporary period be reduced to 60 days.

The current agreement requires that in the event of a layoff, when an employee is to be recalled they must be capable of performing the position available. The union should seek to have this provision of capability removed.

The current agreement provides that bargaining unit employees will lose seniority if they are absent from work for 3 consecutive days or overstays a leave, without a valid reason. The union should seek to have these provisions removed.

There are no current provisions for determining the order of seniority in the event that two employees have the same seniority date. Tie-breaker language needs to be determined.

There are no provisions for advanced notice of layoff. The union should seek to provide for advanced notice of layoffs. Further, the amount of advanced notice be greater for employees with greater seniority.

There are no current provisions for super seniority for union representatives. The union should seek provisions that protect union representatives in the event of a layoff.

Article 15 Hours of Work and Overtime.

This article provides that when an employee challenges the workload that a reassessment will be conducted by the employee and a supervisor. The union should seek to include a union representative during this reassessment.

Article 16 Leaves of Absences The union must demand an additional 10 days of paid leave of absence.

This article defines several leaves and defines different durations depending on the relationship with the employee. These definitions may not be compliant with provincial or territorial legislation. Review provincial employment standards act for compliance and make appropriate demands.

Furthermore, the current agreement does not provide for any leaves for employees elected to public office. The union may make demands to include a provision for a leave of absence for employees who are elected to public office without loss of seniority.

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Article 17 Job Posting Provides for the process of employees applying and obtaining a route. Routes are not assigned by seniority. Employees are restricted when they can reapply. Employees cannot apply if on current route for less than two years, and if successful cannot apply for another opening for two years. The Union should make demands in the following areas: 1. Openings should be posted for a defined period of time. Typically, opportunities are posted for one week; 2. Employees should be placed on available openings by seniority; 3. Employees should have an opportunity to apply for any secondary openings; and 4. Shorten the time frame when an employee can apply after successfully applying for an open position.

Article 19 Employee Benefits The union must seek contractual commitment to implement a long-term disability benefit. See last line is Article 19.01.

The union should make demands to reduce the amount of copay by current employees and new hires for the term of the agreement.

Article 20 Sick Leave This article provides for the accumulation of paid sick leave days. Increase the monthly Sick Leave accumulation to 16 hours per month. Additional adjustments to 20.01 and 20.02 is also required.

Article 21 No Discrimination This article outlines those individuals who are protected under this article. The individuals protected is often amended by provincial, territorial, or federal legislation. This language should be amended to state that employees will not be discriminate with respect to terms and conditions of employment on ground identified by provincial, territorial, or federal legislation.

Article 22 Term of Agreement See instructions on article 11 Compensation for instructions on term of agreement.

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Additional Demands Termination or Severance Pay The current agreement does not provide for any payments to employees who have been permanently laid off or terminated without cause. The union wants a provision added to the agreement to provide for a severance payment to terminated employees. The union would like to achieve a provision that provides for payment of one week’s salary for each year of service.

The bargaining team is also instructed to pursue an amendment providing that if an employee is laid-off they may give up their recall rights and claim severance pay.

Hours of Work The current agreement does not contain language with respect to minimum number of hours to be worked in the event that an employee’s shift is cancelled. The union must demand that a minimum number of hours be paid in this situation.

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Appendix C Contract Negotiation Simulation

Provincial Lottery Corporation Confidential Management Bargaining Team Instructions To: Management Bargaining Team From: Senior Management Committee Subject: Contract Renewal Negotiations This memo provides instructions to members of the management bargaining team representing Clean Right Partners Inc. Union for the upcoming contract negotiations with Allied Service Union Canada Local # 54. The bargaining team is instructed to deal with the issues referred to here and any issues raised by the union. The team is directed to negotiate an agreement with the union that to the extent possible falls within the limits prescribed in this memo. If any issues arise in negotiations that are not covered in this memo the team is authorized to settle those issues on the best terms possible.

Article 2 Union Security The current agreement provides that the employer must supply the union a list of employees and their respective social insurance numbers for which the employer has deducted union dues. The union does not wish to have the liability of being in possession of personal information. The union should demand that this information be removed and replaced with an alternate identifier.

Article 4 Grievance Procedure The management team must demand that a complaint stage be included in these provisions. This will permit the employee to discuss their concern with the supervisor and reach an agreement before the grievance procedure is implemented.

The current agreement provides that the employee may present the facts of the case beginning at Step 2 of the grievance procedure. Management should take the position that the union has the responsibility to represent the employee and this option is an unnecessary provision and should be removed. The management team may make an exception to this demand in the case of discharge.

Article 5 Discipline This article provides any verbal warnings issues by a member of management requires the presence of a union representative. This is an unnecessary provision and management must demand that “verbal” be removed from 5.01.

This article makes it a requirement that a union member must be present during any disciplinary meeting with the employee and that failure to do so will make any discipline null and void. The management team should take the position that there may be circumstances, such as assault or incarceration, where the employee or the union representative is not available and that this Copyright © 2024 Pearson Canada Inc. 202

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provision should be amended to include “where practical” a union representative would be made available.

Article 6 Employee Record This article provides a sunset clause where an employee’s current disciplinary record will be “clean” after of 10 months. The management team should take the position that this is insufficient time to measure a change in the employee’s behaviour and demand an increase of this time to 24 months or longer.

Article 8 Representation This article provides that union representative wages will be paid during grievance investigation or meetings and during negotiations. The management team should take the position that the union should be paying for the union representatives time for those activities associated with the grievance procedure, including arbitration, and during bargaining. Failure to bargain this the management team should seek to amend the agreement that a union representative will be provided reasonable amount of time to conduct their activities during the grievance procedure.

Management’s concern is that a union representative may take an inappropriate amount of time on a grievance.

Article 9 No Strikes / No Lockouts This article provides that employees are not required to cross a legal picket line. The management team should seek to delete this provision as it is a form of illegal work stoppage not permitted by the legislation.

Article 10 Statutory Holidays This article provides that if a statutory holiday falls during an employee’s vacation period that they will be provided an extra day vacation or pay in lieu of the day. This represents an additional cost to the organization. The additional cost would be to pay which is not required by the legislation, or the additional day in lieu as the organization may need to replace that employee at a later time.

Management would prefer to remove the cost or only pay for the statutory holiday.

Article 11 Compensation Management should resist any wage increases above the cost of living. Any wage increase considered by management needs to include any consideration for an increase of cost of living.

For example, if the projected cost of living increases by 2% in a calendar year and the organization is also willing to provide a real wage increase of 1% then the total agreed to wage increase would be 3%. This will protect the company in the event the cost of living is greater than 2%. The management team should resist any language that permit a wage increase be based on any increase in the cost of living.

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The current agreement also provides for $130 purchase for safety shoes after 12 months without any limitations. The management team should seek to increase the shoe allowance period to 18 months and to include a provision that approval for new shoes are to be obtained from management in advance. This would eliminate any unnecessary costs associated with replacing shoes that are in good condition.

This article also requires that all parking tickets by employees be paid by the employer. The Management team should seek to remove this provision.

Article 12 Vacations with Pay The current of agreement permits an employee to take all their vacation at one time. The management team should seek a limitation on these requests due to concerns over scheduling and provide that all vacation requests must be approved by management in advance.

Article 14 Seniority There are no current provisions for determining the order of seniority in the event that two employees have the same seniority date. Tie-breaker language needs to be determined.

Article 15 Hours of Work and Overtime.

This article provides that when an employee challenges the workload that a reassessment will be conducted by the employee and a supervisor. The union should seek to include a union representative during this reassessment.

Article 16 Leaves of Absences This article defines several leaves and defines different durations depending on the relationship with the employee. These definitions may not be compliant with provincial legislation. Review provincial or territorial employment standards act for compliance and make appropriate demands.

The management team should seek to reduce the amount of time off for bereavement.

Article 20 Sick Leave Management should seek to eliminate the carry over of unused credits from one year to the next.

See Article 20.

Article 21 No Discrimination This Aaticle outlines those individuals who are protected under this article. The individuals protected is often amended by provincial, territorial, or federal legislation. This language should be amended to state that employees will not be discriminate with respect to terms and conditions of employment on ground identified by provincial, territorial, or federal legislation.

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Article 22 Term of Agreement The bargaining team is instructed to pursue a three-year agreement. A strike vote has not yet been held; however, it is anticipated that the bargaining unit will vote in favour of a strike.

Additional Demands Outsourcing / Merger/ Acquisitions The current agreement does not provide for any payments to employees who have been permanently laid off or terminated without cause. While there are no current plans to sell the business, in order to maintain marketability of organization. The Management team must limit the amount of any severance cost that may result in a change of ownership.

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Appendix A Cases

Found: An Unsigned Card Tara Wieznetski worked on the seat assembly line for an auto parts supplier in southern Ontario.

Tara was an outgoing person who was regarded as a good employee although one who could get easily excited and sometimes openly display their displeasure with organizational management.

However, Tara’s human resources file showed no disciplinary records during their five years with the organization.

On Friday afternoon, Micheal Chi he plant’s assistant manager, went to Tara’s workstation and told them that starting next week they would be moved to another part of the assembly line, a place where new employees started out and frankly was the least desirable job on the line. Tara was shocked by the news and asked Michael if they had done something wrong. When Michael started to walk away, Tara started shouting at Michael and Michael turned to warn Tara to lower their voice. Tara turned away, uttering some choice words under their breath.

On their way home later that day, Tara saw a poster for a Canadian national union displayed on the interior of the bus. Tara casually read the ad and went to the website address on their phone. During the rest of the trip Tara read on the union website about things a union could do to help promote a sense of fairness and protect employees’ rights. Tara sent their phone number and email address to the union’s website contact. On Saturday afternoon, Tara received a call from Jo Souma, who identified themself as a union organizer with the Workers’ League of Canada (WLC). After asking Tara a number of questions about their work and other complaints they had heard from their peers, Jo invited Tara to meet them for coffee that Sunday afternoon to talk about work and answer any of their questions about unions.

Following the Sunday meeting between Jo and Tara, it was agreed that Tara would invite several of their colleagues, who also had complaints or at least were somewhat dissatisfied with plant management, to a meeting the following Thursday at a local pub. Over beer and wings, Jo listened carefully to what each of Tara’s work colleagues said and responded at the end of their comments with a point-by-point summary of how the WLC could help their situations—better benefits, improved vacations, seniority credits for job postings, and improved health and safety practices, particularly in the assembly line areas. At the end of the night, Jo pulled Tara aside and asked them to get those who they thought would support a union to sign membership cards during breaks or lunch hours in the coming week.

Tara started at their reassigned job on the following Monday. Tara was certainly motivated to carry out Jo’s assignment and by Wednesday had over 15 of the 30 employees in the assembly line division signed up. Michael had kept his eye on Tara since Monday to see how they were adjusting to their reassigned job. Michael noticed that Tara did have an unusually larger group of other employees sitting with them during breaks and at lunch. On Wednesday afternoon, after Tara and four other employees left the break room, Michael walked over to the table where they had been sitting and noted an orange card on the floor. Picking it up, Michael saw that it was a union application card that was not signed. Michael immediately took the card to the plant manCopyright © 2024 Pearson Canada Inc.

ager’s office. Wesley Fiers, the plant manager, was angry with the news and evidence that Michael presented. Wesley questioned Michael on what they knew about this threat and who was behind it. Michael mentioned Tara and the names of those they saw in the break room that day.

Michael was directed to have all of these employees called to a meeting in Wesley’s office before the end of the shift.

The nervous group of employees filed into the plant manager’s office at 2:45pm. Michael closed the door and Wesley began by informing the gathered employees that they had evidence that employees in the plant were attempting to join a union. At first, Wesley expressed disappointment of learning about this in the manner that they did, saying they always kept an open door policy with all of their employees. Wesly then raised their voice and said a union was never going to enter the plant while they were manager. Wesley pulled out the unsigned union card, tore it in half and threw it in the waste basket beside their desk. Wesley ranted about the empty promises unions always make in such cases and in the end a union would only increase the risk of the organization going bankrupt in what was a very competitive auto supply sector. “Think carefully about your future,” Wesley hissed as the employees filed out of their office. Michael pulled Tara aside and asked them to stay for a minute. When all of the employees had left, Tara was asked to take a seat. Wesley sat behind their desk and nodded at Michael. The assistant manager turned to Tara and informed them that a decision had been made earlier in the week to reduce staffing in the assembly division and Michael regretted to inform Tara that their job was eliminated. Michael said Tara would be given pay-in-lieu of notice plus severance pay based on employment standards requirements. Michael said Tara should turn in their security badge and clean out their locker before leaving the plant. “That will be all,” said Wesley as Michael opened the office door.

Tara was stunned by the news. Although they had signed a union card and late yesterday turned it in along with more than a dozen cards from their fellow employees to the union organizer, Tara never thought it could lead to them losing their job. After cleaning out their locker, Tara made their way to the bus stop. While waiting for the next bus, Tara pulled out their phone and put in a call to Jo. QUESTIONS 1. What evidence is there in the case that Wesley has interfered with the rights of the employees in this case?

2. Looking at the legislation and labour relations board website in your jurisdiction, set out arguments that could be made by the union before the Board against this employer for its actions against Tara..

3. What outcome do you suspect regarding the employer’s actions in this case?

Are We “In The Zone”?

Rikki Wang was the HRM generalist serving three grocery outlets in a major metropolitan centre in western Canada. Rikki graduated from the MacEwan University with a business degree majorCopyright © 2024 Pearson Canada Inc.

ing in HRM and had secured the present job three weeks after graduation. The three stores were unionized with a total of 44 employees in one UFCW bargaining unit among the three sites.

Rikki carried responsibility for labour relations and health and safety for the regional chain of stores. Rikki’s other colleague picked up responsibilities for all remaining HRM tasks.

The union had served notice to bargain last month for a renewal of the existing contract expiring on June 30. Rikki had already begun their preparatory work by talking to store management about issues with the current contract and other operational matters that would likely be key contributors to the success of the grocery chain in the next 5 years. Rikki had also done market research on compensation and cost-of-living allowance trends both regionally and at the provincial level, as well as speaking to the corporate lawyer who provided HRM advice to them from time to time. A meeting was planned later next week with the general manager, finance supervisor, legal counsel, heads of the receiving/stores, cashiers, and produce employees to discuss developing bargaining strategies for the upcoming bargaining meetings with the UFCW team.

Rikki had a good relationship with the union local president and chief steward. There was going to be a new UFCW business agent involved in the upcoming bargain round, who was reported to be much tougher than the recently retired head office union rep Rikki had dealt with since starting their job.

Due to the competitive nature of the retail grocery industry and inroads made by the emerging web-based food-to-your-door suppliers, Rikki’s employer had tended to set terms and conditions for work of the bargaining unit at or slightly below the competition. Price pressures from much larger competitors also played a factor in preparing for the upcoming bargaining round with the union. From their consultations, Rikki was in the midst of preparing bargaining strategy on three key issues that surfaced from their consultations: call-in pay; seniority links to vacation entitlements; and cost-of-living allowances. Rikki’s research had revealed the following on these key issues: Call-in pay: the grocery chain currently follows provincial employment standards requirements—employees must be paid for a minimum of three hours if they are asked to go to work or attend training, even if it is for a period of less than three hours, unless it is because the employee is unable to continue working. Regional competitors also adhere to provincial ESA; one non-union store pays a four-hour call-in pay allowance.

Seniority links to vacation entitlements: the grocery chain currently follows provincial employment standards requirements—less than 1 year of service (union contract allows for 4% proration); 1-5 years at ESA requirement (2weeks) and greater than 5 years (3weeks).

Seniority-driven entitlements were discussed in the last round of bargaining but were withdrawn by the union in lieu of wage rate adjustments. Many of the bargaining unit members (67%) have eight or more years of service. Survey evidence shows other unionized food outlets (including those with UFCW locals) factor in seniority to vacation entitlements starting after three years of service.

Cost of living (percentage)—regional and provincial forecasts for anticipated contract period: year 1 (2.50); year 2 (2.75); year 3 (3.2).

QUESTIONS

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1. Work out estimated bargaining zone levels including initial, target and resistance, anticipated from union negotiators for each of these three contract items.

2. Work out estimated bargaining zone levels, initial, target and resistance, to be developed by the employer in this case?

3. On each of these issues, how would you answer Rikki’s question, “Are we in the zone?”

Where’s The Money?

Ryan Sanderson, the HRM manager for a small tool manufacturing plant in eastern Canada, was surprised when their assistant Jessica brought in a brown inter-office envelope. The assistant said, “Emily, the USW chief steward, just came by and said to give this to you ASAP.” Ryan opened the envelope and took out the single sheet of paper, quickly noting it was a grievance form.

Scanning the grievance form Ryan sighed, picked up the phone and called Rachel’s extension. When Rachel answered Ryan said, “Emily really, a policy grievance? What’s this all about? Let me grab you a coffee and I’ll swing by your desk in ten minutes.” Arriving with two large coffees, Ryan sat down at Emily’s work station. Emily looked at Ryan and said, “Ryan we have talked about this three months ago and at the time you said you would fix things in accounting. I don’t like getting a call from my business agent screaming, ’Where is the money?’” After taking a sip ofher coffee, Emily continued, “The accounting office failed again to submit the full monthly union dues payment to the USW regional office. We are not a charity, and management agreed to our request in bargaining to a check-off clause to be implemented and followed on a monthly basis. When I spoke to you when this last happened, you said you would fix it. Well, I don’t think it worked, so our local’s grievance committee said I should file the grievance.”

Ryan thought to themself that they did not really have a leg to stand on in this case. The collective agreement with USW clearly noted a union dues check-off responsibility on the part of the employer. However, it was not detailed in terms of the accounts payable duty of the employer. Emily noted, “I can tell what you’re thinking Ryan, why a policy grievance?” “Yeah, I was wondering that too,” commented Ryan. “I guess when all else fails attack the management rights clause.” Emily smiled and said, “So can you fix things soon and assure this won’t happen again?” Ryan nodded and said they were on their way to the accounting office and would arrange for a direct deposit to the union account to be made within one business day. Emily noted, “When that happens and I receive a friendlier call from my business agent, I’ll formally withdraw this grievance; case closed.”

Ryan headed down to see their colleague in the accounting office. Ryan needed to persuade the supervisor in accounts payable that failing to make this monthly fund transfer to the USW account on time was no laughing matter. Ryan’s good working relationship with Emily helped in this instance. Next time, it might be Ryan who received a call from the USW business agent asking in a not-too-friendly tone, “Where’s the money?”

QUESTIONS 1. What is the role of a union local’s grievance committee?

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2. What is a policy grievance and why was it used in this case?

3. Explain why there is merit in improving the language related to the check-off clause now seen in the contract. What additional HRM action might also be taken with workplace staff not formerly within the HRM department but whose job responsibilities are linked in some way to union business?

One Last Chance Rob Benson was not seen by management or their peers as a model employee at the local retirement residence. The union local leadership had also had their hands full with Rob’s troubled nine-year tenure as a maintenance helper. Rob had been disciplined for lateness, unexplained absences and poor performance, particularly in the last two years on the job. On one recent occasion, Rob had been sent home from work due to the appearance of being impaired.

Grace Cavan, HRM manager for the two retirement residences in the municipality, had been reviewing Rob’s disciplinary record earlier in the week. Rob had received numerous warning letters and one recent unpaid two-day suspension regarding another unexplained absence from work. The suspension had led to a grievance being filed by the union which represented health care and support staff classifications at both residences. In speaking to Rob’s supervisor and the plant systems manager, there was concern that Rob’s performance could be related to a possible substance use disorder. This concern had been raised with the union local’s president and chief steward in a separate meeting in Grace’s office earlier that morning.

Both the local union president, Ivana Milanovich, and the chief steward, Ricco Mistow, did not deny the suggestion that Rob might have a substance use problem. In fact, Ricco noted they had asked Rob on the two earlier occasions whether they had been drinking before coming to work. Ivana had confronted Rob on the question of their sobriety on a separate occasion only to be told “I’m fine and I certainly don’t have a drinking problem.” At today’s meeting, Grace firmly told both union local executive members that the director of the retirement residence was prepared to terminate Rob’s employment in light of their most recent unauthorized absence from work. Ricco challenged Grace by claiming if Rob did have a substance use problem, he would need to be accommodated under the provincial human rights code. Grace acknowledged that obligation but told Ivana and Ricco that Rob had not admitted to having any such problems and thus management really did not have any duty to accommodate without confirmation of Rob’s disability. Grace then suggested a plan to the union officials that might offer Rob one last chance. “But I need your help and support to make it happen,” Grace said. They spent the next half hour sketching out their next meeting with Rob that would take place later that week when the Step 3 grievance meeting was scheduled.

On Friday morning, union and management representatives met to discuss the grievance dealing with Rob’s unexplained absence and subsequent suspension. After a review of the facts leading up to that day’s meeting and reviewing Rob’s work record, Grace looked at him and said, “It has come to my attention that others who work here with you have suspected you have a substance use problem. Is that the case?” Rob replied, “No way! My life outside of work is none of your business.” Grace looked him in the eye and replied, “It is our concern when the results of an employee’s outside life interferes with how they get work done. Now I will ask you again, do Copyright © 2024 Pearson Canada Inc.

you have a substance problem?” Again, Rob said “No way!” At that moment Grace turned to Ricco and suggested everyone take a 15-minute break before resuming the grievance meeting.

Ricco invited Rob to go outside for some fresh air. The previously hatched plan between Grace, Ivana and Rico was underway.

Twenty-five minutes later, Ricco and Ivana returned to the HRM office. After everyone was seated, Grace again summarized Rob’s disciplinary record, management’s concern about Rob’s unexplained absences and again the suspicion that Rob’s poor work performance may be linked to substance abuse. Grace then stated that the director of the retirement residence was prepared to offer Rob “one last chance” to keep their job but they would have to admit to those at today’s meeting, despite how hard that may be, that they had a substance use problem. Grace then said that without such admission, Rob would be terminated that day from their job with the retirement residence. Rob was silent for several minutes staring down at the table. Rob then looked up at Ricco, who nodded his head. Rob turned to Grace and said, “I do have a problem with substance use.. My life stinks and I don’t want to lose my job!” Grace told Robb that they were courageous to admit to this problem and that now the employer could offer themhelp. Rob would be placed on paid sick leave and referred to an in-patient treatment centre for up to 3 months. “But that is not all,” said Grace. “We have prepared a last-chance agreement with the union on this matter,” Grace continued, “And it means that when you successfully complete your initial treatment plan and are cleared to return to work, there will be several conditions placed on you in terms of your work performance here at retirement residence.”

The draft of this last-chance agreement, which had been jointly prepared by Grace, Ivana, Ricco and the union’s business agent, included conditions regarding Rob’s successful completion of the in-patient treatment program: weekly attendance at a substance use support group following Rob’s discharge from the treatment centre; the ability of the employer to check in weekly with their support group sponsor regarding their attendance at the meetings; maintaining a work attendance record at least equal to the average annual absenteeism rate for the support staff cohort at the retirement residence; no unexplained lateness for work in the first six months following Rob’s return to the job; and finally the ability of the management of retirement residence, over the next two years, to have random testing done on Rob if there was a suspicion of their being impaired on the job. When asked, Rob said they understood the terms as they had been read to them. The meeting adjourned and Ivana and Ron left the room. Grace looked at Ricco and thanked them for their hard work during the e break with Rob. Ricco replied, “It wasn’t easy. I had to tell him three times that if they didn’t admit to you that they had a problem, they would be fired.” Again, Grace thanked Ricco and reminded Ricco of one of the terms of the agreement not stated in the meeting: that the union would not file a grievance if Rob failed to meet any of the conditions set out in the last-chance agreement and would thus be fired from their job with retirement residence. Ricco smiled and shook Grace’s hand. “I did tell Rob about that. Let’s hope Rob makes it. Thanks for your support.” And with that they parted company.

QUESTIONS 1. Explain how a last-chance agreement can meet the expectations of a human rights tribunal regarding whether or not the employer has demonstrated reasonable accommodation for an employee in Rob’s circumstances.

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2. Can you think of any other conditions in the agreement that Grace should have inserted and negotiated with the union? If so, please describe and be prepared to offer a rationale.

Goodtimes Food Products Ltd. Goodtime Food Products Ltd. produces processed foods, including pickles, relish and canned vegetables. The production workers of Goodtime are covered by a collective agreement. One year ago, the organization discharged Rano, one of the employees in the bargaining unit, after an incident in the plant. Rano had worked for the company for 7 years without incident prior to the day of their dismissal.

Rano worked at a packing station, monitoring a machine that filled pickle bottles with small cucumbers. Occasionally, when there was not enough work, Rano had been moved to another job inspecting bottles. On the day of the incident, Jeff Thomas, Rano’s supervisor, decided that another employee should be trained on Rano’s regular job so that there would be a replacement available if Rano were absent. Because Rano spoke very little English,Jeff instructed another employee who spoke the same language as Rano, Lucy Battaglia, to tell Rano to report to the inspection area when they arrived for work.

When Rano arrived for work and Battaglia told them they was being taken off their regular job, Rano became outraged and swore about Jeff. Rano then walked a short distance to another workstation where Jeff was speaking to another employee and swore and gestured at Jeff with a pair of scissors that were at the workstation. A few minutes later, Rano spoke to the shop steward. The steward immediately prepared a grievance.

When Rano and the shop steward presented the grievance to Jeff in their office, Jeff crumpled it up and threw it in a wastebasket. Jeff told Rano to get back to work. Fifteen minutes later, Jeff went to the inspection area where Rano was working. Rano became outraged. Rano swore at Jeff, picked up a knife that was on a workbench, and shouted and made slashing gestures about three feet from Jeff’s lower body. Jeff left the area.

The organization terminated Rano later the same day. The union filed a grievance challenging the dismissal. The matter was expedited to Step 3 of the grievance process without a successful resolution. It has now proceeded to arbitration.

QUESTIONS 1. What is meant by expedited arbitration and why would it be used in this instance?

2. What arguments would be presented by the union at the arbitration hearing?

3. What arguments would be presented by the employer at the arbitration hearing?

4. If you were the arbitrator, outline the key points and provide reasons for your decision in this matter.

Red Falls Transit Authority Copyright © 2024 Pearson Canada Inc.

The Red Falls Transit Authority (RFTA) operates transit services in a regional center with a population of 400,000. Full-time and part-time RFTA employees are represented by Unifor.

RFTA posted a job opening for an inspector. Inspectors act as lead hands and are not supervisors. They ensure that schedules are met, and signs are correctly displayed, deal with complaints from the public, distribute monthly passes, approve the trading of shifts by drivers, and allocate authorized overtime. The job posting provided that the minimum requirements were as follows: Grade 12 education, three years’ experience in the transit industry, the ability to make decisions, the ability to complete projects and meet deadlines, the ability to deal with the public, written communication skills, good health and the ability to walk for extended periods of time.

Five individuals applied for the inspector job. As part of the selection process, the Authority gave all five employees a test they had first used for the inspector’s job six months earlier. The applicants were tested when they were interviewed and were not told about the test in advance.

The test used was developed after input from current inspectors had been received and an analysis of the inspector’s job had been completed. It included questions regarding terms of the collective agreement, mathematics, problem solving, and health and safety.

Jill Akerman, who had been employed as a full-time driver for 10 years, was one of the applicants—Jill’s first application for an inspector’s job. The position was awarded to Jonathan Noakes, another applicant who had less seniority but a higher test score. It was later determined that Jill’s score on the test had been 38 percent, while Jonathan had scored 68 percent. It was also found that Johnathan had written the same test six months earlier as part of a previous application for an inspector’s job. Johnathan had improved his score by 22 percent. Joanthan had not been provided with a copy of the first test or been advised about the test results. This decision resulted in the union filing a grievance on behalf of Jill.

Sections from two relevant articles in the collective agreement were cited in the grievance.

Article 4. Management rights The Authority shall retain the exclusive right and power to manage its business and direct its working forces including but without restricting the generality of the foregoing, the right to hire, suspend, discharge, promote, demote and discipline any employee for just cause.

Article 10. Job postings 10.7 Seniority shall always be given utmost consideration in making promotions, demotions and transfers, and when skill, knowledge and ability are equal, seniority will prevail.

QUESTIONS 1. What arguments would the union make at the arbitration hearing?

2. What arguments would the employer make at the arbitration hearing?

3. As the arbitrator in this case, state whether you would uphold or dismiss this grievance. Give your reasons to support this decision.

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4. As an HRM professional working for RFTA what changes might you make regarding selection testing for unionized job postings?

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Appendix B Grievance and Arbitration

Northern Timber Company Northern Timber operates lumber cutting sites in remote areas of the province. Employees are flown in for 14 work days and then flown out for 14 days off. They live on site in trailers provided by the organization. They are covered by a collective agreement between the company and the Timber Workers Union.

The organization hired Josh Bradford as a timber cutter in 2012. In the course of Josh’s work, Josh operates a chain saw and other hazardous equipment. Prior to being hired, Josh was advised that substance use was permitted on the organization’s property, including the residences occupied by employees. The organization adopted this zero tolerance policy after it was determined that an employee who had been fatally injured on the job had been consuming alcohol the night before an accident. In June 2022, there was an incident in which a timber cutter was severely injured. A subsequent investigation determined that the employee had been smoking marijuana in their trailer prior to the accident. The organization and the union issued a joint announcement to employees as follows: The organization and union are committed to the safety of employees. Individuals who have been using substances are a risk to themselves and others. Employees must be alert and safety conscious. There have been incidents in which employees have been found to be in possession substances on the organization’s property. It has been determined that some employees are using substances on the organization’sproperty. The organization and the union are concerned about the use and possession of substances. This is a reminder that substances are not permitted on the organization’s property at any time. This includes an employee’s residence. The organization’s policy is that the use or possession of substances on the organization’s property is cause for immediate dismissal.

Northern Timber provided a copy of the announcement to each employee and required employees to sign an acknowledgement that they had received the statement. Josh signed an acknowledgement that he had received and read the statement. On August 10, a security guard thought he smelled marijuana in the area of Josh’s trailer. The security guard reported this to the health and safety officer, and together they investigated. When they knocked on Josh’s door and he opened it, the smell of marijuana emanated from Josh’s trailer. Josh allowed the security guard and health and safety officer to search his trailer. They found a pipe, 2grams of marijuana, and 3 company hand tools.

The next day Josh was called to a meeting with the site manager, Josh’s supervisor, and the health and safety officer. At the meeting, Josh admitted that the marijuana found in his residence was his and he had been smoking it the previous evening. The health and safety officer asked Josh how often he smoked marijuana. Josh stated that he had been smoking marijuana for over 10 years and in fact he smoked 2-3 joints every day, including 1 in the morning before he went to work. The management representatives reminded Josh about the organization’s employee assisCopyright © 2024 Pearson Canada Inc.

tance plan (EAP) that was available to employees. The site manager also suggested that Josh had been stealing some organization’s tools to pay for marijuana. Josh denied that he had stolen any company property and stated that he sometimes brought tools back to his residence at the end of the work day instead of returning them to a tool crib. When Josh was reminded that organizational policy required all tools to be returned at the end of each work day, he did not reply. Josh did not have any union representation at this meeting, After Josh left the meeting, the management team reviewed the situation. Despite the fact that Josh had not been involved in any previous misconduct or health and safety violations during his tenure with Northern Timber, a decision was made to terminate his employment. The Timber Workers Union Local 317 filed a grievance upon learning of management’s decision regarding Josh’s discipline. The chief steward, Jeff Lavoie, met with the HRM manager, Mohamed Mansour, and both agreed to expedite the grievance-arbitration process in this instance.

Within a week of Josh’s termination, he had sought counselling through the EAP service and was referred to a support group by his family doctor. The union’s grievance claimed that the organization had failed to provide Josh with due process in the handling of this disciplinary meeting. The grievance also stated that the imposed penalty for this infraction was too severe in light of Josh’s length of service and discipline-free work record since 2012. Finally, the union argued that the zero-tolerance policy regarding the use of substances had overstepped the management rights clause in the collective agreement. For all these reasons, the remedy sought by Local 317 was Josh’s immediate reinstatement to his job with full restitution for lost wages, benefits, and service credits to the date of his termination. Despite assurances from Jeff to Mohamed that this employee had also abstained from marijuana use for the previous 10 days, the organization remained firm following the Step 3 grievance meeting. In its follow-up to the Step 3 meeting, the company stated that because Josh had violated the zero-tolerance policy regarding the use of substances on company property and the risk of any such violation to health and safety considerations, the termination would stand.

Proceed as Instructed or Complete the Following 1. Assume that you are the HRM manager responsible for this file. Prepare a notice of termination that would be provided to Josh at the meeting.

2. Assume that you are the HRM manager. What steps should have been taken in the investigation of the incident involving Josh and what additional actions should management have taken in preparing for a meeting between the organization’s representatives and Josh.

3. Assume that you are Local 317 chief steward, Jeff Lavoie, who has just received notice that Josh has been terminated. Outline how you would proceed in light of management’s disciplinary action against Josh.

4. What arguments would representatives from both Northern Timber and Timber Workers Union make at the rights arbitration hearing?

5. Assume that you are the arbitrator in this situation. Outline your decision, providing reasons.

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Students are invited to access online resources on termination cases related to the use of substances and view arbitration decisions in preparing their arguments in this case.

SOURCE: Nadia Zaman, (February 27, 2018). Dismissal upheld for 2 employees caught smoking marijuana on break. Canadian HR Reporter. Thomson Reuters Canada Limited.

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Appendix C Contract Negotiation Simulation

Clean Right Partners Inc. You will be provided with further information and instructions regarding the analysis and a possible renewal of the collective agreement provided below between Clean Right Partners Incorporated and the Allied Service Union Canada. The outlined collective agreement has an expiry date listed in this simulation which may be altered by your instructor.

Background Clean Right Partners is an independent, private-sector operation located in a major urban centre in your province or territory. The organization was established in 1997 by brothers Michael and Zack Cummings. The brothers had previously owned a chain of dry cleaning stores which they sold to open Clean Right Partners. Their initial clients were two area hospitals and one long-term care facility. Due to the entrepreneurial spirit of the two brothers, the business grew quickly and over the next two decades has become a major player in health care, industrial uniform and linen cleaning services in the region. Clean Right Partners was unionized on two occasions: first, in 2007, for production and maintenance personnel (a total of 110 full-time and part-time staff represented by SEIU); then in 2020, by Allied Services Union Canada (ASU) for drivers and loading dock employees(a total of 19 full-time and part-time).The organization has a small human resources department with a director, health and safety coordinator, benefits coordinator, HRM assistant and HRM officer. The HRM director handles all union-related matters with the support from time-to-time of outside legal counsel. There have been two prior collective agreements between ASU and the organization. While the first collective agreement was achieved with the help of mediation after a rather acrimonious start, the second round of bargaining proceeded to a successful conclusion without the threats of either a strike or a lockout.

While Clean Right Partners is a major player in the health care and industrial uniform and linen markets in their region, there has been a strong rumour over the last six months of a possible corporate acquisition by a renowned provincial cleaning and linen service organization. The Cummings brothers are approaching retirement age yet maintain they are not entertaining any overtures from this or any other potential buyer. Needless to say, union members throughout the organization are somewhat anxious with this situation. The current collective agreement between the organization and ASU does not contain any language regarding contracting out or mergers and acquisition scenarios that may affect bargaining unit members.

Issues Arising Under the Collective Agreement The union’s business agent, union local president and bargaining committee began a concerted intra-organizational bargaining process with their parent union’s business agent and legal counsel, union local leaders and the general membership once notice to bargain had been served on the organization. The following priorities for the upcoming round of bargaining included: Copyright © 2024 Pearson Canada Inc.

FOR THE UNION •

Union security—delete Article 1.02 (e) and demand hiring more part-time employees to cover vacation leaves.

•

Vacation entitlement—increase entitlements—2 weeks (4%) after one year but less than 3 years; 3 weeks (6%) after 3 years’ service but less than 7 years; 4-weeks (8%) after 7 years but less than 11 years; and 5 weeks (10%) after 11) years (Article 11).

•

Management rights—eliminate language “who has acquired seniority” from current Article 3.01.

•

Compensation—increase annual shoe allowance to $175 per year (Article 11.03).

•

Compensation—cost-of-living adjustment to be negotiated in new contract (New).

•

Hours of work—language guaranteeing minimum # of hours reporting pay if shift is cancelled. (New).

•

Seniority—reduce probationary period (after which seniority is accumulated) from one hundred and eighty (180) calendar days to sixty (60) calendar days; and will have no seniority rights during that period (Article 14.02).

•

Leaves of absence—add any leave of absence language into the agreement in keeping with any LOA introduced by government through employment standards or other legislation during the term of the expired agreement. Negotiate up to ten paid days for any approved LOA now not paid by employer (New).

•

Job posting—eliminate second paragraph of Article 17.01.

•

Employee benefits—no action taken on promised employer commitment on long-term disability protect – see last sentence in Article 19.01.

•

Sick leave—increase monthly sick leave credit accumulation to two days (16 hours) per month and make adjustments based on this change to Article 20.01 and 20.02.

FOR THE ORGANIZATION •

Grievance procedure—introduce language before the reference to Step 1 that articulates the necessity of first having a “complaint stage” to allow the affected employee(s) to discuss the issue with the supervisor in an attempt to resolve the matter. Also suggest time limits associated with this process (Article 4—New).

•

Discipline and discharge—strike out “verbal” from first line in Article 5.02.

•

Employee record—replace time limit for clearing record from 10 months to 24 months (Article 6.01).

•

Compensation—change “will” to “may” in Article 11.02 regarding organization payment of parking tickets.

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•

Compensation—change safety shoe allowance period from 12 to 18 months (Article 11.03).

•

Sick leave—current accumulation formula but stop any “carry-over” or “pay-out” of unused credits from one year to the next (Article 20).

Another Important Matter While Clean Right Partners is a major player in the health care and industrial uniform and linen markets in their region, there has been a strong rumour over the last six months of a possible corporate acquisition by a renowned provincial cleaning and linen service corporation. The Cummings brothers are approaching retirement age yet maintain they are not entertaining any overtures from this or any other potential buyer. Needless to say, union members throughout the organization are somewhat anxious with this situation. The current collective agreement between the organization and ASU does not contain any language regarding contracting out or mergers and acquisition scenarios that may affect bargaining unit members.

Collective Agreement between CLEAN RIGHT PARTNERS INC. (hereinafter referred to as THE EMPLOYER)

and ALLIED SERVICE UNION CANADA LOCAL# 254 (hereinafter referred to as THE UNION)

FEBRUARY 1, 2019 – JANUARY 31, 2022

Index Article Article 1

Union Recognition & Scope

Article 2

Union Security

Article 3

Management Rights

Article 4

Grievance Procedure

Article 5

Discipline And Discharge

Article 6

Employee Record Copyright © 2024 Pearson Canada Inc.

Article 7

Arbitration

Article 8

Representation

Article 9

No Strikes/No Lockouts

Article 10 Statutory Holidays Article 11 Compensation Article 12 Vacations With Pay Article 13 Use Of Organization Vehicle Article 14 Seniority Article 15 Hours Of Work And Overtime Article 16 Leaves Of Absences Article 17 Job Posting Article 18 Bulletin Board Article 19 Employee Benefits Article 20 Sick Leave Article 21 No Discrimination Article 22 Term Of Agreement Letter of Understanding

Article 1 Union Recognition & Scope 1.01 The Organization recognizes the Union as the sole collective bargaining agent for all route persons (route and mat drivers), dock attendants and porters of the Organization in Anytown, Province save and except supervisors, persons above the rank of supervisor, clerical and sales staff and persons for whom any trade union held bargaining rights as of February 1, 2019.

1.02 Supervisors, or those above the rank of supervisor, not included in the bargaining unit shall not perform work normally assigned to employees in the Bargaining Unit except in the following circumstances: a. instruction or training; b. evaluation, route assessment or experimentation; Copyright © 2024 Pearson Canada Inc.

c. circumstances beyond the organization’s control including customer’s special request; d. when bargaining unit employees are not readily available; or e. replacing bargaining unit employee while on vacation 1.03 The organization agrees not to enter into any agreement or contract with its employees, individually or collectively, which in any way conflicts with the terms and conditions of this Agreement.

1.04 The word “employee” or “employees” wherever used in the agreement shall mean respectively an employee or employees in the Bargaining Unit, and wherever the masculine gender is used in this agreement, it shall include the feminine gender.

Article 2 Union Security 2.01 All employees who are presently employed by the organization must, as a condition of employment become and/or maintain their Union membership in good standing. For the purposes of this collective agreement, the sole definition of membership in good standing means that they must pay regular monthly Union dues, and periodic assessments uniformly required of all members in the bargaining unit.

2.02 New employees shall make application for Union membership on cards supplied by the Union prior to the completion of their probationary period and the organization will forward their membership application cards to secretary-treasurer of the Union following their probationary period.

2.03 The organization agrees to deduct monthly union dues from an eligible employee, from the first pay of each month and to remit the monies so deducted together with a list showing from whom and in what amount deductions were made, to the secretary-treasurer of the Union on or before the 15th day of the following month. The secretary-treasurer of the Union shall notify the organization by letter of any change in the amount of Union dues, and such notification shall be the organization’s authority to make the specified deductions.

2.04 The organization will, at the time of making each remittance hereunder to the secretarytreasurer of the Union, update the Union’s pre-billing statement showing the following information from whose pay deductions have been made: a. all monthly dues for members to be submitted with current address, postal code and social insurance number; b. on a monthly basis; i. new members to be listed in alphabetical order with current address, postal code, social insurance number and date of hire;

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ii. all terminations or resignations to be clearly identified with current address, postal code, social insurance number and date of termination or resignation; iii. addresses to be updated as well as name changes (i.e., marriage).

2.05 The organization will list the annual regular union dues paid by each employee on their income tax T-4 statement.

2.06 The Union agrees to indemnify the organization and save it harmless against any and all claims which may arise in complying with the provisions of Article 2.

Article 3 Management Rights 3.01 The Union acknowledges that it is the right of the organization to hire, promote, demote, transfer, classify and suspend employees, and also the right of the organization to discipline or discharge any employee for cause, provided that a claim by an employee, who has acquired seniority, that he has been discharged or disciplined without reasonable cause shall be the subject of a grievance and dealt with as hereinafter provided.

3.02 The Union further recognizes the right of the organization to operate and manage its business in all respects in accordance with its commitments and responsibilities. The location of the plants, the products to be manufactured or processed, the schedules of production, the methods, processes and means of manufacturing or processing used, the right to decide on the number of employees needed by the organization at any time, the right to use improved methods, machinery and equipment, and jurisdiction over all operations, building, machinery, tools and employees at the organization’s plants are solely and exclusively the responsibility of the organization. It is understood and agreed that breach of any of the plant rules or any of the provisions of this agreement shall be deemed to be sufficient cause for discipline or dismissal of an employee and may be the subject of a grievance.

3.03 The organization agrees that these rights and functions will be exercised in a manner consistent with the provisions of this collective agreement.

Article 4 Grievance Procedure 4.01 The organization and the Union agree that it is the purpose of the grievance procedure to amicably and fairly settle any complaints relating to the interpretation, application, administration or alleged violation of this collective agreement (hereinafter called a “grievance”), without, so far as possible, resorting to arbitration.

4.02 Step One Any grievance of an employee shall first be taken up between such employee(s), the applicable Union steward and the employee’s supervisor, within 7 working days of the occurCopyright © 2024 Pearson Canada Inc.

rence. The written decision of the Organization shall be returned to the Union within 7 working days.

4.03 Step Two Failing settlement under step one, the matter will be taken to step two. Within 14 calendar days, the steward who attended to step 1 and the chief steward, together with representatives of management for the functional area, will meet to review the grievance. The grievor may choose to be present at this stage of the procedure. The HRM manager or her designate may also be asked to attend at this stage of the procedure. The written decision of the organization shall be returned to the Union within 5 working days.

4.04 Step Three Failing settlement under step two, the matter will be taken to step three. The Union designates shall be the business agent and the Union local president. The organization’s designates shall be senior management representative for the functional area, or their designate, and the HRM manager. The grievance may be resolved by agreement and the decision shall be final and binding. This meeting must be conducted within 30 working days and the grievor and his steward shall be present and will not suffer any loss of wages.

4.05 General Provisions A Union policy grievance or a group grievance which is defined as an alleged violation of this collective agreement concerning the u as such, or all or a substantial number of employees in the Bargaining Unit, in regard to which an individual employee could not grieve may be lodged by an authorized representative of the u in writing with the organization at step 3 of the grievance procedure at any time within 0 full working days after the circumstances giving rise to such grievance occurred or originated, and if it is not satisfactorily settled it may be processed to arbitration in the same manner and to the same extent as the grievance of an employee.

A organization policy grievance may be lodged by the organization with the union in writing at step 3 of the grievance procedure and if it is not satisfactorily settled, it may be processed to arbitration in the same manner and to the same extent as the grievance of an employee.

4.06 Extension of Time Limits Any and all-time limits set forth in Article 4 for the taking of action by either party or by an employee may be extended at any time by mutual agreement of the parties, which shall be confirmed in writing.

Article 5 Discipline And Discharge 5.01 Notification Copyright © 2024 Pearson Canada Inc.

If the organization suspends or discharges an employee, the organization shall notify both the employee concerned and the steward in writing, within 2 working days, giving the reasons for such discharge or suspension.

5.02 Employee Representation A steward shall be present at any disciplinary meeting regarding verbal, written warnings, suspensions and discharges or any other meeting called to administer discipline. The organization will only administer discipline at a meeting face-to-face with the employee concerned and a steward present. In the event that a steward is not present, the action taken by the organization will be null and void.

If the organization discharges a u steward, the u steward will be entitled to representation in accordance with this Article with the u steward also having the additional right to be represented by the business agent at said meeting.

5.03 Discharges and Suspensions A bargaining unit employee who is discharged shall be given the opportunity to request a 10 minute interview with a union steward before leaving the organization’s premises. The organization will advise the employee of this right.

The organization reserves the right to suspend an employee pending an investigation. If an employee who has acquired seniority believes that they have been discharged or suspended without just cause, the grievance shall be presented at step three within 5) working days after notice has been given to the employee and the steward. If a suspension is grieved, the organization may elect not to put the suspension into effect until the grievance is settled, abandoned, or determined by reference to arbitration.

Article 6 Employee Record 6.01 Notice of disciplinary action, which may have been placed on the HRM file of an employee, shall not be relied upon after 10 months have elapsed since the disciplinary action was taken. This clause does not apply to infractions where violence in the workplace has taken place.

6.02 An employee, with 24 hours’ notice and on their own time, shall be allowed to inspect their own personnel file at a time convenient to the employee and HRM manager or their designate.

Article 7 Arbitration 7.01 Failing settlement under step 3 of any grievance between the parties arising from the interpretation, administration, or alleged violation of this ca, including any question as to Copyright © 2024 Pearson Canada Inc.

whether a matter is arbitral, such grievance may be taken to arbitration as hereinafter provided. If no written request for arbitration is received within a 30 day period of time after the decision in step 3 is given, the grievance shall be deemed to have been abandoned without prejudice.

7.02 The written notice referred to in Article 7.01 shall contain the names of 3 proposed arbitrators. The recipient of such notice shall agree to 1 of the above-mentioned arbitrators or propose the names of 3 different arbitrators in the written reply thereto. If the parties fail to agree upon an arbitrator, the arbitrator shall be appointed by the Minister in accordance with the labour relations act.

7.03 The arbitrator appointed shall hear and determine the matter and shall issue a decision which shall be final and binding upon the parties and upon any employee affected by it.

7.04 The arbitrator shall not be authorized to make any decision inconsistent with the provisions of this ca, nor to alter, modify or amend any part of this ca.

7.05 The parties will each pay one-half of the remuneration and expenses of the arbitrator selected by the parties or appointed by the minister.

7.06 Any and all-time limits fixed by Article 6 for the taking of action by either party may be extended at any time by mutual agreement of the parties, which shall be confirmed in writing.

7.07 The organization and the u agree that grievances may be selected to be heard in an expedited format by mutual agreement. In the event there is no agreement the grievance will proceed through the normal course of arbitration described above. In the expedited format the parties themselves, managers for the organization and business representative for the u will present their own cases before the arbitrator. The parties will not be permitted to cite legal cases in argument. Decisions in the expedited process will be final and binding but non-precedent setting.

7.08 Arbitrators must be selected by mutual agreement and must be able to convene a hearing within thirty days of the referral. For expedited cases, arbitrators shall be instructed to render an oral decision on the day of the hearing or a written decision no more than fortyeight hours following the hearing.

Article 8 Representation 8.01 The u’s business agent must make arrangements with the general manager of the organization or their designate to visit the plant of such organization. Such access shall not be unreasonably denied.

8.02 The Union shall have the right to appoint or elect 1 steward who shall have completed the probationary period.

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Union Stewards shall be permitted to take up grievances during working hours without loss of pay. It is understood that stewards will have to do the work assigned to them by the organization, and if it is necessary that they investigate a grievance during working hours, they will not leave their work before obtaining the permission of their immediate supervisor, with said permission not being unreasonably withheld. When returning to their regular work, they will report themselves to their immediate Supervisor. If these conditions are met, the organization agrees that they will not lose pay in

such circumstances.

In any meeting regarding the renewal of this Collective Agreement with the organization, the u steward will not suffer loss of wages and will be paid applicable rates per Collective Agreement by the organization. No overtime shall be paid.

8.03 The organization agrees to give a one day leave of absence without loss of regular pay to one steward at each site for a Union training session. The u agrees to give the organization 4 weeks’ notice of the date.

8.04 The organization agrees to recognize one employee, selected by the Union Steward, to act as alternate steward to assist in the presentation of any proper grievances that may arise, in the event that the steward is absent from work. The organization will be advised in writing of the name of the alternate Steward once selected.

Article 9 No Strikes/No Lockouts 9.01 The u agrees that there shall be no strike and the organization agrees that there shall be no lockout during the term of this ca. The words “strike” and “lockout” shall be as defined in the labour relations act.

9.02 The organization agrees that drivers will not be required to cross legal picket lines.

9.03 The u further agrees that it will not involve the organization either directly or indirectly in any dispute, which may arise between any other employer and the employees of such other employer.

Article 10 Statutory Holidays Copyright © 2024 Pearson Canada Inc.

10.01 Where any of the following statutory holidays: New Year’s Day

Family Day

Good Friday

Victoria Day

Canada Day

Civic Holiday

Labour Day

Thanksgiving Day

Christmas Day

Boxing Day

falls on what would otherwise be a working day, all employees shall receive payment at their regular rate of such holidays, subject to the following conditions. a. To be eligible for holiday pay, an employee must work the full work day immediately preceding the holiday and the full work day immediately following such holiday unless one of these days was the regularly scheduled day off for the employee or the employee is off work owing to a verified illness; b. If an employee works on one of the above named paid statutory holidays, he will receive payment at time and one-half (1½) for the hours actually worked by them in addition to receiving his holiday pay; c. Where one of the aforementioned statutory holidays falls during an employee’s approved vacation period or on an employee’s day off, they shall be allowed an extra day’s vacation, or pay in lieu upon agreement of the parties. The organization’s decision shall be made following a consultation with the employee. Where the holiday falls on a Saturday or Sunday, the employees shall receive a regular day’s pay for such holiday or a day off in lieu at a mutually convenient time, subject to the conditions outlined herein.

10.02 In the event a statutory holiday is proclaimed by either the federal, provincial, or territorial government, such holiday shall also be observed, if not already listed in the above holidays.

10.03 Regarding employees assigned to a 5 day work week or a 4 day work week: a. Employees assigned the 5 day work week will be paid 8 hours’ pay at the appropriate hourly rate for the paid holiday which falls on the employee’s regular work week. If a holiday falls on a 5 day employee’s scheduled day off, they shall be paid 8 hours’ pay at his hourly rate for the holiday and their work week shall remain unchanged for such week. b. Employees assigned the 4 day work week will be paid 10 hours’ pay at the appropriate hourly rate for the paid holiday which falls on the employee’s regular work week. If a holiday falls on a 4 day employee’s scheduled day off, they shall be paid 10 hours’ pay at their hourly rate for the holiday and their work week shall remain unchanged for such week.

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Article 11 Compensation 11.01 The following hourly rates shall be effective during the term of this agreement: Classification

Feb 1 2019

Feb 1 2020

Feb 1 2021

Route Driver

23.82

24.43

25.45

Mat Driver

21.29

21.84

22.75

Dock Attendant

16.11

16.52

17.21

Porter

14.98

15.36

16.00

11.02 The organization will pay for parking tickets received by drivers in the course of their duties for unavoidable parking infractions. It is agreed that the organization shall be the judge of whether or not the infraction was unavoidable. In the event the supervisor declines payment of a parking ticket they will give reasons in writing if requested to do so by the employee.

11.03 Safety Shoes The organization agrees to contribute the sum of $135.00 for one pair of safety shoes per calendar year, upon production of a receipt of purchase, to employees who are required by the organization or by the organization’s customer to wear CSA approved safety shoes or boots.

11.04 The organization will endeavor to pay any error in pay resulting in underpayment of $100.00 or more within 24 hours of determination of the error and any error in pay of less than $100.00 on the first paycheque following the determination of the error, if practicable, and, if not, then on the following paycheque.

The union agrees that any error in pay resulting in overpayment will be deducted from the first paycheque following determination of the error, if practicable, and, if not, then in the following pay period.

Article 12 Vacations With Pay 12.01 The organization will grant to all employees to whom this article is applicable, a vacation period with pay.

12.02 The basis for payment of vacation pay and length of vacation will be as follows: Length of Service as of April 1

Vacation Entitlement with Pay

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Less than 1 year

1 day of vacation with pay for each full calendar month of employment up to a maximum of 10 days with vacation pay of 4% 4%) of earnings during the 12 months immediately preceding the first day of May in that year

1 year but less than 5 years

2 weeks–4%

5 years but less than 12 years

3 weeks–6%

12 years but less than 25 years

4 weeks–8%

25 years and greater

5 weeks–10%

12.03 Any employee who was prevented from taking their vacation during the vacation period due to illness or accident and who will not return to work by the end of the vacation period shall receive their vacation pay not later than December 30t.

12.04 Vacations must be taken in the vacation period and, based upon their seniority, employees shall have the right to take 1 week or all weeks of their vacation at one time, within the vacation period except as otherwise provided in this agreement. Employees shall not be entitled to take vacation during the Christmas period. The organization will pay an employee their vacation pay for the period for which the vacation is to be taken on the pay day immediately preceding the employee’s vacation, provided the employee so requests in writing at least 2 weeks prior to the said pay period.

12.05 An employee who is terminated, resigns or quits shall receive, with their last pay, vacation pay in accordance with their entitlement, that is, 4%, 6%, 8% or 10%.

12.06 The selection of vacation periods by supervisors will not affect employees in the bargaining unit in their selection of vacation periods. The organization will post available vacation periods by March 1, the employees will indicate their preference by March 30 and the organization will post the vacation schedule by April 15. Employee seniority will determine vacation preference. Two employees may take vacation in the same week provided they have different supervisors. Two drivers can take holiday in the same week provided they have different supervisors, however, no employee shall take vacation during the Christmas period.

12.07 It is the organization’s responsibility, whenever possible, to have trained personnel of the rank of Supervisor or higher to perform the work normally performed by a route employee during their absence due to vacation or illness.

Article 13 Use Of Organization Vehicles Copyright © 2024 Pearson Canada Inc.

13.01 Drivers shall not be obligated to drive vehicles to and from servicing garages on their own time but may agree to do so. Drivers should not use their own vehicle for organization business. No drivers will be expected to do special deliveries after the completion of their route. Any and/or all deliveries after the completion of their route that day will be made by a supervisor or other manager so designated by the organization.

Article 14 Seniority 14.01 Seniority as referred to in this agreement shall mean length of continuous employment in the bargaining unit, dating from the date the employee was last hired as a member of the bargaining unit.

14.02 An employee will be considered temporary for the first 180 calendar days and will have no seniority rights during that period. After 180 calendar days, his seniority shall date back to the day on which their employment began.

14.03 The last employee hired shall, in the case of layoff, be the first laid off and the last laid off shall be the first rehired provided the senior employee is qualified and capable of performing the work.

14.04 Employees who have been laid off due to lack of work and subsequently re-employed will have their length of service determined by the actual time they have been on the organization’s payroll, provided such employees return to work when notified, and subject to the conditions of Section 14.06.

14.05 Any employee who has been laid off for a continuous period of 12 months or more will lose any previously acquired seniority and will be rehired only as a new employee.

14.06 Any employee who has been laid off, but who still retains his seniority, and who is notified to return to work, will lose their seniority unless they notify the organization within 5 days that they are intending to return to work and unless they returns to work as soon as possible after receiving notification, and in any event, within 7 days after communication of such notice. Such notification shall be by email.

14.07 An employee shall lose their seniority and employment will be terminated if they: a. voluntarily quits; b. is discharged and not reinstated through the grievance and arbitration procedures; c. is absent from work for 3 consecutive days without a valid reason; d. overstays an authorized leave of absence without valid reason; or e. fails to report for work within 7 calendar days after the date when a notice of recall to full-time work has been sent by the organization by courier to their last address on file.

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14.08 Seniority lists will be revised each 6 months; a copy of the lists will be posted in the plant and a copy given to the union and unless objected to within 7 days, shall be deemed to be conclusive.

14.09 In the event that any employee covered by this agreement should be promoted to a supervisory position beyond the scope of this agreement, they shall retain the seniority previously acquired and shall have added thereto the seniority accumulated during the first3 months while serving in such supervisory capacity.

Such an employee shall be permitted to return to the bargaining unit to the route they held at the time of promotion: a. if the route they held at the time of promotion is held by an employee with less seniority; and b. the route he held at the time of promotion is largely intact; and c. the return is within t3 months from the date of their promotion.

14.10 It shall be the duty of the employee to notify the organization and the union promptly of any change of address and telephone number. If the employee fails to do so, the organization and the union shall not be held responsible for failure to reach this employee.

Article 15 Hours Of Work And Overtime 15.01 a. Except as is otherwise specifically provided in sub-clause 15.01 (b) hereof, an employee who is required to report for work during their regular work week shall receive for the regular work week, at least 40 hours’ pay at their gross rate, provided that they is available to perform 40 hours of work in such week; b. an employee shall not be entitled to the guarantee above, where they are displaced upon the return to work of another employee whom they were replacing.

Such guarantee shall be reduced by any or all of the following: i. for all time lost by the employee due to lateness or absence from work; ii. for refusing to perform the work assigned, in accordance with the paragraph below; or iii. for voluntarily leaving prior to the end of a shift.

The weekly pay guarantee does not operate where an employee has been laid off.

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15.02 A normal work week shall consist of 40 scheduled hours in f5 or less consecutive days, with 2 consecutive days off. Overtime at the rate of time and one-half 1½ the employee’s basic hourly rate shall be paid for all work performed in excess of 40 hours in a week.

Employees working a 4 day work week consisting of 4 ten hour days between Monday and Friday inclusive must have Saturday and Sunday as their regular days off and a third day off as designated by the organization. Overtime at the rate of time and one-half 1½ the employee’s basic hourly rate shall be paid for all work performed in excess of 40 hours in a week.

15.03 Overtime at the rate of time and one-half 1½ an employee’s basic hourly rate shall be paid for all work performed on Saturday and overtime at double the employee’s basic hourly rate shall be paid for all work performed on Sunday, save and except where Saturday and/or Sunday are worked as part of an employee’s regularly scheduled work week in which case overtime at the rate of time and one-half 1½ the employee’s basic hourly rate shall be paid for all work performed on such employee’s sixth consecutive day of work and double the employee’s basic hourly rate shall be paid for all work performed on such employee’s seventh consecutive day of work. The parties agree that grievances concerning overtime payment shall be expedited.

15.04 To qualify for overtime pay the employees must contact management explaining the reasons that potentially will put them into an overtime situation and await further instruction.

If instructed to perform the work, the employee shall be paid at the overtime rate pursuant to clause 15.02.

An employee shall not be threatened with nor disciplined for claiming overtime pay. If there is consistently a failure in completing the route within the normal hours of work management will review the employee’s performance and study of the route.

15.05 If an employee is injured after they has commenced work and is thereby incapacitated from carrying out his or her duties and requires transportation, management shall arrange and pay for the cost of transporting the employee to and from the hospital, if any.

The Organization will pay the employee for any hours they missed from the duration of his or her regularly scheduled shift because of the injury if the employee is unable to complete his or her regular shift.

15.06 Vehicles shall be kept in a safe operating condition and it is the employees’ responsibility to report to management any unsafe condition of their vehicle. An employee who has reported an unsafe condition and who believes it has not been corrected may file a grievance at step 2 of the grievance procedure. No driver shall be required to take out a truck which has been declared unsafe by the Ministry of Transportation or a Police.

15.07 Where an employee challenges the organization’s assessment of workload on a route, a reassessment shall be done by the organization with the driver involved performing the route on the same day in another week.

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15.08 A daily time record shall be maintained by the organization at its place of business. A time keeping device shall remain in operation during the term of this agreement.

Article 16 Leaves Of Absences 16.01 The organization may grant leave of absence without pay if an employee requests it in writing from the management.

16.02 The organization will grant parental leave, without pay, and without loss of seniority and benefits, in accordance with the provisions of the employment standards act of the province or territory to those employees who make application on forms supplied by the organization.

16.03 The organization shall grant leave of absence without loss of seniority to an employee with seniority, who is called to, and serves as a juror in any court. The organization shall pay such employee the difference between their normal earnings and the payment received for jury service. The employee will present proof of service and attendance and the amount of pay received. Payment will be made for 25working days maximum. The days eligible for such payments shall be scheduled working days, which the employee would otherwise have worked. To be eligible for such pay, the employee must report for work immediately upon being released from such duty if such release occurred 8 hours prior to the start of their next scheduled shift.

16.04 In the event of the death of a member of an employee’s immediate family, the employee will be granted a leave of absence and will be reimbursed for time necessarily lost from work up to a maximum of 3 days for the purpose of arranging and attending the funeral of the deceased.

The term “a member of the employee’s immediate family” means spouse, common law spouse, child or parent of the employee.

In the event of the death of a brother or sister of an employee, the employee will be granted a leave of absence with pay up to a maximum of 2 days subject to the same conditions as above.

In the event of the death of a mother-in-law, father-in-law or grandparent of an employee the employee will be granted a leave of absence with pay up to a maximum of 1 day subject to the same conditions as above.

16.05 On request the organization will grant a leave of absence without pay of up to 14 days in the event of the death of an employee’s spouse or child.

16.06 An employee who is off work by reason of leave of absence granted by his organization or by reason of leave for sickness or accident up to 2 calendar months will be returned to the route they was on at the time of going on leave provided the route is still substantially intact on their return.

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Article 17 Job Posting 17.01 The organization will provide a notice of a permanent route opening which it intends to fill. The notice shall be posted by the organization on the website and bulletin board. An interested employee shall request in writing to the human resources management department by the stated deadline to fill the posted vacancy. In the event an employee’s request is not granted, the human resources manager, at the employee’s request, will meet with the employee to explain the reason(s) for the decision.

The organization is not required to provide notice of subsequent openings which occur as the result of the above procedure. An employee who has not been on one route for at least 2 years will not be entitled to apply for a position according to this procedure, and an employee who filled a position as a result of this procedure will not be entitled to apply for a subsequent position within 2\ years of filling the position.

Article 18 Bulletin Board 18.01 The organization agrees to provide a bulletin board in an area accessible to members of the bargaining unit for the purpose of posting notices of union meetings and official union business. Notices will be signed and posted only by officers of the union. Notices will not be posted without prior management approval which will not be unreasonably withheld.

Article 19 Employee Benefits 19.01 The organization will continue to pay for the cost of benefits as described below. The organization agrees to maintain, for the life of the agreement, the benefits outlined below, it being understood that the administration and application of such benefits are within the sole responsibility of the benefit providers.

Benefits

Payee

New Hires

Life Insurance

organization 100%

organization 50% / Employee 50%

AD&D

organization 100%

organization 50% / Employee 50%

Dependent Life

organization 100%

organization 50% / Employee 50%

Health

organization 100%

organization 50% / Employee 50%

Dental

organization 50% / Employee 50%

Not Applicable

A benefit plan summary (booklet) will be provided by the insurance carrier.

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Furthermore, the organization agrees to source and implement an employee paid long term disability plan.

Article 20 Sick Leave 20.01 Seniority employees will accumulate a half-day per month to a maximum of 6 days 48 hours in a full calendar year. Any unused days will be paid out annually.

20.02 An employee who has not accumulated 6 full days in his sick leave bank at the time of absence due to sickness will nevertheless receive paid sick leave to a maximum of 6 days in the calendar year, provided: • that further sick days which are credited to their bank during the calendar year are used to reduce any outstanding balance of sick days; and • that in the event the employee ceases employment any outstanding balance will be used to reduce any other payments which may be owing by the organization.

20.03 The Organization has the right to require and will pay for the cost of the medical certification for the purpose of verifying absence due to illness for an employee who is absent 3 consecutive days or more unless there is a pattern of abuse in which case the organization may immediately request the said certification.

Article 21 No Discrimination 21.01 The parties agree to comply with the applicable provincial or territorial Human Rights Code. The organization, the union and the employees agree that they will at all times operate within the spirit of mutual respect for each other as parties and as individuals. They further agree to abide by organization policies and rules regarding intoxication, substance abuse, and a harassment and violence free workplace.

21.02 The organization, the employees and the union shall not discriminate against employees with respect to terms and conditions of employment on the grounds of race, creed, colour, age, sex, marital or parental status, religion, nationality, ancestry, place of origin, family relationship, place of residence or sexual orientation, in accordance with the provisions of the human rights code. Disputes under the human rights code will be processed through the grievance procedure under this agreement.

Article 22 Term Of Agreement

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22.01 This cashall, unless changed by mutual consent, continue in full force and effect until January 31, 2019. Either party may notify the other in writing within ninety (90) days immediately prior to the expiration date that it desires to amend this collective agreement.

22.02 Negotiations shall begin as soon as possible following notification for amendment as provided in the preceding paragraph.

22.03 If, pursuant to such negotiations, an agreement is not reached on the renewal or amendment of this collective agreement prior to the current expiry date, this collective agreement shall continue in full force and effect until a new collective agreement is signed between the parties, or until conciliation proceedings prescribed under the provincial Labour Relations Act have been completed, whichever date should first occur.

22 January, 2019

Dated at Anywhere this day of FOR:

FOR:

Clean Right Services Inc.

ASU Canada. Local #254

R K Sonnenberg

Timothy Weatherbee

Ray Sonnenberg, General Manager

Tim Weatherbee, Business Agent

L. Enright-Lowen

Ali Aboud

Lucy Enright-Lowen,

Ali Aboud

Human Resources Manager

President, Union Local #254

Letter of Understanding BETWEEN: CLEAN RIGHT PARTNERS INC. and ALLIED SERVICE UNION CANADA, LOCAL# 254 Notwithstanding article 5.12, where exceptional circumstances exist and the organization cannot have a face-to-face meeting with the employee, the organization shall contact the unionbusiness agent. The organization and the business agent shall address the matter without the need for a face-to-face meeting with the employee.

Signed at Anytown this

7

day of

September

, 2019.

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For the Organization L. Enright-Lowen

For the Union Ali Aboud

Lucy Enright-Lowen,

Ali Aboud

Human Resources Manager

President, Union Local #254

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